[Deathpenalty] death penalty news----MISSISSIPPI

[Rick Halperin]

Oct. 31



MISSISSIPPI----execution stayed

Justices Stay Execution, a Signal to Lower Courts


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 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 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 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 in
more 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 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."

(source: New York Times)