Court delays Mississippi execution
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.
Lyle, I think it speaks volumes that I learned about this from SCOTUSblog first, and not one of my hometown papers. Over the past few months the site has become nearly incomparable in terms of coverage.
(Psst–it’s the Fifth, not the Eleventh).
Comment by David McCarty — October 30, 2007 @ 7:11 pm
Mississippi is in the 5th Circuit.
Comment by Amy Taylor — October 30, 2007 @ 7:30 pm
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.
Yes, but doesn’t the following sound like Roberts or Kennedy requested language? “If it decides to deny review of that appeal, the order said, ‘this stay will terminate automatically.’“
Comment by Jacques MacKenzie — October 30, 2007 @ 8:01 pm
The Supreme Court spends far too much of its time on DP cases. Slowly but surely, the court, by insisting on making a “federal case” about every aspect of the DP, and thus micro-managing every aspect of DP, from what kind of people can be executed (no 17 yr olds, no retarded, etc.) to what methods can be used, to what long drawn-out appeals are required, is moving towards a brennan-marshall position in which, at the end of the day, the court will just ban it outright on the grounds that it is impossible for the DP to run the gauntlet of all the required procedural scrutiny.
of course 95% of this scrutiny is manufactured by the court itself, not actually mandated by the constitution the framers enacted.
Comment by Stephen Jaros — October 30, 2007 @ 8:28 pm
The phrase “this stay will terminate automatically” is regularly employed in comparable orders in capital cases, so I don’t think it supports any inference that a particular Justice requested that phrasing.
Comment by Rob Owen — October 30, 2007 @ 9:21 pm
Deo gratias!
The Court cannot spend “too much of its time” on death penalty cases. This is the ultimate constitutional issue: deprivation of life. The lower courts are all-too-ready to ride roughshod over procedures meant to ensure that defendants receive a fair trial and sentencing. Appeals are “drawn out” because states insist on arguing endlessly about timeliness and procedural default, rather than the substantive issues.
Comment by Anne Borelli — October 30, 2007 @ 10:24 pm
is moving towards a brennan-marshall position
No, it isn’t.
The phrase “this stay will terminate automatically” is regularly employed in comparable orders
What is a “comparable order”? And what is the argument that Kennedy and Roberts voted against without dissent?
Comment by Jacques MacKenzie — October 31, 2007 @ 12:17 am
The “do as I say not as I do” Court continues its work. The law is quite clear that the stay should not have issued, given the dilatory filing. The states (let alone the victims) have a right not to be jerked around like this. At least 5 Justices have allowed utter gamesmanship to win a stay. They ought to be ashamed of themselves.
Comment by Sean O'Brien — October 31, 2007 @ 1:46 am
I think it’s fair to say that Justice Thomas would deny the stay, so the four liberal justices must have gotten a vote either from Justice Kennedy or Chief Justice Roberts. If it’s Justice Kennedy, I’m really not surprised. I would be surprised if it’s Chief Justice Roberts, unless he just decided this to actually read through the petition and then vote not to grant cert.
Comment by Chee Foong Chew — October 31, 2007 @ 5:54 am
The phrase, “this stay will terminate automatically…,” is indeed boilerplate text in orders of this type. Anyone who peruses the order lists regularly would recognize it.
On the subject of voting…this is a murky area, as it’s somewhat unclear under what circumstances the justices choose to publish their votes on interim orders like this one. Chief Justice Roberts, being a fairly reasonable fellow, may well have believed that it was appropriate to preserve the status quo while the petition is considered.
Comment by Marc Shepherd — October 31, 2007 @ 8:28 am
Hallelujah I say. When life is the subject of the conversation, it should never be trumped by procedure. If you read the petition filed in Baze you will clearly see that it has become impossible to “fairly” administer capital punishment. It should be abolished. Period. We should not be scapegoating a few for the sins of many.
Comment by Lorraine Sumrall — October 31, 2007 @ 9:46 am
“We should not be scapegoating a few for the sins of many.”
How many people kidnapped Mary Bounds and beat her to death? One. Berry is not a scapegoat. He chose to do what he did. He chose to incur the punishment. It should have been carried out many years ago.
Comment by Kent Scheidegger — October 31, 2007 @ 11:04 am
is indeed boilerplate text in orders of this type.
I think you missed my point, which Chew got, which is that Thomas likely didn’t vote with the liberals. Not to mention this particular case — and order — got so much press attention because it is unusual. Therefore, the idea that Roberts or Kennedy was not the additional vote is silly and the notion that this order is comparable to other orders is inaccurate. I think your claims about this being boilerplate language are nonsense.
