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October 30, 2007

Down to the wire with execution still scheduled now stayed in Mississippi

30Along with Kent at Crime & Consequences, I am still awaiting word on whether the Supreme Court will block Mississippi's effort this evening to execute Earl Wesley Berry.  I am bad at reading tea leaves, so I am not sure what to make of the fact that the Supreme Court still has not yet resolved Berry's request for a stay coming from his lethal injection case in federal court.  Perhaps the delay is a sign that the Justices are putting together some sort of opinion to accompany whatever action (or non-action) they take.  Given that this Mississippi case has been on everyone's radar screen since last week, the Justices have had a bit more time than usual to adjudicate this matter with everyone is watching closely.

Some recent related posts:

UPDATE:  While I was spending the evening playing dad taxi, the Supreme Court continued the de facto moratorium on lethal injection executions by granting a stay for Berry.  This post from Lyle Denniston at SCOTUSblog provides all the peculiar details, including the court's stay order here.  Up-to-date media coverage includes this piece by Jan Crawford Greenburg at ABC News, this piece by Linda Greenhouse at the New York Times and similar articles from Bloomberg and Reuters.

Over at CDW, Karl Keys provides this nuanced assessment of where matters now seem to stand in the moratorium debate:

In light of the United States Supreme Court’s stay tonight of the Earl Berry execution in Mississippi, I strongly suspect the fluid situation that has marked the subject of lethal injection has now somewhat solidified. There will likely be no additional executions by lethal injection until at least after oral arguments & conference in Baze v. Rees, save for volunteers, and most likely until well in to 2008.  Note Nebraska does not use lethal injection, volunteers will still likely be executed, and states are free to abandon lethal injection for another method of execution; I still have difficulty calling it a “de facto national moratorium,” but without getting in to why it doesn’t work, as a general concept it aptly explains our current situation.  [I would prefer to  borrow a term from elsewhere, “a patch quilt moratorium” that is likely to show signs of fraying as it gets tested, pulled, and ages, however, nuance and clarity are, at least in this context, mutually exclusive].

October 30, 2007 at 05:09 PM | Permalink


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If the Supreme Court does not act (one way or the other) by 6:00, Mississippi should not wait--it should go ahead and carry out the execution.

Posted by: federalist | Oct 30, 2007 5:51:34 PM


Posted by: | Oct 30, 2007 7:55:16 PM

The stay was granted. I am providing posts from Steve Hall's StandDown.org:


October 30, 2007
Supreme Court Blocks Lethal Injection Execution

Filed at 6:48 p.m. ET

WASHINGTON (AP) -- The Supreme Court halted an execution in Mississippi
Tuesday, less than an hour before a convicted killer was scheduled to be put
to death by lethal injection.

The last-minute reprieve for Earl Wesley Berry is the third granted by the
justices since they agreed late last month to decide a challenge to Kentucky's
lethal injection procedures.

Justices Samuel Alito and Antonin Scalia would have allowed the execution to
go forward.

Berry was convicted of kidnapping a woman in 1987 and beating her to death
before dumping her body in the woods. His execution was planned for 7 p.m. EDT.

The Supreme Court has allowed only one execution to go forward since agreeing
to hear the Kentucky case. Michael Richard was executed in Texas on Sept. 25,
the same day the court said it would hear a lethal injection challenge from
two death row inmates in Kentucky. State and lower federal courts have halted
all other scheduled executions since then.

Berry asked for a delay at least until the court issues its decision in the
Kentucky case. He claims the mixture of deadly chemicals Mississippi uses will
cause unnecessary pain, constituting cruel and unusual punishment.

The 5th U.S. Circuit Court of Appeals said Berry, sentenced to death in 1988,
waited too long to challenge the constitutionality of the lethal injection

/ / / / /

Tuesday, October 30th, 2007 6:42 pm

Court delays Mississippi execution
Lyle Denniston

Over the dissents of two Justices, the Supreme Court on Tuesday postponed the
execution of Mississippi death row inmate Earl Wesley Berry. Justices Samuel
A. Alito, Jr., and Antonin Scalia noted that they would have denied the
application to put off the execution, scheduled for 6 p.m. in Mississippi.

The Berry case had been considered a significant test of the Court’s
willingness to stay capital punishment by the lethal injection method, because
Berry had taken so long to file his constitutional challenge to that protocol.
The Eleventh Circuit Court, like the Mississippi Supreme Court, had concluded
that Berry was not entitled even to a ruling on his claim, because he had been
tardy in filing it.

