DOVER, Del. — Delaware is moving closer to executing its first prisoner since 2005 as time runs out for the legal appeals of a man convicted of killing a woman with an ax.
Robert Jackson III is scheduled to die by lethal injection early Friday, between 12:01 a.m. and 3 a.m. On Wednesday, the Delaware Supreme Court and a federal judge in Wilmington both rejected requests by Jackson’s lawyers to halt his execution. Now it’s up to the Court of Appeals for the Third Circuit in Philadelphia and the U.S. Supreme Court to decide whether to allow the execution to proceed.
Jackson was convicted of killing Hockessin resident Elizabeth Girardi in 1992 during a botched burglary. If his execution goes forward, he would be the first inmate to be executed in Delaware using the drug pentobarbital.
Like other states, Delaware said it would use pentobarbital after a nationwide shortage of another key execution drug, sodium thiopental, the first of three drugs Delaware was using to carry out executions. Supplies of sodium thiopental dried up after the drug’s only U.S. manufacturer ceased production. As a result, the Delaware Department of Correction changed its procedures in May to allow for the use of pentobarbital. Both drugs are used to anesthetize a prisoner before two other lethal chemicals are administered.
Jackson’s lawyers tried to argue that his execution should be stayed so he could challenge the addition of pentobarbital to the state’s execution procedure. Using pentobarbital creates an unconstitutional risk of pain and suffering, one of Jackson’s lawyers argued, because it might not properly anesthetize a person before the two remaining drugs are administered.
That argument was rejected by U.S. District Court Judge Sue Robinson late Wednesday, who sided with lawyers for the state of Delaware. Robinson concluded that the state’s use of pentobarbital is not likely to cause pain and suffering during an execution because officials check that the individual is unconscious before continuing with the remaining drugs.
“There has been no affirmative evidence presented that the administration of pentobarbital as the first drug in Delaware’s three-drug protocol creates a demonstrated risk of severe pain,” Robinson wrote.
She refused to halt Jackson’s execution and rejected his request to reopen a legal challenge to Delaware’s execution procedures.
Delaware has executed a total of 14 inmates since 1992 when the state began executing prisoners again after a decades-long hiatus. Since 1994, executions have been mandated by law to be carried out during the early morning hours. Holding executions during those hours prevents disruptions to routine prison operations at the James T. Vaughn Correctional Center north of Smyrna, the site of the state’s death row.
A total of 20 inmates, all of them men, are currently on Delaware’s death rowDel. prepares for its first execution since 2005