Final update 8:01 p.m.
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 delay order (found here) came about 15 minutes before Berry was to be put to death by lethal injection in the state penitentiary at Parchman, Miss.
Like some of the Court’s other recent orders refusing to clear the way for executions, this new one is expected to stir greater speculation that the Court — as a more or less regular practice — will now block planned use of the lethal injection protocol in use by 36 states, even if the Justices do not declare a “moratorium” in any formal legal sense. The Court, though, is expected to continue to issue orders a single case at a time, whatever larger implications outside observers may read into its actions. The language the Court used in the Berry order was identical to what it routinely says when it is delaying the effect of a lower court ruling to give itself time to consider whether to hear the underlying appeal.
 The Court has allowed only one execution to go forward since announcing on Sept. 25 that it would rule this Term on the constitutionality of the three-drug protocol now in common use. It has blocked three planned executions, either by issuing stays itself or by refusing to lift a stay issued by a lower court. (The Court on Monday had found that it had no jurisdiction to consider an earlier stay application in Berry’s case. That case had reached the Court through the state courts; the new order came in a case arising from the federal courts, arriving at the Supreme Court later.)
The one execution to occur since Sept. 25, of Michael W. Richard in Texas, occurred in the evening of the day the Court announced it would rule this Term on the constitutionality of the protocol. (That review will come in the case of Baze v. Rees, 07-5439, a Kentucky case. It will be argued either in January or February.)
The Berry case had been considered a significant test of the Court’s willingness to continue to issue stays, since Earl Berry had taken so long to file his constitutional challenge to the protocol. The Fifth Circuit Court, like the Mississippi Supreme Court, had concluded that Berry was not entitled even to a ruling on his constitutional claim, because he had been tardy in filing it. The state has noted that it has used the lethal injection method since 1984, so that method was the standard protocol for all of the 19 years that Berry has been on death row for a 1987 murder of a woman he abducted as she left Sunday choir practice at a church in Houston, Miss.
The Court has said several times in recent years — in fact, as recently as June of last year in Hill v. McDonough — that lower courts should take into account the last-minute nature of challenges to execution methods in considering whether to grant a delay. The state of Mississippi had relied heavily upon those statements in arguing that Berry’s execution should go ahead as planned.
Some lower courts or state officials have interpreted the Supreme Court’s grant of review in the Baze case as an indication that they should delay executions by the lethal injection protocol. Others, like the Fifth Circuit in Berry’s case, have disagreed, saying that the grant of a petition for certiorari by the Justices in one case does not change the law so it does not directly affect others.
The Court on Tuesday did not delay Berry’s execution indefinitely. It said the order was to remain in effect pending its action on a newly-filed petition for review, filed Monday (Berry v. Epps, docket 07-7348). If it decides to deny review of that appeal, the order said, “this stay will terminate automatically.” But, if review is granted, the stay will remain in effect until a final ruling in the case, according to the order. Among the questions raised in the petition, Berry’s counsel are asking the Court to spell out whether executions may be allowed to go forward solely because of the late filing of a challenge to the method. It argues that lower courts are split on their power to dismiss a “last-minute” challenge over an issue that is currently pending before the Supreme Court. The petition also raises issues parallel to those in the Baze case from Kentucky, on whether the current three-drug protocol risks unnecessary pain and suffering for the inmate, and thus is cruel and unusual punishment under the Constitution’s Eighth Amendment.
The only votes on Tuesday’s order that were publicly recorded were those of Justices Alito and Scalia in dissent. It is not necessarily so, however, that all of the other seven Justices favored the stay. It would have taken the votes of five Justices either to grant or deny the stay.
CLICK HERE FOR FULL VERSION OF THIS STORY