States likely to delay executions until ruling

When the US Supreme Court agreed in late September to take up a Kentucky case testing the constitutionality of the protocol used for executions by lethal injection, the action raised an immediate question.

What about other death row inmates slated for execution; should their scheduled executions be postponed pending a final decision by the high court?

It took more than a month of confusing signals, but the Supreme Court appears to have finally answered that question when it granted a last-minute stay of execution Tuesday evening for a Mississippi death row inmate.

Legal analysts say the action makes it highly unlikely that there will be any executions by lethal injection in the US until after the high court hands down its decision in the Kentucky case.

"I wouldn't place any wagers on any [scheduled executions] being carried out," says Kent Scheidegger, who closely follows death penalty issues at the Criminal Justice Legal Foundation in Sacramento, Calif. He says stays of execution will most likely be issued by state and federal judges and that those stays will not be disturbed by the high court.

"There may be a couple of skirmishes, but the main war is over," says Richard Dieter of the Death Penalty Information Center in Washington, D.C. "This is the clearest indication that there is pretty much a de facto moratorium on executions until the Supreme Court decides this [lethal injection] issue."

The Kentucky case, Baze v. Rees, is expected to be heard by the justices in January or February. The Supreme Court will issue a decision by late June.

Of more than three dozen death penalty states, all but one use lethal injection as the preferred method of execution. Most employ the same three-drug protocol at issue in the Kentucky case.

The justices have agreed to clarify when a lethal injection execution might amount to a form of cruel and unusual punishment because of a risk of pain associated with the procedure. The question is how much pain is too much pain under the Eighth Amendment.

"The law applied by lower courts is a haphazard flux ranging from requiring 'wanton infliction of pain,' 'excessive pain,' 'unnecessary pain,' 'substantial risk,' 'unnecessary risk,' 'substantial risk of wanton and unnecessary pain,' and numerous other ways of describing when a method of execution is cruel and unusual," writes David Barron, a lawyer for death row inmate Ralph Baze in his brief to the court.

Given the prospect that lethal injection might amount to cruel and unusual punishment under certain circumstances, legal analysts had questioned whether the court would move to prevent all executions while the Kentucky case was pending. But on Sept. 25 – the same day the high court announced it would hear the Kentucky case – the justices refused to block the execution of Texas death row inmate Michael Richard.

The justices turned down a last-minute, after-hours appeal by Mr. Richard's lawyers. He was put to death that night by the same lethal injection protocol at issue in the pending Kentucky case. That action raised the prospect that other death row inmates could be put to death via a lethal injection protocol that might soon be declared cruel and unusual.

Three weeks later, the court seemed to reverse course when it moved to block scheduled executions in Arkansas and Virginia.

The actions sent new and conflicting signals to state and federal judges. In addition, the court's moves led to confusion among state officials intent on carrying out what they saw as long overdue punishments, and among defense lawyers seeking ways to slow down the capital punishment process.

Some analysts say the justices appeared to be trying to draw a careful distinction between legitimately filed death row appeals on one hand and last-minute, successive appeals that haphazardly grasp for any legal straw that might delay an execution on the other.

The granted stay in the Mississippi case on Tuesday is being widely viewed as a signal by the high court that all lethal injection executions should be stayed pending resolution of the Kentucky case.

The justices granted the last-minute stay of execution in the case of Mississippi death row inmate Earl Berry, who had exhausted all of his appeals. He received his stay of execution even though he presented his lethal-injection appeal in violation of requirements that such appeals be filed much earlier in the process, legal analysts say.

The next test of the court's posture on this issue could come in Florida with the scheduled Nov. 15 execution of Mark Schwab. "That might still be a test case," says Mr. Dieter, if the Florida Supreme Court rules the Schwab execution can go forward. But he adds that the more likely scenario is that the Florida courts or a federal judge will halt the Schwab execution pending the outcome of the Kentucky case at the US Supreme Court.