Steve Hall
512.879.1675 (o
512.627.3011 (m

Posted by: Deborah W. Denno | Oct 30, 2007 8:29:23 PM

What are really talking about here? Whether lethal injection is an 8th amendment violation? Fine, then the Court should provide a distinct answer to how states should implement the death penalty. Enough of this "personal objection therefore I as the moral conscious of America, will do whatever to undue the death penalty." Let's all remember that lethal injections were requested by the death penalty opponents who thought previous methods were cruel... Now unless those folks are willing to conclude that the TEXT of the constitution means nothing, then there must be a constitutionally permissive method. And damn it, the Court needs to state what will make them happy and stop putting their personal preferences ahead of the Constitution: http://volokh.com/posts/1193762167.shtml

Posted by: | Oct 30, 2007 9:57:37 PM

A lawless action . . . . pure and simple.

Posted by: federalist | Oct 30, 2007 10:25:41 PM

To the anonymous poster,

The court took Baze to determine whether the protocols for administering lethal injections that states have adopted (behind closed doors) are constitutional. There is no argument that lethal injection, per se, is not a constitutionally permissible method. It's the specific three-drug protocols that are being challenged. The argument the Supreme Court is considering is analogous to an argument that, while a state may constitutionally make death by firing squad the method of execution, it nonetheless may not require that the squad doing the firing be blindfolded, because that would constitute cruel and unusual punishment. That's an easy Eighth Amendment question, and so is this one, although I'm not convinced the Justices will understand it and get it right.

Posted by: DK | Oct 30, 2007 11:34:40 PM

A lawless action . . . . pure and simple.

If only life were that simple.

Posted by: Marc Shepherd | Oct 31, 2007 8:31:42 AM

Life isn't that simple. This is. The Supreme Court has rewarded gamesmanship and tactics that it has described as abusive. The Court's action is an affront to the dignity of the state of Mississippi, and it is lawless.

The Justices that ordered the stay ought to be thoroughly ashamed of themselves.

Posted by: federalist | Oct 31, 2007 12:00:44 PM

The court has done no more than their duty to respond to an increasing body of evidence that suggests that the present protocol may break the rules of "cruel and unusual punishment" as incorporated in the constitution. They will make a judgment on that in the coming months.
Meanwhile, it would be unlawful to continue executions in the knowledge that there is doubt over present protocol.
The argument over timing of appeals is so petty as to be irrelevant when set against this. The man isn't going anywhere.
Some of us are hoping for than this, but the likelihood appears to be that the pause will give no more than an opportunity for individual State legislatures, and others, to consider this factor amongst others, to consider if the death penalty today is appropriate. The ABA report will no doubt add to the debate that should follow.

Posted by: peter | Oct 31, 2007 12:18:26 PM

"The argument over timing of appeals is so petty as to be irrelevant when set against this." You're right - why have procedure at all? If you are sentenced to the death penalty, feel free to choose the forum where you first present your argument and choose the time you decide to do so. Ignore that silly AEDPA that was supposed to eliminate these actions -- what does Congress know -- they're just representative of the U.S. population after all.

Posted by: JustClerk | Oct 31, 2007 1:32:18 PM

While the "procedures" relating to timing may have been well intentioned, to provide a framework for attorneys and the courts to work efficiently together, it can never have been the intention to trap defendants into a hazardous position of death. The reality is that we have seen abuse after abuse of these timings where defendants are left effectively without a legal defense because of, in some cases, poor representation, or simple error, or impossible circumstance, or as in this case, new evidence concerning the dangers of a protocol not being previously available. While the law never claims to achieve Justice, it should at least ensure that ALL defendants are given the benefit of leeway when the "fault" is patently not theirs. We should not be reducing the defense of the most vulnerable to a game amongst members of the law profession and judiciary, especially when the judiciary hold all the aces.

Posted by: peter | Oct 31, 2007 2:51:26 PM

"or as in this case, new evidence" So the folks who filed these challenges over a year ago knew something that this guy or his lawyer's didnt? He's given safeguard after safeguard after safeguard. The fact that you're even willing to make the argument that this is a "new" argument goes to demonstrate that you just don't want the rules to apply in death penalty case despite the fact that many of them were adopted with the express purpose of streamlining this exact process.

Posted by: JustClerk | Oct 31, 2007 3:41:08 PM

You miss (or avoid) the point in this particular case. The defense he (his attorney) is trying to use, successfully at the moment, is not one concerning innocence, but a general one concerning the means of his death. He is entitled to the protection of the court against what may well be judged "cruel and unusual punishment". The Justices have already accepted that there is a prima facie case to consider. This then affects ALL death penalty candidates, regardless of any norms of appeal. And that is how the Supreme Court have apparently, rightly, responded.
If you are suggesting that the AEDPA rules were instigated simply to execute people faster by cutting corners (as admittedly some in Congress and beyond would concur) then the moral ground is swept away from under them. How could the Court have responded differently and maintained any pretense or credence in the notion of Justice?

