Death row reprieve has national backlash

November 2007 14:10

By Andrew Gumbel in Los Angeles

Earl Berry had eaten his final meal of barbecued pork chops and was just 19 minutes away from his appointment with the executioner on Mississippi's death row when the news arrived that the Supreme Court in Washington had granted him a stay of execution.

His lawyers had made a last-ditch appeal arguing death by lethal injection – the method of choice in almost every US state that upholds capital punishment – constitutes cruel and unusual punishment and was thus barred by the constitution.

Berry, a murderer who confessed to the 1987 kidnap and killing of a 56-year-old woman, is far from the only prisoner to make the case. The argument has become widespread ever since a judge imposed a de facto moratorium on executions in California 20 months ago for precisely that reason.

But he appears to be the one who has brought the entire machinery of state-administered executions to a halt across the US for the next several months.

The Supreme Court, which has leaned ever more conservatively in recent years and doesn't seem a likely source of ardent death penalty opposition, agreed last month to take up the lethal injection question based on a case coming out of Kentucky. Since then it has stayed three executions, including Berry's.

Legal scholars now agree that no execution is likely to take place anywhere in the US until the Kentucky case is settled. The Supreme Court will hear arguments in that case in January and is expected to rule in the spring. If the justices decide death by lethal injection needs any modification, however minor, it could be more months still before another execution takes place.

Lethal injection was introduced in the late 1970s, because it was supposed to be more humane than the electric chair. But the cocktail of drugs was not concocted by a doctor or chemical expert but rather by a prison board in Oklahoma. Recent medical evidence has suggested that the second drug, a paralysing agent called pancuronium bromide, may only mask the pain of execution. If the sodium pentothal administered first as a painkiller is not effective, then the prisoner can die in horrible agony without any witnesses being aware of it.

That argument first won over the courts in California, which has since ordered its prison service to redesign its lethal injection regime. That redesign hit a setback this week when a judge near San Francisco said in a tentative ruling that it needed to be subjected to public review and comment – a process that would put off the prospect of another execution in California for months.

Two of the Supreme Court's most conservative members, Antonin Scalia and Samuel Alito, dissented in Tuesday night's ruling staying Berry's execution.

The stay infuriated the relatives of the murdered woman, Mary Bounds. "Now you want to tell me that we got a fair shake today?" her husband, Charles Bounds, said. "Please don't ever let that man out of prison, 'cause you'll have me, then. [...] I'll kill him."