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The New York Times
Justices Stay
Execution, a Signal to Lower Courts
By LINDA GREENHOUSE,
nytimes.com from the Web, October 31, 2007
WASHINGTON, Oct. 30 — Moments
before a Mississippi prisoner was scheduled to die by lethal injection, the
Supreme Court granted him a stay of execution on Tuesday evening and thus gave a
nearly indisputable indication that a majority intends to block all executions
until the court decides a lethal injection case from Kentucky next spring.
There were two dissenters, Justices Antonin Scalia and Samuel A. Alito Jr., but
neither they nor the majority gave reasons for their positions. Because
only five votes are required for a stay of execution, it is not clear whether
all the remaining seven justices supported it.
The stay will remain in effect until the full court reviews an appeal filed
Monday by lawyers for the inmate, Earl W. Berry, who is on death row for killing
a woman 20 years ago.
While there is no schedule for that review, it will almost surely not take place
until the court decides the Kentucky case, Baze v. Rees, which will be
argued in January. The issue in that case is not the constitutionality of
lethal injection as such, but rather a more procedural question: how
judges should evaluate claims that the particular combination of drugs used to
bring about death causes suffering that amounts to cruel and unusual punishment,
in violation of the Eighth Amendment.
Even without a written opinion, the Supreme Court’s action on Tuesday night
clarified a situation that had become increasingly confusing as state courts and
the lower federal courts, without further guidance from the justices, wrestled
with claims from a growing number of death-row inmates that their imminent
executions should be delayed.
State and lower federal courts are likely to interpret the Supreme Court’s
action as a signal that they should postpone executions in their jurisdictions.
As a result, the justices will probably not have to consider any more
last-minute applications from inmates while the de facto moratorium is in
effect.
Of these inmates, Mr. Berry had perhaps the weakest case. He had run
through many appeals in the 19 years since he was sentenced to death, but had
not challenged the method of execution until recent days. His federal
court lawsuit on which the justices acted was not filed until Oct. 18. The
Federal District Court in Jackson, Miss., dismissed it as untimely on Oct. 24 in
a ruling that the United States Court of Appeals for the Fifth Circuit affirmed
last Friday.
The appeals court said that, under its own precedent, a late-filed challenge to
a method of execution warranted automatic dismissal. The pending Supreme
Court case was irrelevant to its determination, the appeals court said, adding
that if the justices had a different view of the matter, they should say so.
In the application for a stay of execution, filed Monday afternoon, Mr. Berry’s
lawyers acknowledged that the Supreme Court itself has been critical of
last-minute requests from death-row inmates, “especially if the petitioner has
been trying to manipulate the legal process.” But the lawyers urged the
court to look beyond that issue and to consider “a balancing of the equities and
hardships of the respective parties.”
In this instance, the lawyers said, Mississippi “will suffer no prejudice other
than a delay if Mr. Berry’s execution is stayed,” while Mr. Berry “on the other
hand, will suffer the risk of being put to death by an unconstitutional means.”
They added, “It is clear that irreparable harm will result if no stay is
granted.”
David P. Voisin, one of the defense lawyers, said the Supreme Court’s action was
“a positive sign that as long as this issue is under consideration, the court is
going to hold executions.”
Even before the court acted, executions had dropped to the lowest level in more
than a decade. There have been 42 executions this year, including one last
month in Texas, which the Supreme Court declined to block hours after granting
review in the Kentucky case. That execution, of Michael Richard, now
appears likely to be the last for months, perhaps until next summer or later if
the court’s decision in Baze v. Rees results in new protocols for lethal
injections.
While the de facto moratorium now in place is reminiscent of a similar period of
no executions in the late 1960s and early 1970s, the resemblance is largely
superficial. During the earlier period, legal challenges to the basic
constitutionality of capital punishment were moving toward the Supreme Court,
which in 1972 invalidated the death penalty laws that then existed. In
1976, the court allowed capital punishment to resume under reformulated
statutes.
In the current cases, by contrast, the constitutionality of the death penalty is
not at issue, and the inmates are not challenging the validity of their death
sentences. Delays of some months in carrying out executions may seem
relatively minor given the many years that most of the inmates have already
spent on death row. Mr. Berry was sentenced in 1988 for the beating death
of a 56-year-old woman, Mary Bounds, whom he had kidnapped as she was walking
home from choir practice.
Mr. Berry, who is now 48, had two earlier appeals in which he challenged the
validity of his death sentence turned down by the Supreme Court. The most
recent was on Oct. 1.
In Mississippi, officials at the state prison at Parchman said they were
notified of the stay 19 minutes before the scheduled execution, which was set
for 6 p.m. Central time. Mr. Berry had eaten what he thought was a last
meal of barbecued pork chops and had taken a shower before the call came.
Chris Epps, commissioner of the state Department of Corrections, told reporters
that Mr. Berry had “cried quite a bit” earlier in the day.
The department issued a statement, saying that “the agency will work within any
newly established guidelines to ensure that executions are carried out in a
constitutional manner.”
Brenda Goodman contributed reporting from Atlanta.
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