Execution ​‘Volunteer’ First to be Put to Death in Mississippi in Nine Years

Mississippi car­ried out its first exe­cu­tion in more than nine years on November 17, 2021, putting to death a man with men­tal health dis­or­ders who had waived his appeals. David Neal Cox became at least the 150^th per­son since exe­cu­tions resumed in the United States in 1977 to drop their appeals and ​“vol­un­teer” for exe­cu­tion. Executions of vol­un­teers account for 10% of all U.S. exe­cu­tions in that period.

In February 2021, a Union County judge ruled that Cox — who pled guilty in 2012 to cap­i­tal mur­der for killing his estranged wife and sex­u­al­ly assault­ing his step-daugh­ter — was com­pe­tent to give up his appeals. He first sought to waive his appeals in 2018, writ­ing to the Mississippi Supreme Court, ​“I seek in earnest to wave all my appeals imme­di­ate­ly, I seek to be exe­cut­ed as I do here this day stand on MS Death row a guilty man wor­thy of death. Please grant me this plea.” 

The court ordered a com­pe­ten­cy hear­ing in a low­er court but, as is com­mon with vol­un­teers who have a his­to­ry of men­tal ill­ness, he quick­ly changed his mind. Four days after the state court’s order, Cox’s lawyers filed a motion with an affi­davit from Cox say­ing that ​“he want­ed to with­draw his com­mu­ni­ca­tions and let­ters to the Court, he did not want to dis­miss his attor­neys, and he dis­avowed any waiv­er of his rights to con­tin­ue his post-con­vic­tion case. He claimed that he was depressed and had not been on any anti­de­pres­sant med­ica­tion for several years.”

Several months lat­er, Cox changed his mind again, ask­ing the court to recall the affi­davit and dis­miss his appeals. Cox’s new let­ter to the court said, ​“I am wor­thy of death & I do not wish to chal­lenge the State of Mississippi any fur­ther, I seek the ter­mi­na­tion of all coun­sel & all appeals on the grounds of inef­fec­tive and inef­i­cent [sic] counsel.”

At a com­pe­ten­cy hear­ing on February 11, 2021, Union County Circuit Court Judge Kent Smith per­mit­ted Cox to waive his rights. Judge Smith wrote that Cox ​“has made a deci­sion that I find to be com­pe­tent and know­ing, will­ful and vol­un­tar­i­ly to pro­ceed with his exe­cu­tion.” Cox’s lawyers appealed that rul­ing, but pros­e­cu­tors argued that they lacked stand­ing to do so against Cox’s wish­es. On October 21, 2021, the Mississippi Supreme Court upheld the low­er court’s deci­sion, allowed Cox to dis­miss his appeals, and grant­ed his request to set an execution ordered. 

Noting that ​“Cox repeat­ed­ly has artic­u­lat­ed a desire to dis­miss all coun­sel and to end all chal­lenges to his con­vic­tion and death sen­tence,” the court found it ​“abun­dant­ly clear from the record pre­sent­ed to this Court that Cox has the men­tal capac­i­ty to appre­ci­ate his posi­tion and to make ratio­nal choic­es regard­ing his defense.” The court also direct­ed his lawyers not to file any appeals seek­ing to halt the execution.

Mississippi exe­cut­ed Cox while a chal­lenge to the state’s lethal-injec­tion pro­to­col, filed on behalf of two death-row pris­on­ers in 2015, was still pend­ing. Cox is not a par­ty to that litigation. 

Mississippi Corrections Commissioner Burl Cain con­firmed in late October 2021 that the state had obtained drugs for Cox’s exe­cu­tion but would not iden­ti­fy the source. ​“I’m not sup­posed to talk about the drugs too much,” Cain told the Associated Press. Mississippi has a secre­cy law in place that con­ceals the iden­ti­ty of exe­cu­tion drug suppliers.

Ambivalence From Affected Families

The fam­i­ly of Cox’s vic­tim, his estranged wife Kim Kirk Cox, expressed ambiva­lence about the impend­ing exe­cu­tion. Lindsey Kirk, the victim’s daugh­ter, told the Tupelo, Mississippi Daily Journal, ​“I am con­flict­ed. I am hap­py about it, then I’m a bad per­son because some­one is dying. But then I don’t want to be sad about it because I’m not going to miss him.”

David Cox mar­ried Kirk’s moth­er when Kirk was very young, and she said she ​“kind of grew up think­ing David was my dad.” ​“He had to be a nice guy at one time or my mom wouldn’t have brought him around,” she said. ​“I believe drugs changed him. I hate to blame it all on the drugs. There had to be some kind of evil in him anyway.”

Cox’s fam­i­ly and friends report­ed that his per­son­al­i­ty changed and he began abus­ing his wife after he became addict­ed to painkillers that he was pre­scribed for a back injury. That addic­tion led to an addic­tion to crys­tal metham­phet­a­mine, which he then began manufacturing himself.

Kirk said she was ini­tial­ly angry when she learned that Cox’s exe­cu­tion would be sped up, because she want­ed him to be forced to spend more time reflect­ing on what he did to her, her moth­er, and her broth­ers. Of the exe­cu­tion, she said, ​“I don’t think it will bring any clo­sure. I don’t think I could ever for­give him for what he did. He took a lot from all of us. But I don’t want to hate him for it.” She said she planned to attend the exe­cu­tion because ​“I want to be there for my mom.” 

“I would like to think I am at the point where I can for­give,” Kristie Salmon, the victim’s sis­ter, said. ​“I don’t hold the hate or anger like I used to. But that has only been with­in the last year.” While she also planned to attend the exe­cu­tion, she told the Daily Journal, ​“I don’t know how I feel about [the exe­cu­tion]. I’m just ready for it to be over.”

Cox’s expe­dit­ed exe­cu­tion may also affect anoth­er fam­i­ly. Amber Miskelly believes that Cox may have known what hap­pened to her moth­er, Felicia Cox, who dis­ap­peared in 2007. Felicia Cox was Kim Cox’s sis­ter-in-law, and David Cox was the last per­son known to have seen her alive. Miskelly wrote to David Cox ask­ing for any infor­ma­tion he has about her moth­er, but she wor­ried that he would not pro­vide the infor­ma­tion with his exe­cu­tion com­ing up so soon.

The Systemic Impact of Volunteers

Volunteers have had an out­sized impact in resum­ing state exe­cu­tions across the nation. Four of the first five pris­on­ers exe­cut­ed in the United States after the Supreme Court upheld the con­sti­tu­tion­al­i­ty of cap­i­tal pun­ish­ment in 1976 were vol­un­teers and vol­un­teers were the first to be exe­cut­ed in 15 states and by the fed­er­al gov­ern­ment. In four states — Connecticut, New Mexico, Oregon, and Pennsylvania — the only pris­on­ers exe­cut­ed have been volunteers.

Cox’s exe­cu­tion marked the sixth time a state restart­ed exe­cu­tions after a pause of between five and 21 years by acced­ing to the wish­es of a vol­un­teer. In addi­tion, Scott Dozier attempt­ed to force Nevada to put him to death in 2018 after a 12 year exe­cu­tion pause. His exe­cu­tion was halt­ed when a state court barred the Nevada Department of Corrections from using drugs obtained in ​“bad faith” and ​“by sub­terfuge”, and he sub­se­quent­ly hanged him­self in prison.

[Updated to reflect that Mississippi exe­cut­ed David Cox on November 17, 2021.]