Appeals court tosses out order blocking Mississippi executions

JACKSON, Miss. — An appeals court Wednesday upheld Mississippi’s method of lethal injection, rejecting arguments from death row inmates who opposed the state’s plan to use drugs not specifically approved by state law.

The 5th Circuit U.S. Court of Appeals ruled that U.S. District Judge Henry T. Wingate ruled incorrectly in August when he issued a preliminary injunction blocking the state from executing prisoners.

The opinion by Circuit Judge Jennifer Walker Elrod rejected arguments by death row prisoners that Mississippi can’t execute them because the state no longer will be using the particular class of drugs required by state law. She wrote that if inmates want to pursue such claims, they should do so in state court.

Mississippi law requires a threedrug process, with an “u lt ra shor tact i ng barbiturate” followed by a paralyzing agent and a drug that stops an inmate’s heart. But Mississippi and other states had increasing difficulty obtaining such drugs after 2010, as manufacturers began refusing to sell it for executions.

The state says it intends to use another sedative, midazolam, which doesn’t render someone unconscious as quickly. The U.S. Supreme Court recently upheld as constitutional Oklahoma’s use of midazolam.

“Mississippi’s statutory requirements and the associated lethal injection protocol are not ‘atypical ... in relation to the ordinary’ in comparison with other states’ execution protocols,” Elrod wrote.

Prisoners said they faced risk of torture during an execution because they might remain conscious after midazolam was administered, and such pain violates the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment.

Elrod rejected those arguments and sent the case back to Wingate for further action. Jim Craig, who represents two of the prisoners who sued, called the ruling “disappointing,” but said he expects to ask Wingate for another preliminary injunction on other grounds.