Continued Use of Lethal Injection in Question

While the United States Supreme Court considers the chemical composition used to administer lethal injections, many jurisdictions are staying pending cases involving the use of the same. According to SCOTUSblog, the Court had agreed to consider the constitutionality of the current lethal injection formula used in 36 states. Such consideration comes as a result of the Court’s decision to review the case of Baze v. Rees (Supreme Court docket number 07-5439).

A total of 17 states have suspended any executions by lethal injection until such time as the United States Supreme Court rules on the constitutionality of the chemical composition used. The only execution scheduled to be held before the spring of next year is in Mississippi, where the state is awaiting a ruling from the U.S. Supreme Court.

While states such as Alabama, in the case of Siebert v. Allen, are staying execution by lethal injection without an explicit ruling by the United States Supreme Court, Mississippi is awaiting a ruling in the case of Berry v. Mississippi (Supreme Court docket numbers 07A334 and 07-7275). The Mississippi Supreme Court has refused to stay the execution, scheduled for 6:00 P.M. next Tuesday, based on the fact the United States Supreme Court has not yet indicated the need to stay all executions by lethal injection; the Mississippi Supreme Court has indicated it would comply if the U.S. Supreme Court issues a stay of the execution in this case.

Meanwhile in Texas, the Court of Criminal Appeals is drawing criticism for staying a September 25 execution when a rushed filing was delayed past the court’s closing time due to computer issues. The same day the Court refused to accept any late filing in the case is the same day the United States Supreme Court agreed to hear Baze. The New York Times is reporting that any motion to stay the execution could not be brought with the U.S. Supreme Court due to the fact that Court of Criminal Appeals never issued a definitive ruling that could then be appealed. The question of whether the execution would have been stayed by the U.S. Supreme Court will never be answered, but Berry may provide further insight into the issue.

The decision in Baze will almost certainly alter the landscape of lethal injection executions in the United States. While the ultimate change may be as minor as reformulating the chemical composition used, it is already creating effects on states that had executions scheduled and the prisoners involved, and causing many to think about the issues associated with such executions. As we await a final ruling, it will also be interesting to watch cases such as Berry, which may indicate the direction the Court is heading, or at the least send a message to states regarding staying executions until a final decision in Baze is rendered. A stay of execution in Berry may be sufficient to persuade states, such as Texas, that lethal injection executions should be halted without the need to obtain case-by-case rulings from the U.S. Supreme Court.