No executions in October pending Supreme Court review of lethal injection

WASHINGTON — For the first time in nearly three years, a month passed with no executions in the United States.

No death sentences were carried out in October, as judges and elected officials effectively halted executions following the Supreme Court’s decision to rule on lethal injection procedures in a case from Kentucky.

The last month with no inmate put to death was December 2004.

On Tuesday, the high court halted an execution in Mississippi. The reprieve for Earl Wesley Berry, minutes before he was scheduled to die, was the third granted by the justices since they agreed in late September to hear the Kentucky case.

The result of the delays: Fewer executions in 2007 — 42 to date — than in any year since 1994.

Kentucky’s method of lethal injection is similar to execution procedures in three dozen states. The court will consider whether the mix of three drugs used to sedate and kill prisoners and the way they are administered have the potential to cause pain severe enough to violate the constitutional ban on cruel and unusual punishment.

Arguments in the case will take place early next year and a decision should come by late June.

Even in Texas, the nation’s leader in executions, prosecutors have decided to await the outcome of the Supreme Court case rather than ask judges to set execution dates and press forward through the courts.

“It seems the common-sense thing to do at this point,” said Roe Wilson, who handles death penalty appeals for the Harris County District Attorney’s Office in Houston. Harris County sends more inmates to death row than any other county in Texas.

Wilson said she plans to ask a judge to withdraw the Feb. 26 execution date for a man convicted of killing a woman and her 2-year-old son. Rather than facing a court-imposed halt to the execution, withdrawing the date will make it easier to go ahead with Derrick Sonnier’s execution once the Supreme Court says lethal injections may resume, she said.

Bell County District Attorney Henry Garza said he asked a judge to cancel a Jan. 24 execution for the same reason. “It just seemed to me that the writing was very apparent,” Garza said. “Now we’ll let them rule and we can come back in and act accordingly.”

In Texas, dates for executions are set by trial judges, typically at the request of local prosecutors. Twenty-six of the nation’s 42 executions this year have taken place in Texas. No other state has had more than three.

The only execution that has not been formally called off this year is in Florida, where Mark Dean Schwab is scheduled to die by lethal injection on Nov. 15. The Florida Supreme Court is considering a request to stop it.

On Tuesday, a federal judge in Arkansas called off convicted killer Don William Davis’ scheduled Nov. 8 execution, pending the challenge to lethal injections.

The Supreme Court’s order in the Berry case highlights what death penalty proponent Kent Scheidegger said are unreasonably long periods between the crime and punishment.

“It is a further delay in cases that are already much too long delayed,” said Scheidegger, legal director of the Criminal Justice Legal Foundation. Berry was convicted in 1988. His confession was used against him during the trial.

The decision brought an emotional response from about two dozen members of the victim’s family. “Now you want to tell me that we got a fair shake today?” said Charles Bounds, whose 56-year-old wife, Mary, was kidnapped from a church and killed by Berry in 1987.

“Please don’t ever let that man out of prison, ‘cause you’ll have me, then. … I’ll kill him,” Bounds said.

Berry asked for a delay at least until the court issues its decision in the Kentucky case. He claimed the mixture of deadly chemicals Mississippi uses would cause unnecessary pain, constituting cruel and unusual punishment.

The Supreme Court has allowed only one execution to go forward since agreeing to hear the Kentucky case, which it is likely to hear before its July recess. Michael Richard was executed in Texas on Sept. 25, the same day the court said it would hear the lethal injection challenge.