Miss. has no fallback on execution method; not needed, says expert

Published 9:17 pm Monday, December 31, 2007

Mississippi doesn’t have a fallback plan if the U.S. Supreme Court in 2008 bans lethal injection as a method of executing condemned prisoners.

Hanging? Dropped in 1940.

Electric chair? Plug pulled in 1954.

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Gas chamber? Mothballed in 1998.

Executions in many states have been put on hold pending a Supreme Court decision — expected no sooner than June — on whether the standard lethal injection procedure can cause pain severe enough to violate the constitutional ban on cruel and unusual punishment. In Mississippi, Earl Wesley Berry’s execution was one of those halted by the nation’s high court.

The Supreme Court has arguments scheduled for early January.

Advocates on both sides of the debate say it’s likely the high court will offer some pathway for states to resume executions.

That belief is shared by Donald Cabana, a former Mississippi corrections commissioner and a criminal justice professor.

“I don’t think it means that executions would go by the wayside. I think what it means is that the court is going to look at the method in which it’s administered and if they don’t find any constitutional crisis there in terms of violating the cruel and unusual process, I think it will pass muster and still be OK.

“I’m not nearly as convinced as some people seem to be that the court is going to use this instance to outlaw capital punishment. I don’t think that’s even in the ball park,” said Cabana, now warden at the Harrison County Detention Center.

Tara Booth, a spokeswoman for the Department of Corrections, said the state would follow whatever remedy the Supreme Court orders.

This isn’t the first hiatus for executions. The Supreme Court declared capital punishment unconstitutional in 1972, but four years later cleared the way for executions to resume.

“If the U.S. Supreme Court were to do an across-the-board ban on lethal injections, what they’re going to do is state what their objections to the methods are.

“I don’t think that necessarily means that lethal injection couldn’t be used. You have to look at what the court finds objectionable,” Cabana said.

After that, Cabana said the states could correct whatever flaws the court found and then go back before the court with a request to reinstate executions.

“That’s what happened when the Supreme Court banned the death penalty in 1972,” he said.

There have been 1,099 executions nationwide since 1976, with a peak of 98 in 1999. The numbers have ebbed in recent years — there have been 42 this year — while more than 3,300 inmates populate death row units across the country.

Mississippi’s last execution was Oct. 18, 2006, when Bobby Glen Wilcher was put to death.

Attorney General Jim Hood said he doesn’t foresee any Mississippi death penalty case reaching the point of setting an execution date before the Supreme Court reaches a decision on lethal injection.

“We don’t see a scenario in which we will be faced with that decision,” Hood said.

Hood said several death row inmates have appeals before the 5th U.S. Circuit Court of Appeals, but none is likely to be decided before a Supreme Court ruling.

At the end of the year, Mississippi had 65 inmates on death row — three women, 62 men. Thirty-two were white, 32 black and one was Asian.

The youngest on death row was Terry Pitchford, 21, convicted in Grenada County; the oldest, Gerald James Holland, 70, convicted in Harrison County. The longest serving inmate on death row, Richard Jordan, 61, was convicted in Jackson County 30 years ago.