Comment by Jacques MacKenzie — October 31, 2007 @ 11:35 am
Not to mention inconsistent with the claim that “Chief Justice Roberts, being a fairly reasonable fellow, may well have believed that it was appropriate to preserve the status quo while the petition is considered.” Yes, so reasonable that he joined an order with the language I noted might have been a condition for his vote.
Comment by Jacques MacKenzie — October 31, 2007 @ 11:36 am
Jacques, all I said was that that particular language is boilerplate in similar legal situations, i.e., used all the time, and not crafted as a one-off for this case. That is a fact. Speculate all you want about internal Court politics (I enjoy it too), but there are certain standard orders that come out over and over again, and this is one of them.
Comment by Marc Shepherd — October 31, 2007 @ 12:39 pm
that particular language is boilerplate in similar legal situations
And what is a “similar” legal situation to this one?
Comment by Jacques MacKenzie — October 31, 2007 @ 12:58 pm
i.e., used all the time, and not crafted as a one-off for this case.
Who said anything about “crafted” only for this case? I said a condition for Roberts’ or Kennedy’s vote. Unless you think Thomas voted with the liberals, I fail to understand your point.
Comment by Jacques MacKenzie — October 31, 2007 @ 1:00 pm
All the SCOTUS means is that most likely they are going to “hold” all petitions with Baze claims until it is decided. Then they will vacate and remand or deny cert. We can speculate all we want but the true test will come at oral arguments in Jan 08.
Comment by Dave Pancione — October 31, 2007 @ 1:50 pm
All the SCOTUS means is that most likely they are going to “hold” all petitions with Baze claims until it is decided.
I know what the language means. But I will note that all you people chiding speculation here are doing just that. Look how speculative the above statement here is: “All the SCOTUS means is that most likely they are going to…” Thanks for the non-clarification.
Comment by Jacques MacKenzie — October 31, 2007 @ 3:59 pm
And what is a “similar” legal situation to this one?
When there is an application for stay of execution, and a there is a cert. petition pending, the justices issue an order saying precisely what this one did: “Should the petition for a writ of certiorari be denied, this stay shall terminate automatically.” It happens fairly often, and this seems to be the language they always use in that situation. In fact, I don’t think they ever grant a stay of execution without adding that language, unless they just grant cert. at the same time. All it means, as a practical matter, is that if the Court denies cert. later on, they don’t have to explicitly terminate their own stay. This is the wording routinely used in this particular situation.
Comment by Marc Shepherd — October 31, 2007 @ 4:24 pm
Berry is most definitely a scapegoat. A scapegoat of our system. He is one of the 2% convicted of homicide that receive the death penalty. Our system is fundamentally flawed and can’t be fixed.
Comment by Lorraine Sumrall — October 31, 2007 @ 4:33 pm
Okay. The SCOTUS will not allow any executions in the US until Baze is decided. That language in the grant of the stay has been used numerous times when there is an issue pending such as this. We are all speculators. However, as I mentioned earlier, we will not know anything until the oral arguments.
Comment by Dave Pancione — October 31, 2007 @ 6:08 pm
When there is an application for stay of execution, and a there is a cert. petition pending
Except this isn’t that situation. This is a new, unrelated cert petition, not the cert. petition related to the stay application. Hence, the Scalia and Alito dissents.
That language in the grant of the stay has been used numerous times when there is an issue pending such as this.
Except that isn’t true if you formulate the issue at the right level of generality. I do not question what the practice is in the case of a stay application and a related cert. petition. But this is not that situation.
Comment by Jacques MacKenzie — October 31, 2007 @ 7:49 pm
Nor do I dispute that it would be boilerplate, were that situation identical to this one. It is not. The decision to transfer the boilerplate of one context to another, different context is not a mechanical or automatic decision.
Comment by Jacques MacKenzie — October 31, 2007 @ 7:52 pm
The motion to stay that the Court granted is certainly tied to the pending cert petition. Both stem from the district court’s denial of injunctive relief in a 1983 action and the Fifth Circuit’s affirmation of that order. Although both a cert petition and companion motion to stay were filed after the Mississippi Supreme Court refused to consider a successor petition, both were previously denied by the Court.
I would like to point out, also, that nothing in the petition challenges the death sentence. All that is challenged is the method of carrying out the sentence. If Mississippi’s protocol required that the prisoner be drawn and quartered, would the Court have engaged in some sort of “micro-management”?