Posted by: peter | Oct 31, 2007 5:25:17 PM


The AEDPA doesn't apply to civil rights actions under 42 USC 1983, pursuant to which these lethal injection challenges are brought. Really, it's as if you think the rules of civil procedure (and even substantive law) don't apply to death-sentenced persons. All of your legal assertions above are way off the mark, and you clearly have no idea just how much rules bend when one of the litigants is under a death sentence, but in the opposite direction in which you think. No litigant but a death-sentenced one can be "too late" to apply for prospective injunctive relief. The concept of being too late to ask for protection from a future harm is not even coherent, yet it has been developed to apply only against them. For all other litigants, being "late" in this manner is a requirement to even have standing to sue.

If current lethal injection protocols are unconstitutional, there is no general legal principle that would foreclose any currently living death-sentenced person from obtaining relief from that harm. That's why the Supreme Court is staying cases, and properly so.

Posted by: DK | Oct 31, 2007 8:23:45 PM

DK -- this is the only situation in which a so-called civil suit is abused in an attempt to injoin a court authorized criminal punishment. Other 1983 suits seek to remedy past wrongs, while this seeks to stop a punishment that is allegedly unconstitutional. The litigant in these challenges knows or should have known of the basis for his suit on the day he is sentenced. In every other civil case, laches would bar his claim if he attempted to bring it for the first time 14 years after judgment was imposed.

While you insist that the rules are bent in favor of the State at every turn, you don't cite to a single example. And I question how you can make that conclusion given that the average length of death row appeals easily exceeds a full decade, dozens of hearings and oral arguments, and often independent reviews of the aggravating/mitigating factors.

Posted by: JustClerk | Oct 31, 2007 9:57:14 PM

Peter, you write:

"The argument over timing of appeals is so petty as to be irrelevant when set against this. The man isn't going anywhere."

Well, I am sure the victim's family would take issue here. It is appallingly cruel to victims' families to have a date set, only to have it yanked out from under them to resolve a claim that could have been filed years earlier. Moreover, we live in a federal system. The states, in a very real sense, are entitled to the dignity of not having their criminal judgments interfered with by abusive tactics, and last-minute filings (except with respect to newly discovered innocence) are abusive.

What is amazing to me is the absolute disdain for any consideration of Mr. Bounds. Make no mistake, the Supreme Court has acted completely irresponsibly, and they have earned the contempt of all who think that judges ought to be, above almost all else, restrained and circumspect. And you cheerlead a result that causes Mr. Bounds unimaginable suffering. Justice needs to be done in this case, and the Supreme Court let a vexatious and abusive filing delay justice. Contemptible. Utterly contemptible.

Posted by: federalist | Nov 1, 2007 12:15:22 AM


The Supreme Court's standing and ripeness jurisprudence is clear that no case or controversy even exists until a concrete injury is either extant or imminent. When a person is sentenced to death, there are still years of appeals before he will actually be executed. During the intervening period (1) the protocols are subject to change (because most are left in the complete discretion of state agencies); or (2) the person may obtain relief on direct appeal or in habeas proceedings, mooting the need for any lawsuit. It is for these very reasons that even Texas's high court (that's right, Texas) has ruled lethal injection challenges aren't even ripe at the time of direct appeal, because, in their language, "The method in which the lethal injection is currently administered is not determinative of the way it will be administered at the moment of appellant's execution." These challenges aren't to the death sentence (if they were, they'd sound in habeas); they are to a later event, the way the sentence is administered at the time of execution (which is why it sounds in civil rights and must actually be brought near the time of execution).

Laches cannot be a defense to a claim alleging a future injury. As I said before, such a theory is entirely incoherent: there is no such thing as being too late to ask a court to protect a person from something that has not yet happened. That you seem unable to grasp this in the death penalty context whereas I am confident that you would in any other demonstrates my point. (In fact, I am confident that you would be unable to find any cases outside the death penalty context that you could use to state general principles of law to support that theory.)

There is no manipulation here, and that you think there is highlights how easy it is for courts to bend the rules in death cases. By the law (and equity) that is generally applicable to everybody else, these persons are entitled to have their executions stayed while the constitutionality of the protocol by which the state intends to administer their death sentence is being reviewed. This is the application of the rule of law. For a change.

Posted by: DK | Nov 1, 2007 1:07:41 AM

David Dow's piece in the Washington Post today is also worth reading:

Posted by: peter | Nov 1, 2007 5:13:32 AM

DK -- you again conveniently ignore the facts. Accepting your premise as true -- no claim until the injury is imminent, then the injury becomes imminent the day that his execution date is set by the DRC. Berry did not file a suit in a timely manner when that date was set. Instead, he attempted to game the system by waiting and filing later. Contrary to your unsupported assertions, attempting this in any other suit would cause the suit to be dismissed. This is especially true in time sensitive cases. Review election challenges and the like and you'll find that periods as short as week can result in laches. Here, Berry waited for months after his execution date was set to try and challenge the protocol.

Posted by: JustClerk | Nov 1, 2007 8:26:53 AM

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