Alternate execution method bill ignores larger death penalty debate

Published 2:00 am Sunday, February 12, 2017

There is no gentle way to say it, so here goes. House Bill 638 as passed by that chamber of the Mississippi Legislature isn’t a bill that considers whether the state should impose the death penalty. No, that’s not the matter at hand in this legislation.

House Bill 638 is a bill that would govern the method by which the state would impose the death penalty should the current lethal injection method at some point in the future be ruled unconstitutional.

Nationally, lethal injection as a method of execution is mired in litigation over the specific drugs used in the lethal injection “cocktail” and whether the practice actually is the “more humane” method that legislators thought they were adopting almost 20 years ago.

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Attorney Jim Craig represents two the Mississippi prisoners who lost their 2016 case at the 5th U.S. Circuit Court of Appeals. Craig has been a longtime legal player in litigation opposing the death penalty in Mississippi – whatever the method.

Craig, co-director of the Roderick & Solange Justice Center at New Orleans, argued in 2016: “Neither compounded pentobarbital or midazolam are in the class of drugs specified by state law for use in executions. There is good reason for that. In other states, both compounded pentobarbital and midazolam have been used in botched executions, which tortured prisoners to death. Those states have changed their protocols to create safeguards against chemical torture.”

Last year, Hood responded to the federal appeals court decision as follows: “For years and years, anti-death penalty groups have clogged the courts with bogus legal claims that only delay justice for murder victims and their families. If these anti-death penalty groups want to change the law, they should be lobbying the Legislature to change the law to stop use of the death penalty, not filing frivolous claims attempting to dupe judges into stopping executions at the last minute.”

Hood’s response defines where the majority of the Mississippi House of Representatives apparently is on the subject – and that’s a place where the death penalty is still the law and implementation methods are subject to expansion.

The new legislation provides that if lethal injection cannot be the method, then the state would proceed to implement the death penalty by nitrogen hypoxia. “Hypoxia” occurs when someone has a lack of an adequate supply of oxygen.

The air we breathe is normally about 78 percent nitrogen and 21 percent oxygen (the rest is argon or other gases). Giving a condemned prisoner 100 percent nitrogen would induce hypoxia, unconsciousness and death in what proponents in the scientific and legal communities suggest would be far more human than lethal injection.

If nitrogen hypoxia is ruled unconstitutional, then the state would proceed with implementing the death penalty by firing squad. If the firing squad method is ruled unconstitutional, then the state would proceed under the new law to implement the death penalty by electrocution.

In other words, HB 638 says that Mississippi is prepared to carry out the imposition of the death penalty by any accepted form of execution used in the state’s history with the exception of the old cyanide-fueled gas chamber. Remember, Mississippi has engaged in almost all of the accepted forms of execution during the state’s history including hanging, electrocution, the gas chamber, and lethal injection.

The notion that imposition of the death penalty can be somehow sanitized and guaranteed to be painless or free from fear and anxiety is one that flies in the face of what the death penalty really is – which is the most extreme form of punishment. Those who argue otherwise delude themselves.

I have covered four executions incorporating death sentences carried out both in Mississippi’s old gas chamber and in the state’s present lethal injection chamber. By any method, watching a condemned man strapped down and killed by the State of Mississippi is a sobering experience – and not one whit like the experience portrayed in the movies.

House Bill 638 is the reaction to litigation filed challenging the “cruel and unusual punishment” aspects of lethal injection. Most of those legal challenges were filed as a delaying tactic to thwart the imposition of the death penalty.

For good or ill, state legislatures are pushing back hard against those challenges with this type of legislation. The propriety of maintaining the death penalty at all is by no means part of the current discussion.

Sid Salter is a syndicated columnist. Contact him at