U.S. District Judge Henry Wingate said he will decide Monday whether to delay Richard Jordan’s execution. The 79- year-old death row inmate’s defense argues that the set method of execution might constitute “cruel and unusual punishment.”

Jordan is scheduled to be executed on June 25 by injection of a sedative followed by two lethal drugs.

The sedative administered doesn’t prevent the inmate from feeling pain, Jordan’s defense argues. Prisoners can feel suffocation and cardiac arrest.

“Mr. Jordan and all the other people on death row were sentenced to death to have their lives extinguished,” said Jim Craig, Jordan’s attorney at a hearing Saturday  for a preliminary injunction to halt the execution. “They were not sentenced to be tortured before they die.”

Jordan and fellow death row inmate Ricky Chase are lead plaintiffs in a federal lawsuit challenging the constitutionality of the drugs used for lethal injection. 

Jordan, at 79 the state’s oldest and longest serving death row inmate, was first convicted in 1976 for kidnapping and killing Edwina Marter in Harrison County. He had four trials until a death sentence stuck in 1998. 

Mississippi Department of Corrections protocol requires execution staff to ensure that inmates are completely unconscious before proceeding with the lethal drugs. The “proposed consciousness check” is a mandated wait time of three minutes between administering the sedative and the lethal drugs.

But the latest two executions in Mississippi – David Neal Cox on Nov. 17, 2021, and Thomas Loden Jr.  on Dec. 14, 2022 – did not follow this protocol: execution staff only waited one to two minutes before injecting the other drugs. Citing a deposition from Corrections Commissioner Burl Cain, the Attorney General’s Office ensured Judge Wingate that protocol would be followed with Jordan.

Execution staff would also rub Jordan’s sternum and monitor his reaction to pressure applied. Wingate asked the Attorney General’s Office how many seconds the test would last, but they could not provide a set answer.

If the sedative fails, no protocol is in place. At that point, the decision to proceed with the execution lies in Cain’s hands.

Wingate floated an idea that Cain would no longer make this call if the sedative fails. In 2022, a state law gave the commissioner sole discretion to decide the method of execution of incarcerated people.

He set a deadline of Monday noon for an answer from Cain.

The U.S. Supreme Court distributed Jordan’s petition for a writ of certiorari at a May 29 conference and is expected to discuss it again at a June 18 conference – a week before the execution.