Death-Row Procedures Need Not Be in Writing

     (CN) – Although Mississippi executions rely on “custom and practice” rather than written procedures, there is no evidence a lack of specific instructions harms prisoners, the 5th Circuit ruled.
     Roger Thorson, an inmate on death row in Mississippi, challenged the constitutionality of Mississippi’s lethal injection procedures, claiming that the lack of specific procedures creates the possibility that an improperly anesthetized prisoner may experience the pain of lethal drugs while still conscious.
     A federal judge granted the state summary judgment, and the 5th Circuit affirmed Wednesday.
     “Even if some of Mississippi’s lethal injection protocol relies on custom and practice, rather than written documents, a lack of evidence linking the unwritten protocol to the requisite risk of harm prevented it from being unconstitutional,” Judge Edith Jones wrote for a three-judge panel.
     Baze v. Rees, a 2008 Supreme Court decision, holds that “the Eighth Amendment does not prohibit ‘the possibility of pain’ but rather ‘wanton exposure [of the condemned] to ‘objectively intolerable risk,”” according to the judgment.
     Mississippi takes many precautionary measures not required by law to ensure executions proceed without incident, Jones said, noting that it hires paramedics to perform the injections and gives prisoners five to eight times the required anesthesia dosage.
     “Thorson’s ultimate argument is that Mississippi’s failure to dictate every execution detail in writing could cause a constitutional problem,” Jones wrote. “This misses the point. He has adduced no evidence that requiring the state to expound further on what is already written, along with what is already being done, will ‘in fact significantly reduce a substantial risk of severe pain.'”
     The 5th Circuit also upheld Mississippi’s lethal injection procedures in 2008, on the ground that the plaintiff prisoners filed their complaint after the three-year statute of limitations had passed.

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