The scheduled execution of death row inmate Thomas Edwin Loden Jr. will be allowed to proceed, a federal judge ruled Wednesday.
U.S. District Court Judge Henry Wingate denied a stay for Loden as part of a lawsuit challenging Missisisppi’s lethal injection protocol. Loden’s execution is set for Dec. 14 at the Mississippi State Penitentiary at Parchman.
“Loden contends that since he is a plaintiff in this underlying lawsuit challenging Mississippi’s lethal injection mode of execution, the same procedure Mississippi intends to use to put him to death, he should not be executed before a decision on the constitutionality is rendered,” Wingate wrote.
“Loden, however, cannot convincingly argue that his involvement in this 1983 lawsuit has somehow expanded his rights and provided him a shield against execution,” he wrote, adding that granting a stay would likely delay Loden’s execution for years.
Wingate ruled in a civil lawsuit brought by death row inmates Richard Jordan and Ricky Chase against Mississippi Department of Corrections officials that Loden and others have joined.
In his order, Wingate scheduled a hearing for Jan. 19, 2023, about whether to issue an indefinite stay of execution for the plaintiffs and other intervenors in the case.
Stacy Ferraro, one of Loden’s attorneys, argued against the state’s October request to set Loden’s execution by citing the pending lawsuit and saying Loden had not yet exhausted his appeals, according to court documents.
Loden, 58, has been a death row inmate for over 20 years. In 2000, the military recruiter kidnapped, raped and killed 16-year-old Leesa Marie Gray in Dorsey in Itawamba County.
The lawsuit before Wingate argues that the state’s three-drug cocktail for lethal injection is cruel and unusual punishment because the compounded or mixed drugs the state uses could be “counterfeit, expired, contaminated and/or sub-potent” and result in people being conscious during the execution, according to court documents.
Jim Craig of the MacArthur Center for Justice, who represents the plaintiffs Jordan and Chase, filed a temporary restraining order in October asking Wingate to withdraw the motion to set an execution date for Loden and not to execute him until the lawsuit is resolved.
The Attorney General’s Office has argued that a case challenging the execution process doesn’t prevent Loden’s execution from proceeding because it is not challenging his death sentence, just the method of execution, according to court documents.
In 2015, Wingate issued a preliminary injunction blocking the state from executing anyone using the three-drug combination, saying in a written order that the inmates were likely to successfully argue that “Mississippi’s failure to use a drug which qualifies as an ‘ultra short-acting barbiturate or other similar drug’ as required” by state law violates both that law and the U.S. Constitution’s due process guarantees. But the 5th U.S. Circuit Court of Appeals overruled that decision less than a year later.
The court wrote that the federal court can’t force state officials to follow state law, and the plaintiffs weren’t able to show their due process rights were violated. This sent the case back to the district court.
The Mississippi Department of Corrections plans to put Loden to death by lethal injection.
Under a law that went into effect in July, prison officials can choose from four execution methods: lethal injection, electrocution, lethal gas and firing squad. Before Wingate’s ruling, department spokesman Leo Honeycutt confirmed lethal injection was the method Corrections Commissioner Burl Cain and two deputy commissioners selected.
In his order, Wingate mentioned the state could select another execution method, but that would “surely be attacked in a new lawsuit.”
That law updated a 2017 version that said if lethal injection was not possible due to a legal challenge or unavailability of drugs, an incarcerated person could be put to death by gas chamber. If that option wasn’t available, electrocution was the next available method followed by firing squad.
Lethal injection remains the state’s preferred form of execution, according to the legislation.