Mississippi Gives Department of Corrections Unprecedented Discretion Over Execution Methods

Mississippi corrections officials will have unprecedented discretion in selecting how the state’s death-row prisoners will be executed under a new law that takes effect July 1, 2022.

Mississippi authorizes execution by lethal injection, electrocution, firing squad, or nitrogen hypoxia. The law, which received final legislative approval March 29 and was signed by Governor Tate Reeves April 14, provides the Commissioner of the Mississippi Department of Corrections (MDOC), MDOC’s Deputy Commissioner for Finance and Administration, and the MDOC Deputy Commissioner for Institutions with statutory authority to select “at the[ir] discretion” select which of those methods will be used to execute a prisoner.

Under the state’s previous death-penalty law, death-row prisoners could elect which method would be used for their execution. The new law places that decision in the hands of the Commissioner of Corrections, who must inform the prisoner of the method to be used within seven days of receiving an execution warrant. The law does not tell the commissioner how to determine which method to be used and provides no transparency regarding how that choice is made.

The combination of Mississippi’s extreme execution secrecy and late disclosure of its intended execution method provides prisoners no meaningful notice of how they will be put to death. Those factors “basically guarantee[ ] a lot of last-minute litigation” after a death warrant is issued, Death Penalty Information Center Deputy Director Ngozi Ndulue told Mississippi Today.

“We put language in the final draft saying it is our policy, as the Legislature, that lethal injection be chosen,” bill sponsor Rep. Nick Bain (R-Corinth) said. “That gives (the commissioner) the idea that we want lethal injection and that should be the way to do it.” MDOC Commissioner Burl Cain said in a statement, “The courts are the ones who decide the penalties for crime, not MDOC. We just hold the keys. When the court orders me, I am required by Mississippi statute to carry out the sentence.”

Bain told Mississippi Today that he filed the execution procedures bill at the request of the governor and attorney general because the state was finding it difficult to obtain lethal-injection drugs. Mississippi’s last execution was that of David Cox on November 17, 2021. Cox waived his appeals and “volunteered” for execution, becoming the first person put to death in Mississippi in more than nine years. Cox was executed by lethal injection, even as the state’s protocol was the subject of a legal challenge from other death-row prisoners.

Mississippi did not reveal the source of the drugs used to execute Cox because a secrecy law conceals the identity of execution drug suppliers. “I’m not supposed to talk about the drugs too much,” Cain told the Associated Press at the time.

Prisoners throughout the country have challenged the constitutionality of various methods of execution, but rarely under the artificial time constraint created by being kept in the dark as to the intended method of execution until after a death warrant setting an imminent execution date has been issued. Most recently, Oklahoma prisoners challenged the state’s lethal-injection protocol, but a federal district judge allowed the state to move forward with setting execution dates. Attorneys for the Oklahoma prisoners say they will appeal that decision.