JACKSON (AP)
July 22, 2008 10:11 am
—
Mississippi’s method of lethal injection is “substantially similar” to a protocol affirmed by the U.S. Supreme Court and does not violate constitutional prohibitions against cruel and unusual punishment, a split panel of federal judges ruled Monday.
The panel of the 5th U.S. Circuit Court of Appeals in New Orleans refused to delay the execution of inmate Dale Leo Bishop. Bishop is scheduled to be executed at 6 p.m. Wednesday but has other appeals pending.
Bishop was among several Mississippi death row prisoners who filed a federal lawsuit in 2007, claiming the state’s three-drug procedure is unconstitutional because it could cause pain. A district court judge dismissed the lawsuit last week, and Bishop’s attorneys appealed to the 5th Circuit.
The three-judge panel on Monday found that “Mississippi’s lethal injection protocol appears to be substantially similar to Kentucky’s protocol.”
The language is significant because the U.S. Supreme Court ruled in April that Kentucky’s method is acceptable, as well as “substantially similar” protocols. That ruling came after two death row inmates in Kentucky challenged the procedure in a lawsuit that blocked executions around the country for months.
After the justices ruled that Kentucky’s method was acceptable, Mississippi and several other states moved swiftly to resume executions. Bishop would become the second person executed in Mississippi since then.
The Mississippi inmates tried to block the state from executing anyone, claiming the method is different from Kentucky’s even though the same three drugs are used. They say Mississippi doesn’t have safeguards to ensure that lethal drugs won’t be administered until after the prisoner is completely sedated.
The insertion of the intravenous needle could also be painful because the execution staff in Mississippi is not properly trained, the inmates claimed. State officials say the allegations are baseless and that the execution staff “is a highly trained team of paramedics.”
In a dissenting opinion on Monday, 5th Circuit Judge Carolyn D. King said an expert witness for Bishop raised valid concerns about the procedure.
“Bishop’s expert identifies several aspects of the protocol that, in his opinion, undermine Mississippi’s ability to reliably carry out a humane execution by lethal injection. Of course, there is also evidence to the contrary, but this issue was never fully developed in district court (as it could have been if the state timely responded to this lawsuit),” King wrote.
King was referring to claims made by Bishop’s attorneys that the Mississippi Department of Corrections withheld information about the state’s method of lethal injection.
The lawsuit filed by the death row inmates was dismissed last week because of the statute of limitations. Bishop’s attorneys say that wouldn’t have happened if the state had not stalled for months before providing details about the procedure.
Bishop currently has an appeal pending before the U.S. Supreme Court that seeks a definitive ruling on whether the statute of limitations applies when one party in a lawsuit is accused of withholding information. Another appeal before the 5th Circuit claims Bishop’s last post-conviction attorney sabotaged his case by suppressing evidence. His attorneys also claim he is mentally ill and was unfit to make a sound decision when he asked for the death penalty during his sentencing.
Bishop, now 34, was sentenced to die in 2000 for his role in the claw hammer beating death of Marcus James Gentry. Bishop admitted participating in the fatal attack, but Bishop’s attorneys say an accomplice, Jessie Johnson, killed Gentry. Johnson was tried separately and is serving a life sentence.
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