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.