If the U.S. Supreme Court’s decision yesterday to spare the life of one Earl Wesley Berry means anything, it’s that trial and appellate courts across the nation shouldn’t bother setting execution dates or affirming death sentences for awhile. Last week, the Mississippi death row inmate made an 11th hour appeal to 5th U.S. Circuit of Appeals, asking for a emergency stay of execution, because the high court is considering Baze v. Rees to determine whether lethal injection is cruel and unusual punishment. Berry had exhausted all of his appellate routes and had little left to stop his execution other than the last minute Baze v. Rees appeal. Seemingly annoyed in its per curiam opinion in Berry v. Epps, the 5th Circuit denied Berry’s request, telling him he’d filed too late. The Supreme Court didn’t say why it was granting Berry a stay. But it doesn't have to. A majority of the Supreme Court justices are saying that they don’t care if the devil himself has a pending execution (although Justices Antonin Scalia and Samuel Alito say in the brief order they oppose Berry’s stay), they aren’t going to allow another one until Baze v. Rees is decided.
-- John Council