Comment by Jack Williams — November 1, 2007 @ 8:40 am
I realize that this is a much debated topic of death penalty. But my best friend’s mother was the victim. They have had to live with this for 20 years and now going thru tremendous grief again just to be jerked around by the courts. I thnk the courts have forgotten the victims and their families. Lethal Injection is a much better human way than the electric chair, don’t you think? Eral Berry did not care about being humane when he abducted and murdered Mary Bounds. We need some balance in our courts…
Comment by Judy McBride — November 1, 2007 @ 8:52 am
Although both a cert petition and companion motion to stay were filed after the Mississippi Supreme Court refused to consider a successor petition, both were previously denied by the Court.
I think we’re making the same point here. Perhaps “related to” reads too broad, but I’m trying to suggest we need a tighter connection than your “tied to” rule here.
Comment by Jacques MacKenzie — November 1, 2007 @ 11:29 am
Berry did not care about being humane when he abducted and murdered Mary Bounds. We need some balance in our courts…
Exactly. The Court shouldn’t be shifting around the rules to revive unrelated stay applications just to avoid the imposition of legal punishments.
Comment by Jacques MacKenzie — November 1, 2007 @ 11:33 am
The motion to stay that was granted was directly related to a cert petition contends that the State will violate the 8th Amendment if it executes Mr. Berry using the lethal injection protocol that it presently employs. One premise of the stay is that there is a pending petition raising a valid constitutional argument.
The Bounds’ loss is a grave one. No one can make light of that or overlook that. That does not, though, justify scrapping the 8th Amendment. The Constitution does not contain a lowest-common-denominator standard of punishment. Nor should we, as a civilized society, promote one.
Lethal injection is not necessarily a better method of punishment than execution. Veterinarians in some states could not euthanize animals using the lethal injection protocols under scrutiny.
If veterinarians can arrive at a humane means of euthanizing animals, so can states. Nothing in the lawsuits suggests legal punishments should be avoided; the suits simply argue that the punishments must be non-cruel and humane.
Comment by Jack Williams — November 1, 2007 @ 4:49 pm
The motion to stay that was granted was directly related to a cert petition
I think we all know the difference between “a” and “the”.
Comment by Jacques MacKenzie — November 1, 2007 @ 11:13 pm
Regardless of whether we know the difference between “a” and “the,” we don’t seem to be in agreement as to what “relating to” means.
The Supreme Court received a cert petition stating that the petitioner is entitled to relief under Section 1983 because the State’s execution protocols violate the 8th Amendment and because the State intended to execute the petitioner under those protocols. Accompanying that cert petition was a motion to stay that referred specifically to THAT cert petition.
The motion to stay, and the Court’s grant of the motion, had nothing to do with an unrelated cert petition. Nothing unrelated was revived.
Are you trying to articulate the opinion that Section 1983 is an improper vehicle for raising an 8th Amendment argument?
Comment by Jack Williams — November 2, 2007 @ 11:52 am
Jack, I don’t think people are trying to argue that Section 1983 is an improper vehicle–what people are saying is that the guy waited too long to file his claim. Claims have to be raised in a timely manner, and here they were not, yet the Supreme Court rewarded tactics that it has itself described as abusive. In a rational legal system, capital murderers, after they have had years of appeals, would have less equity on their side than any other litigant. But here the Court saw fit to reward a stay application for a well-known claim filed a scant 12 days before the scheduled execution.
Comment by Sean O'Brien — November 2, 2007 @ 12:41 pm
The Supreme Court vacated a stay issued on a last-minute 1983 method-of-execution claim in Gomez v. United States District Court (Harris), 503 U.S. 653 (1992), even though the underlying Eighth Amendment claim was considerably stronger than in the present cases. If Gomez is no longer the law, the Supreme Court needs to say so explicitly. If it is the law, I can see no basis for distinguishing Berry.
Justice Stevens dissented in Gomez. The gas chamber was unnecessarily cruel, he said, because “numerous medical, legal, and ethical experts” agreed that lethal injection was the way to go. His source for that statement was the application for stay prepared by Harris’s lawyers at the ACLU’s death penalty project.
Comment by Kent Scheidegger — November 2, 2007 @ 1:31 pm
But here the Court saw fit to reward a stay application for a well-known claim filed a scant 12 days before the scheduled execution.
Yes, exactly. My position — in line with Sean and Kent — is that because the second stay application was invalid due to untimeliness, the Supreme Court must have revived the first one, treating the second cert petition as a substitute for the rejected one. Thus, the second cert petition is not “related to” the first stay application.
I really thought this was obvious.
Comment by Jacques MacKenzie — November 2, 2007 @ 5:34 pm
Please look on this page: http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/index.html
Under “latest developments,” you will see two links to stays in Mississippi cases.
The October 29 link takes you to the order denying the first stay motion. It states that the Mississippi Supreme Court had an independent state ground for denying relief, thereby depriving the United States Supreme Court of jurisdiction. Note the style–Berry v. Mississippi; that tells you that this is the cert from the state post-conviction petition.
