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With just 15 days until Thomas Loden is set to be executed by the state of Mississippi, by injecting him with three separate substances, he and four other people on death row are challenging that method of execution in federal court and seeking a delay to his execution until that challenge is complete.
“This civil action is not about whether any of the five plaintiffs, including Mr. Loden, should be executed, but about what the methods of execution should be,” Jim Craig, director of the Louisiana office of the MacArthur Justice Center and former Mississippi-based attorney, said during an informational hearing before the U.S. District Court for the Southern District of Mississippi on Monday.
The hearing came after a notable execution attempt earlier this month in Alabama. An attorney for the condemned in that case likened what took place to torture, and the governor of that state put all executions on hold.
Alabama had used a very similar procedure to that Mississippi plans to use against Loden, with three separate injections, also known as the three-drug method. These injections must be precisely timed out in order to ensure that the person being executed is unconscious and does not feel the pain that comes from the latter two injections.
“It’s the second and the third drugs that cause tremendous pain,” Craig said.
The three-drug protocol also presents problems with finding a vein, as three separate injection sites must be located. This was the key issue in the Alabama case, an event which played heavily into the discussions Monday.
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Craig said that the recent pause on executions in Alabama, along with another recent pause in Tennessee, leaves Mississippi and Oklahoma as the only two states actively carrying out executions whose primary method is the three-drug protocol. Oklahoma had previously paused their three-drug protocol as well but reinstated it after making changes to procedures. Craig said even Oklahoma’s previous protocol was more extensive than Mississippi’s current one. Most other states, and the federal government, use one injection when executing people.
Ten years ago, Craig said, of the 36 states that executed people, 30 used a three-drug protocol. Craig argued that this shift, from a three-drug protocol to a one-drug protocol, shows an “evolving standard of decency” for punishments, a phrase coined in the 1958 Supreme Court decision Trop v. Dulles.
“It has completely flipped from 2012 to today,” Craig said. “Even the protocol Oklahoma decided is not good enough is advanced compared to what Mississippi is doing.”
Gerald Kucia, special assistant to Attorney General Lynn Fitch, made the argument for the state that Loden’s execution should not be delayed. Kucia argued that the Trop case does not apply to methods of execution.
“The fact that, as Mr. Craig claims, our society has moved away from a particular method of execution does not make that method of execution invalid or unconstitutional,” Kucia said.
Kucia also pointed out that the U.S. Supreme Court has never ruled a method of execution unconstitutional.
“The Supreme Court has never held a method of execution unconstitutional. There is no reason for this court to do so today,” Kucia said.
There was also a dispute over whether expired drugs are being stored in the drug room at the Mississippi State Penitentiary at Parchman, which houses the state’s male death row inmates. According to deposition given last week by Parchman’s Superintendent Marc McClure, there were expired drugs in the drug room, and he was unaware of any official Mississippi Department of Corrections policy that would prevent expired drugs from being used.
Craig said his legal team have been trying to depose MDOC commissioner Burl Cain since April but have been unable to do so. They intend to speak with him Wednesday. If there is a policy against using expired drugs, Craig thinks the superintendent of Parchman should know.
“It’s a bit distressing that he doesn’t,” Craig said. “If there’s a policy we don’t know about, perhaps the commissioner will tell us.”
Kucia said the state will prepare an affidavit to present Wingate and Craig which shows that expired drugs will not be used.
“I can assure the court that these drugs will not be used in any execution, and in fact they have been destroyed,” Kucia said.
Thomas Loden execution
The hearing Monday, to decide whether Loden’s execution date of Dec. 14 will be pushed back, is the latest chapter in a legal battle that has been going on since 2015. Judge Henry Wingate asked Craig for a timeline of when the case might come to a conclusion, allowing executions to move forward if he were to grant a stay for Loden, a former Marine Corps recruiter who plead guilty in 2001 to raping and murdering 16-year-old Leesa Gray.
Wingate was clear, though, that the question should not indicate that he is leaning towards granting a temporary stay. Craig said it could be wrapped up by “April, May or June.”
“What I hear is, there’s pending litigation that could take this six months down the road,” Wingate said. “I was just asking the question about that. It has no bearing on the court’s ruling.”
Craig said his team’s case is not an attempt to delay Loden’s execution at the last minute, as it has been ongoing for years, but they do believe executions should be delayed until a decision is reached.
“We filed our lawsuit 7 years ago. This is not a last-minute case,” Craig said.
For the family of Gray, many of whom drove more than three hours to be at the more than six-hour-long hearing, the debate over the most humane way to execute Loden has taken far too long.
“You know, I forgave Thomas Loden a long time ago,” Gray’s mother, Wanda Farris of Fulton, said. “I just want justice to be served. They’re in there worried about a little pain, a little jerk. That’s nothing, minor, that’s nothing compared to what he put her through.”
Sondra Pearce, who taught Gray in kindergarten and has been a longtime friend of the family, also made the drive to Jackson.
“Sometimes when these things happen, you always say good things about the victim, but these things were true about Leesa,” Pearce said.
Farris said she intends to be a witness at Loden’s execution, if and when it takes place.
“I didn’t really want to, but the more I thought about it, I thought ‘No, I’m doing this for Leesa,'” Farris said.
There was also discussion of why Loden’s execution date had been set in the first place, when both legal teams knew there were more witnesses being sought for depositions in the civil case over methods. Craig said it was a surprise to those representing the men on death row. He believes the execution order recently became a priority for Fitch, who he says received a letter from a trial judge in the jurisdiction where Loden was originally tried.
Wingate said he hopes to announce a decision soon. That said, it is likely he will wait until the state provides him the affidavit on the expired drugs’ destruction. The state’s team was already working on that affidavit as proceedings were ongoing Monday.
“This court intends to write a short, or lengthy, opinion, but this court intends to move as quickly as possible,” Wingate said.
Mississippi also has alternative methods of execution, which include the electric chair and firing squads, a point which Wingate noted. Those methods were added in 2017, and a law passed earlier this year gives MDOC widespread discretion in which method to use.
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