19 minutes before a Mississippi prisoner was scheduled to die by lethal injection...

19 minutes before a Mississippi prisoner was scheduled to die by lethal injection, the U.S. Supreme Court granted Earl W. Berry a stay of execution on Tuesday evening.
Berry, now 48, was sentenced in 1988 for the Nov. 19, 1987 beating death of a 56-year-old woman, Mary Bounds. Berry confessed to killing her.
By postponing Berry's execution — and previously postponing executions in Texas (Sept. 27) and Virginia (Oct. 16) — the justices sent their strongest signal to date that a nationwide moratorium on lethal injection has taken hold while they consider the merits of the Kentucky prisoners’ arguments.
There were 2 dissenters, Justices Antonin Scalia and Samuel A. Alito Jr., but neither they nor the majority gave reasons for their positions. Because only five votes are required for a stay of execution, it is not clear whether all the remaining seven justices supported it. The court did not provide a reason for the opposition by Scalia and Alito, and no other explanations accompanied its decision, as is common.
The stay will remain in effect until the full court reviews an appeal filed Monday by lawyers for the inmate, Earl W. Berry.
While there is no schedule for that review, it will almost surely not take place until the court decides the Kentucky case, Baze v. Rees, which will be argued in January.
The issue in that case is not the constitutionality of lethal injection as such, but rather a more procedural question: how judges should evaluate claims that the particular combination of drugs used to bring about death causes suffering that amounts to cruel and unusual punishment, in violation of the Eighth Amendment.
Even without a written opinion, the Supreme Court’s action on Tuesday night clarified a situation that had become increasingly confusing as state courts and the lower federal courts, without further guidance from the justices, wrestled with claims from a growing number of death-row inmates that their imminent executions should be delayed.
State and lower federal courts are likely to interpret the Supreme Court's action as a signal that they should postpone executions in their jurisdictions. As a result, the justices will probably not have to consider any more last-minute applications from inmates while the de facto moratorium is in effect.
While the de facto moratorium now in place is reminiscent of a similar period of no executions in the late 1960s and early 1970s, the resemblance is largely superficial. During the earlier period, legal challenges to the basic constitutionality of capital punishment were moving toward the Supreme Court, which in 1972 invalidated the death penalty laws that then existed. In 1976, the court allowed capital punishment to resume under reformulated statutes.
In the current cases, by contrast, the constitutionality of the death penalty is not at issue, and the inmates are not challenging the validity of their death sentences. Delays of some months in carrying out executions may seem relatively minor given the many years that most of the inmates have already spent on death row.
It now appears increasingly likely that no states will carry out executions by lethal injection for the remainder of the year, That would make 2007, with 42 executions so far, the least active year for the death penalty since 1994, when 31 people were executed.
Overall, 18 states now have governor-imposed or court-ordered holds on lethal injection: Alabama, Arizona, Arkansas, California, Delaware, Florida, Georgia, Kentucky, Maryland, Mississippi, Missouri, Nevada, New Jersey, North Carolina, Ohio, Tennessee, Texas and Virginia.
Lethal injection was placed on hold in 10 of those states before the Supreme Court agreed to hear Baze v. Rees, underscoring the legal uncertainty that has surrounded the procedure for much of the past 2 years.