Now turn to the second one–October 30. That one is styled Berry v. Epps and others. That tells you that it is the cert from denial of injunctive relief in the federal 1983 action; you sue the person depriving you of your rights, not the state.
(And think about it– how would the Court have revived a petition over which it had no jurisdiction?)
Although the State argued the 1983 action was untimely, and although the district court and the Fifth Circuit agreed with that argument and for that reason refused to stay the execution, SCOTUS neither agreed nor disagreed; SCOTUS did stay the execution, though, until it could consider the cert petition arising out of the federal action.
Laches is an equitable argument. It requires consideration of prejudice suffered by the party raising the defense. Gomez doesn’t change this–it speaks of a strong presumption against a stay, not an irrebuttable presumption. Both the district court and the appeals court failed to consider prejudice to the State of Mississippi in analyzing the issue. In essence, they applied an irrebuttable presumption.
The State’s prejudice is slight–Baze will be decided in months. Maybe this figured into the Court’s decision. At this point, though, we’re doing nothing but reading tea leaves.
Regardless, the second stay petition was sufficiently timely to and did secure the stay; the Court concluded it did not have jurisdiction to act upon the first one.
The second stay application was not invalid due to untimeliness. The second stay application was granted. The first stay application was dismissed.
Comment by Jack Williams — November 2, 2007 @ 9:57 pm
how would the Court have revived a petition over which it had no jurisdiction?
Easy. It violated its own rules.
Regardless, the second stay petition was sufficiently timely to and did secure the stay… The second stay application was not invalid due to untimeliness.
The above, sir, is your pedantic opinion. None of the documents you cite to — which I have read — make your case.
The second stay application was granted.
Improperly.
The first stay application was dismissed.
Yes. Which is why the Court must have revived it.
Comment by Jacques MacKenzie — November 3, 2007 @ 4:37 pm
In essence, they applied an irrebuttable presumption.
There really is no proof of this. They decided against the murderer, but that doesn’t mean their logic was flawed.
Comment by Jacques MacKenzie — November 3, 2007 @ 4:38 pm
The State’s prejudice is slight–Baze will be decided in months.
This isn’t true. This is major. Imagine the people this murderer harmed die before this murderer is put to death.
Also, you make an error. The first stay application was dismissed because of the substance of the cert petition that arrived with it; there was nothing about the stay application itself that resulted in its dismissal. You’re conflating procedure and substance here. (And also ignoring that there is no equitable argument for late filing of a claim you had years to file but chose not to.)
Comment by Jacques MacKenzie — November 3, 2007 @ 4:52 pm
Just to be clear, add “[At best,]” before “[i]mproperly.”
Comment by Jacques MacKenzie — November 3, 2007 @ 5:02 pm
The post stating that the lethel injection protocol cant be used on animals in some states further illustrates why a daulbert like standard should be adhered to or at least applied to this case. Different animal species react entirely different to chemicals - so while it may be very cruel to use the LI cocktail on a dog, cat or horse, it has absolutely no relevance as to whether it is cruel to LI protocol for human criminals. (note that this is not to say that there are not errors in the implementation of the LI protocol - which is a separate issue since braze is claiming the LI cocktail is cruel and unusual punishment)
Comment by Joe kosanda — November 3, 2007 @ 5:05 pm
Jacques,
I won’t argue equities with you. It’s a largely subjective analysis; different people–and different judges–weigh specific facts differently. Needless to say, though, I disagree with your opinion, I think it’s safe to say that at least five of the justices aren’t ready yet to reach your conclusion either. They might later–but only after a closer look.
As to your procedural analysis, though, you’re dead wrong. I’m one of the attorneys on the case; I am very comfortable with my understanding of how and why the case wound through the system in the way in which it did.
Jack
Comment by Jack Williams — November 4, 2007 @ 9:46 am
I am very comfortable with my understanding of how and why the case wound through the system in the way in which it did.
That’s great. But this — “The second stay application was not invalid due to untimeliness” — is your opinion, not a fact you observed because you are on the case. It is good to know that you are comfortable with your blatant appeal to judicial activism and wonderful to read that equity has no objective content and so necessarily favors convicted murderers.
I think it’s safe to say that at least five of the justices aren’t ready yet to reach your conclusion either.
Nice to know you think law is about exercise of power; not about application of rules. It explains your improper attitudes. If I were defending an inmate on death row, I would never make a public statement using the phrase “dead wrong”.
Thanks for making my stomach turn.
Comment by Jacques MacKenzie — November 4, 2007 @ 5:23 pm