Signals Execution Halt During Lethal-Injection Case

By Greg Stohr

Oct. 31 (Bloomberg) -- A divided U.S. Supreme Court signaled it probably will prevent any executions from taking place while it considers the constitutionality of the lethal- injection method used in dozens of states.

The justices yesterday issued a stay of execution about 15 minutes before Earl Wesley Berry was scheduled to be put to death in Mississippi for a 1987 murder. Justices Antonin Scalia and Samuel Alito dissented.

The Mississippi case presented perhaps the best chance for prosecutors seeking to proceed with some death sentences. Berry, who has been on death row since 1988, didn't challenge the method of his execution until this month. The justices intervened even though the state's highest court had said Berry filed his objections too late.

``The prospects of any execution going forward are extraordinarily unlikely between now and the time the court rules,'' said Deborah Denno, an expert on the death penalty who teaches at Fordham University Law School in New York.

The rejection is the third issued by the justices since they agreed Sept. 25 to consider lethal injections in a Kentucky case called Baze v. Rees. The court will hear arguments in that case early next year and is scheduled to rule by July.

Botched Executions

Two death-row inmates say Kentucky's lethal injection procedures violate the constitutional ban on cruel and unusual punishment. The inmates, pointing to botched executions in Ohio and Florida, say they might be subjected to unnecessary suffering and that Kentucky must consider more humane alternatives.

All but one of the 38 death-penalty states use lethal injections, and almost all of those use the same three chemicals that Kentucky uses. Inmates are first injected with sodium pentothal, an anesthetic, followed by pancuronium bromide, which causes the lungs to shut down and paralyzes the body. The final chemical, potassium chloride, then induces a fatal heart attack.

That protocol was adopted by Oklahoma almost three decades ago and then copied by other states. Texas conducted the first execution by lethal injection in 1982.

A 2005 study published in the medical journal Lancet found that in 21 of 49 executions the prisoner endured a feeling of suffocation and a burning sensation through the veins, followed by a heart attack.

The Supreme Court has never struck down a form of execution and hasn't directly addressed the issue since allowing firing squads in 1878.

All told, courts at various levels and state officials have stayed more than a dozen executions since Sept. 25. No executions have taken place since a Texas man was put to death on the day the Supreme Court agreed to take up the lethal injection issue.

In the Berry case, the Mississippi Supreme Court and the 5th U.S. Circuit Court of Appeals both had refused to block the execution.

The case is Berry v. Epps, 07-7348 and 07A367.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

Last Updated: October 31, 2007 00:07 EDT