[updated] final update 10:56 p.m. edt
The Supreme Court stayed Earl Berry’s execution in Mississippi Tuesday night over two dissents, Justices Scalia & Alito dissenting. [order here]
Many had suspected that Berry represented the best chance to get a glimpse in to the SCOTUS’s thought process on lethal injection and so-called “Baze stays.” Berry’s lethal injection challenge had been denied by the Fifth Circuit as dilatory. The fact finding about delay by the lower federal courts was, at best, horrible and should have substantially undermined Berry’s application to the Court. Berry’s case was the last best chance for prosecutors to restart executions this year — those efforts failed.
In light of the Supreme Court’s issuance of a stay I strongly suspect the fluid situation that has marked the subject of lethal injection has now somewhat solidified. There will likely be no additional executions by lethal injection until at least after oral arguments & conference in Baze v. Rees, save for volunteers, and most likely until well in to 2008. Note Nebraska does not use lethal injection, volunteers will still likely be executed, and states are free to abandon lethal injection for another method of execution; I still have difficulty calling it a “de facto national moratorium,” but without getting in to why it doesn’t work, as a general concept it aptly explains our current situation. [I would prefer to borrow a term from elsewhere, "a patch quilt moratorium" that is likely to show signs of fraying as it gets tested, pulled, and ages, however, nuance and clarity are, at least in this context, mutually exclusive]. The SCOTUSBlog in this post has additional thoughts.