The Supreme Court’s announced plan to rule on the constitutionality of the three-chemical formula for carrying out execution by lethal injection was interpreted by the Eleventh Circuit Court on Wednesday to indicate that other executions by that method should be delayed pending a ruling by the Justices. In another development on Wednesday, a death row inmate in Mississippi asked the Supreme Court to delay his death sentence by lethal drugs. Mississippi’s state Supreme Court does not read the Supreme Court’s action as a signal to postpone all executions by that method.
The Justices’ agreement on Sept. 25 to rule on the protocol used in 36 states to carry out lethal injections has led to a patchwork of reactions in lower courts, but the clearly emerging trend is to delay executions while awaiting a final word from the Supreme Court (in the Kentucky case of Baze v. Rees, 07-5439]. The Justices themselves have several times kept executions from occurring, but have yet to indicate whether they intend to stop them all while the Baze case is under review.Â
Their next chance will be the Mississippi case, filed Wednesday by lawyers for Earl Wesley Berry, who is scheduled to be executed at 6 p.m. next Tuesday (Berry v. Mississippi, stay application 07A334, certiorari petition 07-7275). In denying a stay in his case, the Mississippi Supreme Court said that “the Supreme Court of the United States has not yet indicated that, in cases of this posture [where an appeal to the Supreme Court on other issues was denied earlier this month], all executions by lethal injection should be stayed.” If the Justices stay this or other cases “to consider the issue” of lethal injection, it would comply, the state court said.
Meanwhile, the Eleventh Circuit Court, in the case of Siebert v. Allen (07-295) an Alabama case, imposed a stay of execution, saying it was doing so because “the Supreme Court is presently considering the constitutionality of the challenged lethal injection protocol in Baze v. Rees.” While the state had contended that it has altered somewhat its lethal injection protocol, the Eleventh Circuit apparently did not consider that a reason to allow the execution to go forward.
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