DALLAS (Reuters) - It’s not official, but a “creeping moratorium” on the death penalty in the United States is taking hold as the Supreme Court prepares to hear a challenge to the method of lethal injection.
The latest inmate to win a reprieve was Earl Wesley Berry of Mississippi, whose execution was stayed on Tuesday by the U.S. Supreme Court just 19 minutes before he was scheduled to die. He had already eaten his “last meal.”
Support for the death penalty remains strong in the United States, one of only a handful of democracies that still carries out capital punishment.
But the unofficial hold on executions comes amid a steep decline in the number of death sentences imposed and rising concern about wrongful convictions.
“All of this suggests that the death penalty is under a significant review in a way that we haven’t had in almost four decades,” said Jordan Steiker of the University of Texas at Austin School of Law.
October 2007 was the first October since 1989 without a U.S. execution and the first month without one since December 2004; December is a typically quiet month in the death chambers because of a reluctance to execute near Christmas.
If the “moratorium” holds until at least the end of this year, America will have executed 42 inmates in 2007, the lowest number since 1994, when 31 were put to death. If it doesn’t hold, the execution rate is still seen slowing to a trickle.
Around a dozen condemned prisoners have been granted stays since the Supreme Court announced on September 25 that it would decide an appeal by two death row inmates from Kentucky arguing that the three-chemical cocktail used in lethal injections inflicted unnecessary pain and suffering.
One convicted killer was executed in Texas hours later, but legal observers said his case slipped through partly because of the timing of the announcement.
The top U.S. court itself subsequently postponed an execution in Texas, the most active death penalty state by far with 405 since 1982. Two other stays have since been granted in Texas by state courts.
Judges or governors in Alabama, Georgia, Virginia, Nevada, Arkansas and Arizona have also granted stays. Oklahoma’s attorney general last month asked the State Court of Criminal Appeals not to set any more execution dates until the U.S. high court rules on the Kentucky challenge.
All of the stays were directly related to the U.S. Supreme Court’s review. It is not expected make a ruling before June.
Since it is the three-drug mixture used in lethal injection that is being challenged and not the practice itself, states could in theory come up with an alternative cocktail or method — but experts believe that is unlikely.
Enthusiasm for the death penalty appears to be fading, partly because the option of imposing life without parole has become more widely available to juries in recent years.
Lethal injection has come under increased scrutiny after executions in Florida and California in which inmates took up to 30 minutes to die. All but one of the 37 states with the death penalty and the federal government use lethal injection for executions.
The number of death sentences imposed in 2005 — the last year for which there is complete data — was 128, way down from 317 in 1996.
“In states which are more ambivalent about the death penalty I think you will see this de facto moratorium become a permanent one,” said Sarah Tofte, a researcher with the U.S. program at Human Rights Watch.
One of the main concerns is wrongful convictions. No U.S. court has found that anyone has been executed in the past three decades for a crime he did not commit, but DNA and other evidence has exonerated dozens of inmates who were awaiting execution on death row.
The American Bar Association said this week it was renewing its call for a nationwide moratorium on executions, based on a three-year study of death penalty systems in eight states that found unfairness and other flaws.
The study identified concerns such as racial disparities and shoddy defense services for lower-income defendants.
Supporters of capital punishment often argue that the lengthy appeals process — inmates spend an average of over a decade on death row before they are executed — and the exonerations themselves highlight the fairness of a system that they say gives justice to victims.