Mississippi is set to become the first state where prison officials can choose how a person sentenced to death is executed.
Starting July 1, the Department of Corrections Commissioner Burl Cain and two deputy commissioners will decide the method of execution for incarcerated people: lethal injection, gas chamber, electrocution or firing squad.
“This statute throws it all into the hands of the Mississippi Department of Corrections without guidance and restrictions,” said Ngozi Ndulue, deputy director of the Death Penalty Information Center.
Twenty-seven states have the death penalty. Ndulue said most use lethal injection as the primary execution method and some have backup execution methods if lethal injection isn’t available.
Cain has witnessed several executions as the former warden of Louisiana’s Angola State Prison and Mississippi’s most recent execution as the corrections commissioner.
“The courts are the ones who decide the penalties for crime, not MDOC,” he said in a Friday statement. “We just hold the keys. When the court orders me, I am required by Mississippi statute to carry out the sentence.”
The law does not specify how MDOC officials are supposed to decide what execution method to select.
Ndulue said this can lead to decisions being made in an “internal, non-transparent way.” There are considerations, including whether lethal injection drugs are available and there are protocols and training of how to use other forms of execution, she said.
Mississippi is also a state that has a lot of secrecy about its execution protocols and how it obtains lethal injection drugs, she said.
“This is something the public doesn’t have a lot of insight into,” Ndulue said. “What is actually going on?”
MDOC officials will have this new responsibility through House Bill 1479 proposed by Rep. Nick Bain, R-Corinth. He chairs the Judiciary B Committee and is vice chair of the Judiciary En Banc Committee.
Bain said the governor and attorney general’s offices asked for the legislation to be filed because the state was having difficulty obtaining lethal injection drugs to carry out death sentences.
The previous version of the law, passed in 2017, said if lethal injection was not possible due to unavailable drugs or a legal challenge, an incarcerated person could be put to death by gas chamber. Electrocution was the next option if lethal gas was unavailable and the last alternate was execution by firing squad.
Lethal injection remains Mississippi’s preferred form of execution, according to legislation.
“We put language in the final draft saying it is our policy, as the Legislature, that lethal injection be chosen,” Bain said. “That gives (the commissioner) the idea that we want lethal injection and that should be the way to do it.”
Within seven days of receiving a warrant of execution from the Mississippi Supreme Court, the MDOC commissioner must inform the prisoner of the method in writing.
Ndulue said the law could lead to last minute legal action about executions. For Mississippi’s most recent execution, there was less than 30 days between the execution being issued and being carried out.
States have argued they need backup methods of execution because of challenges of obtaining lethal injection drugs, she said.
Ndulue said some drug manufacturers have objected to their drugs being used for executions. Some states have resorted to getting lethal injection drugs from overseas or going to compounding pharmacies to have the drugs made, she said.
Lethal injection has also been called into question through legal action.
An ongoing federal civil lawsuit filed in 2015 on behalf of three people serving on death row in Mississippi argues the state’s lethal injection protocol violates their right to due process and violates the Eighth Amendment, which prohibits cruel and unusual punishment.
Mississippi and other states have used a mix of three drugs including an anesthetic during executions.
The lawsuit claims compounded or mixed drugs could be “counterfeit, expired, contaminated and/or sub-potent” and could result in prisoners being conscious throughout their execution and subjected to “a tortuous death by suffocation and cardiac arrest.”
The bill that goes into effect next month specifies the lethal injection drugs used in execution must be “a substance or substance in a lethal quantity” rather than one containing an anesthetic, paralytic agent and potassium chloride, as the 2017 version of the law laid out.
From the early 1800s to 1940, all Mississippi executions were by hanging, according to MDOC. Execution by electrocution took place from 1940 to 1952, followed by the use of a portable electric chair moved from county to county. Lethal gas executions took place between 1954 and 1984.
Mississippi carried out 35 gas chamber executions between 1955 and 1989, according to MDOC.
Between 2002 and 2022, 18 people were executed by lethal injection in the state, according to MDOC.
All executions are performed at the Mississippi State Penitentiary at Parchman, which is where death row is.
For women, executions happen in a facility designated by the MDOC commissioner, according to state law. The one woman serving on death row is at the Central Mississippi Correctional Facility in Pearl.
Mississippi’s most recent execution was that of David Neal Cox on Nov. 17, 2021.
He was convicted on multiple charges, including the murder of his estranged wife, Kim Cox, and the sexual assault of his then-underage stepdaughter in front of his dying wife in 2010 in Union County.