JACKSON, Miss. (AP) – A Mississippi man sentenced to death for the murder of a community college student won consent from the state’s highest court Thursday to challenge a lethal injection drug that’s been blamed for botched executions and other problems around the country.
The Mississippi Supreme Court, in a 5-4 decision , said Charles Ray Crawford can use a federal civil rights law to pursue a lawsuit in state court over the use of the sedative midazolam in executions. The challenge by the Mississippi death row inmate is just one of several in several states involving execution drugs.
During an Alabama execution last week, convicted killer Ronald Bert Smith Jr. coughed, and his upper body heaved repeatedly for 13 minutes as he was being sedated with midazolam. In Virginia, one inmate’s lawyers recently argued that even a firing squad would be more humane than the drugs selected there.
Crawford, now 50, was sentenced to death for the 1993 murder and rape of 20-year-old Kristy Ray. Crawford handcuffed the community college student and stuffed a sock in her mouth before sexually assaulting her and stabbing her to death on a country road in northeast Mississippi’s Tippah County, court records show. He claimed he didn’t remember the attack, but led authorities to the body buried in leaves.
Mississippi hasn’t yet used midazolam in any execution because the state hasn’t put anyone to death since 2012. Legal observers say no executions are likely until such challenges are resolved.
Lawyers for Crawford have argued that midazolam won’t render an inmate unconscious, meaning he could feel pain as executioners administer a second drug to paralyze him and stop breathing and a third drug to stop his heart.
“A condemned man or woman is guaranteed a day in court to prevent the use of execution protocols that could result in excruciating torture, including conscious suffocation,” lawyer Jim Craig wrote The Associated Press in an email.
Mississippi Attorney General Jim Hood didn’t immediately respond to a request for comment. His office had previously argued the case should be dismissed as a side-door attack on the death penalty itself, and not just an argument over execution methods.
Mississippi Supreme Court’s chief justice sided with Hood in dissenting from the majority Thursday.
“While his complaint does not attack directly the general validity of his death sentence, it has the same practical effect under the facts presented,” Chief Justice William Waller Jr. wrote in one of two dissents.
Waller also wrote that he feared the decision “adds yet another avenue or layer of litigation to obfuscate and confuse the orderly administration of justice.”
The U.S. Supreme Court ruled 5-4 in a 2015 case from Oklahoma that condemned inmates had not proven that midazolam violated the Eighth Amendment prohibition on cruel and unusual punishment.
Oklahoma inmate Clayton Lockett in 2014 writhed on a gurney, moaned and clenched his teeth for several minutes before prison officials tried to halt the process. Lockett died after 43 minutes. A state investigation revealed that a failed intravenous line caused drugs to be injected into his tissue, not directly into his bloodstream. Ohio inmate Dennis McGuire repeatedly gasped and snorted for more than 26 minutes during his January 2014 execution.
Craig and other lawyers for the MacArthur Justice Center have filed multiple lawsuits in recent years over execution drugs in Mississippi. The state has generally sought to have the suits dismissed for procedural reasons, and there has yet to be a full hearing on the legality of using of midazolam under Mississippi law.
The execution procedure in Mississippi requires an “ultra-short-acting barbiturate” followed by a paralyzing agent and a drug that stops an inmate’s heart. Craig argues that midazolam doesn’t qualify as a short-acting barbiturate.
The makers of a drug Mississippi and other states previously used – pentobarbital – cut off sale for use in executions under pressure from death penalty opponents. Some states have hired compounding pharmacies to make pentobarbital from raw ingredients, a route Mississippi considered before announcing a switch to midazolam.
The state Supreme Court has refrained from setting execution dates during challenges to execution methods.
University of Mississippi law professor Tucker Carrington said no executions are likely in the state until Crawford’s case is resolved. “Until some kind of hearing, somewhere, in some court, I don’t see executions going forward using this drug,” Carrington said.