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Supreme Court Stays Execution Ahead of Pivotal Case

October 31, 2007 at 12:00 AM EDT
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GWEN IFILL: Mississippi death row inmate Earl Wesley Berry was scheduled to die last night for the murder of a woman 20 years ago. But for the third time in under two months, the Supreme Court stepped in at the last moment. The justices halted the execution because of controversies surrounding the method of lethal injection.

Now the question is: Did that stay create a de facto moratorium on executions around the country? For answers, we turn once again to NewsHour regular Marcia Coyle of the National Law Journal.

Welcome back, Marcia.

MARCIA COYLE, National Law Journal: Hi, Gwen.

GWEN IFILL: Nineteen minutes before he was scheduled to die, he had his last meal of barbecued pork chops, I read. Why did they stay the execution?

MARCIA COYLE: Well, I think to understand some of the confusion that’s been running throughout the states and the lower courts, it helps to see the sequence of events since September.

At the end of September, the Supreme Court agreed to decide a challenge brought by two death row inmates to the particular drug protocol used in Kentucky to do execution by lethal injection. There are 38 states that have the death penalty; 37 of those states — Nebraska being the exception — use the same or very similar three-drug protocol.

Since the Supreme Court decided to take the Kentucky case, it has allowed one execution by lethal injection to go forward, and it has halted three. When it has temporarily halted or stayed, as the courts say, those executions, it said nothing of substance about whether it wanted all executions by lethal injection to be delayed until it decided the Kentucky case.

Last night was the third stay. And it’s being read now as a strong signal to the states that they should postpone lethal injection executions until the Kentucky case is decided. The reason is, and the reason they considered this last stay significant, is this stay, which was granted to a Mississippi death row inmate, was the weakest of the three cases the court considered.

That inmate had been on death row nearly 20 years, had exhausted almost all of his appeals, and he was bringing his challenge at the 11th hour, as you noted. It takes five votes to grant a stay. In that case, there were two dissenters, Justices Scalia and Justice Alito, neither of whom, including the majority, said anything as to why.

Stopping executions until decision

GWEN IFILL: Once again, nobody explains themselves, particularly with the Supreme Court...

MARCIA COYLE: Exactly.

GWEN IFILL: ... except when a decision is made, an actual formal decision, so is there any way of reading in between the lines other than assumption and accumulated weight of evidence or non-action?

MARCIA COYLE: No, I think the consensus in the states now is that, with three stays following the way they have, the court is going to stop executions by lethal injection until it decides the Kentucky case, so the states probably will halt executions.

GWEN IFILL: To be clear, though, this is not a challenge to the death penalty itself. This is actually just about lethal injection.

MARCIA COYLE: Yes, this is very important to understand. The death row inmates in Kentucky are not challenging their death sentences. They're not challenging their convictions. And they're not even challenging the constitutionality of lethal injection as a method of execution.

They're challenging the particular drug protocol being used by Kentucky and most of the other states. They're saying that this drug protocol, when used, is cruel and unusual punishment under the Eighth Amendment.

Focus on three-step injection

GWEN IFILL: Well, don't we have to explain the protocol we're talking about? When you say three steps, you mean it does something which causes extreme pain?

MARCIA COYLE: Yes, there are three different drugs. The first one brings on unconsciousness. The second one paralyzes muscles, including breathing. And the third drug triggers cardiac arrest. The focus of much of the controversy has been on the second drug, that paralyzes the inmate. There are many who believe that it masks excruciating pain caused by the three drugs.

GWEN IFILL: So has the practical effects so far been a reduction in capital punishment rates?

MARCIA COYLE: Yes, absolutely. There are some states that, once litigation began challenging the lethal injection protocol, they stopped executions.

GWEN IFILL: Without the court...

MARCIA COYLE: That's right, absolutely. And then there are other areas of the country where the courts themselves have granted stays of execution as they await what the Supreme Court does with the Kentucky case.

Previous execution challenges

GWEN IFILL: Has the Supreme Court wrestled with something similar to this before? It seems to me there was another time where death penalty cases were essentially put on hold.

MARCIA COYLE: Well, there are two things to note here. It's not the same, but we did have a period in our history where there were no executions and it was something of a de facto moratorium. And that was right after the Supreme Court in 1972 struck down the death penalty under the Eighth Amendment. And then it reinstated the death penalty in 1976.

But the Supreme Court faced lethal injection challenges twice before. In 2004 and in 2006, it had cases that only asked the court if inmates could bring constitutional challenges to lethal injection. And the court opened the door to those challenges. And it's estimated that, since those decisions, about half of the inmates on the nation's death rows have brought litigation.

A decision by June

GWEN IFILL: And these arguments are going to happen when?

MARCIA COYLE: The Kentucky case is scheduled for argument in January. And I think we could probably expect a decision in late spring or June.

GWEN IFILL: Marcia Coyle, as always, thank you.

MARCIA COYLE: My pleasure, Gwen.

JUDY WOODRUFF: Kent Scheidegger of the Criminal Justice Legal Foundation and Virginia Sloan of the Constitution Project will answer your questions on lethal injection and the death penalty in our Insider Forum. To participate, go to our Web site at PBS.org.