State Executions Illegal, Attorneys Say

Two Jackson attorneys are asking the state to delay multiple executions to get itself legal on the use of a new euthanasia drug.

“There’re three guys, plaintiffs, who the attorney general has already requested execution for. Under current condition, the state would be illegally executing condemned prisoners,” attorney David McCarty said.

McCarty and attorney James Priest Jr. filed the civil suit in Hinds County Circuit Court last week on behalf of the anti-death penalty Mississippi Educating for Smart Justice Inc. and prison-reform group Mississippi Cure Inc., as well as death row inmates Rodney Gray, Robert Simon and Benny Joe Stevens.

Attorney General Jim Hood requested the court set an April 20 lethal injection date for Simon for multiple murders in 1990, although his execution is on hold while the court assesses his mental health. Hood requested Gray die by lethal injection on April 27 for the 1994 slaying of 79-year-old Louin resident Grace Blackwell. Hood requested Stevens’ execution date for May 4 for multiple murders in 1998.

Soon after asking for the April 20 execution date for Simon, Hood announced that the state might have to change one of the three drugs it uses in its lethal-injection procedure. McCarty said the expiration date of the state’s supply of sodium pentothal was March 1. Epps told reporters that the state will likely turn to the use of pentobarbital, commonly used as a euthanasia drug for pets.

But McCarty said the state has yet to go through proper channels for using the new drug.

“They adopted a protocol for lethal injection that sets out to the minute what they have to do–where the warden is at any given time, where the staff is, down to the minute. But the state of Mississippi ran out of one of the drugs in the three-drug cocktail,” McCarty said. “We expected the state to then adopt a new protocol that would set out the drug that they want to use now and where they’re going to get it, how much money it costs, the science behind it, and they didn’t do that. They want to use a totally different drug. They’ve got rules, and they just haven’t followed them.”

Mississippi is not the only state running low on the death-row drug. Sodium pentothal is one of the most common execution drugs used in the U.S., but The New York Times reported in January that the lone American manufacturer, Illinois-based Hospira Inc., said it would no longer manufacture the drug.

The company’s European manufacturing plant in Italy refuses to export the drug to the United States for use in executions, along with the rest of the anti-capital punishment European Union. The company said in a January statement that it was pulling the drug after discussions with Italian authorities.

“Based on this understanding, we cannot take the risk that we will be held liable by the Italian authorities if the product is diverted for use in capital punishment. Exposing our employees or facilities to liability is not a risk we are prepared to take,” the company said in January.

“Given the issues surrounding the product, including the government’s requirements and challenges bringing the drug back to market, Hospira has decided to exit the market.”

The nationwide shortage is forcing multiple states to use other options, including pentobarbital, which is powerful enough to render parts of the body toxic, even after death.

The Mississippi Department of Corrections did not immediately return calls.

McCarty said the state would probably have to delay executions if it complied with its own laws in using the drug, considering the lengthy process of required public forums and other things.

“They set an immediate date for these executions, and complying with state law would require at least 25 days for the public to have input in the process,” McCarty said. “But the goal here is nothing more, nothing less, than to force the state to follow the law. Frankly, the law is not very complex, but it does allow for public-comment period to address the new drug they want to use, and it allows some public input into what is really a major process.”

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