High court stays execution in Miss.

Ruling effectively sets moratorium until spring

October 31, 2007|By New York Times News Service.

WASHINGTON -- Moments before a Mississippi prisoner was scheduled to die by injection yesterday evening, the Supreme Court granted him a stay of execution 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 of 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 having killed a woman 20 years ago. While there is no schedule for that review, it almost surely will 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 last 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 put on hold.

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, 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 U.S. District Court in Jackson, Miss., dismissed it as untimely on Oct. 24 in a ruling that the 5th U.S. Circuit Court of Appeals affirmed on 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, 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 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 in September in Texas, which the Supreme Court declined to block hours after granting review in the Kentucky case. That execution, of Michael Richard, 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 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, the constitutionality of the death penalty was at issue. In the current cases, by contrast, the inmates are not challenging the validity of their death sentences.

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