Stay of Execution Is Granted For Mississippi Murderer
Wednesday, October 31, 2007
The Supreme Court issued an eleventh-hour stay for a Mississippi murderer scheduled to be put to death last night, the third execution the justices have blocked since agreeing to decide whether lethal injections violate the constitutional ban on cruel and unusual punishment.
The reprieve came less than an hour before Earl Wesley Berry was to be put to death for the kidnapping and murder of Mary Bounds in rural Mississippi in 1987.
Death penalty activists and criminal justice experts said the court's action is further evidence of a de facto moratorium on executions until it decides the lethal injection issue. The court itself has not declared such intentions, but its actions in Berry's case were closely watched for clues.
The Mississippi Supreme Court and the U.S. Court of Appeals for the 5th Circuit had both said Berry had raised too late his claim that Mississippi's execution procedures violate the Eighth Amendment.
And the 5th Circuit, based in New Orleans, seemed to set up the issue clearly for the justices, saying that its precedent for denying such applications "remains binding until the Supreme Court provides contrary guidance."
But the court's short order made clear such guidance will come only on a case-by-case basis. The justices gave no reason for granting the stay, and Justices Antonin Scalia and Samuel A. Alito Jr. said they would have allowed the execution to go forward.
Still, Elisabeth Semel, a professor at the Boalt Hall Law School at the University of California and director of its Death Penalty Clinic, said she found it significant that only two justices dissented from the court's decision to grant the stay.
At least five justices must agree to a stay for it to take effect.
Even without a moratorium, the pace of executions in the United States has slowed considerably this year. So far, there have been 42 executions, according to the Death Penalty Information Center, as opposed to 53 last year. The center said only two more are scheduled before the end of the year, and those are in doubt because of the court's action.
A growing number of states have called a halt to lethal injections because of charges that the three chemicals used may not properly protect inmates from pain during the execution. That is the issue justices will consider next year in the case they took in September from Kentucky, Baze v. Rees.
The justices refused to stop the execution of a Texas inmate that took place on the night they announced they had taken the case. But since then, they have granted a stay for a Texas death row inmate, as well as halting the execution of Virginia's Christopher Scott Emmett. They also declined to dissolve a stay that had been issued for an Arkansas inmate by the U.S. Court of Appeals for the 8th Circuit.
In that case, Scalia said he did not view the court's decision to take the Kentucky case to mean that there would be a "stay of every execution in which an individual raises an Eighth Amendment challenge to the lethal injection protocol."