De facto national moratorium on executions

MISSISSIPPI----execution stayed Justices Stay Execution, a Signal to Lower Courts

Moments before a Mississippi prisoner was scheduled to die by lethalinjection, the Supreme Court granted him a stay of execution on Tuesdayevening and thus gave a nearly indisputable indication that a majority intends to block all executions until the court decides a lethal injectioncase from Kentucky next spring.

There were 2 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 notclear 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 Courts 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 Courts 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 inmore than a decade. There have been 42 executions this year, including 1 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 courts 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 theSupreme 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 inmateshave 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 werenotified 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 withinany newly established guidelines to ensure that executions are carried outin a constitutional manner." (source: New York Times)