Richard Gerald Jordan v. State of Mississippi

This matter comes before the En Banc Court on Richard Gerald Jordan’s Successive

Petition for Post-Conviction Relief. Jordan claims the State’s intent to use midazolam in its

lethal injection protocol violates Mississippi Code Section 99-19-51. He also claims

executing an inmate more than forty years after he was first sentenced to death would violate

the United States and Mississippi Constitutions.

Claim I

When Jordan filed his petition, Mississippi Code Section 99-19-51(1) provided that

“[t]he manner of inflicting the punishment of death shall be by continuous intravenous

administration of a lethal quantity of an ultra short-acting barbiturate or other similar drug

in combination with a chemical paralytic agent . . . .” Jordan claimed the State could not use

midazolam because it was not an “ultra short-acting barbiturate or other similar drug.” But

on April 5, 2017, Mississippi Code Section 99-19-51(1) was amended to state “[t]he manner

of inflicting the punishment of death shall be by the sequential intravenous administration

of a lethal quantity of the following combination of substances: (a) an appropriate anesthetic

or sedative; (b) a chemical paralytic agent; and (c) potassium chloride, or other similarly

effective substance. . . .”

Ordinarily, this Court will not dispose of a case on grounds which the parties have not

been afforded an opportunity to brief. Here we do so because Jordan claims that the use of

midazolam violates a provision of Section 99-19-51 that now has been amended. Because

we find Jordan’s claim to be moot, we decline to address whether midazolam is or is not a

permissible drug under the current statute.

Claim II

Jordan also argues that both the United States and Mississippi Constitutions prohibit

the State from executing an inmate more than forty years after he was originally sentenced

to death. Jordan has been on death row for over forty years—longer than any other

Mississippi inmate. He argues that after this length of time, execution will amount to cruel

and unusual punishment in violation of the Eighth Amendment to the United States

Constitution, and cruel or unusual punishment under Article 3, Section 28 of the Mississippi

Constitution.

Courts regularly have rejected similar claims.1 The United States Supreme Court

recently rejected a petition for certiorari review of “whether execution of a condemned

individual more than three-and-one-half decades after the imposition of a death sentence

1 See Reed v. Quarterman, 504 F.3d 465, 488 (5th Cir. 2007) (quoting White v. Johnson, 79 F.3d 432, 436–40 (5th Cir. 1996)) (“‘[n]o other circuit has found that inordinate delay in carrying out an execution violates the condemned prisoner’s eighth amendment rights.’”). 2

violates the Eighth Amendment’s prohibition against cruel and unusual punishment.”2 We

are provided no compelling argument to depart from these holdings, so we must conclude

that Jordan’s Eighth Amendment claim lacks merit.

Jordan also lodges his claim under Article 3, Section 28 of the Mississippi

Constitution, which prohibits cruel or unusual. Jordan argues that the forty-year delay has

resulted from his sentence being reversed three times due to the State’s inappropriate conduct

at trial, and that even if not cruel, the extensive delay renders his punishment unusual because

no Mississippi prisoner has waited so long for the imposition of a death sentence.

While we agree that the circumstances surrounding Jordan’s pre-execution

incarceration are unusual, the Mississippi Constitution prohibits unusual punishment, and the

punishment Jordan asks this Court to vacate—his death sentence—is not itself unusual.

Regardless of the delay, Jordan will be subjected to the same punishment as every other

inmate who has been executed. So we find no merit to Jordan’s claim that his punishment

violates Article 3, Section 28 of the Mississippi Constitution