In a fresh sign that the use of lethal injection in capital punishment faces an uncertain future, the Supreme Court issued an unusual last-minute reprieve for a death-row inmate in Texas late last night.
Although the court gave no reason for its decision, the inmate, Carlton Turner Jr., had appealed to the court after it agreed on Tuesday to consider the constitutionality of lethal injection, the most commonly used method of execution in the United States. The decision suggests that until it issues a ruling on lethal injection, the court may be receptive to requests to delay such executions, at least for defendants whose cases raise no procedural issues.
“It’s an indication that the court believes there are real questions about what states are doing in this area,” said Bryan Stevenson, executive director of the Equal Justice Initiative of Alabama, which opposes executions. “What this signals is that the burden is now shifting to the states to do something about all these problems folks have been talking about.”
The vote on the stay of execution was not announced, but at least five justices needed to support it.
Earlier in the day, another rare stay of an execution came in Alabama, where Gov. Bob Riley said the state would not execute an inmate named Tommy Arthur while it came up with a new formula for lethal injection. State officials said they wanted to make sure prisoners were completely unconscious before they were killed.
The full effect of the Supreme Court’s decision is not yet known, but it may interrupt what appears to be emerging as a patchwork, state-by-state response to its decision Tuesday to look at whether lethal injection causes unnecessary suffering.
Some states, even ardent pro-death penalty ones like Alabama, are slowing down. Others, like Texas, had been cruising at full speed; the state executed a prisoner a few hours after the court’s decision on Tuesday and was planning to proceed with its 27th execution of the year last night when the Court intervened. Eleven states have stopped lethal injections altogether, as litigation proceeds.
“It’s going to be a hodgepodge,” said George Kendall, a veteran civil rights lawyer in New York. “Some states will shut down, and in some it will be business as usual.”
All week, Texas officials had maintained that nothing had changed and that executions could proceed. Mr. Turner, 28, of Dallas, was convicted of having fatally shot his adoptive parents in 1998. Another execution is scheduled in the state next week.
Steve Hall, executive director of the StandDown Texas Project, which advocates a moratorium on executions pending a state study, said Tuesday’s execution might have come too soon after the high court’s decision to review lethal injection for the justices to want to intervene in that case. Mr. Hall said he would welcome a stay of all other executions until the court rules on the constitutionality of lethal injection.
The Supreme Court’s decisions this week seemed certain to at least slow the pace, particularly in Southern states. Death penalty lawyers in North Carolina and Virginia, for instance, are already asking for delays both in executions and the development of new procedures for them.
“I think it will hold up quite a few executions,” said Richard C. Dieter of the Death Penalty Information Center, a nonprofit group opposed to capital punishment.
In Alabama, where politicians rarely challenge the death penalty, the state is developing a “consciousness awareness test” for inmates being executed, but state officials maintained that the action was unconnected to the Supreme Court decision.
“Somebody would come in and do something to assess consciousness, after the anesthesia is delivered,” Assistant Attorney General Clay Crenshaw said. For now, he said, "the consciousness-awareness is being done visually by the warden.”
In a separate case next week, a federal judge in Alabama will hear arguments from two death-row inmates that lethal injection is unconstitutional.
Jeff Emerson, a spokesman for Governor Riley, said the change in injection procedures was not related to that case but to a federal judge’s ruling in Tennessee last week that lethal injection in that state “presents a substantial risk of unnecessary pain,” and could “result in a terrifying, excruciating death.”
The judge halted a scheduled execution in Tennessee. Mr. Emerson said Alabama’s execution procedure was similar to Tennessee’s, and thus needed to be altered.
The cases set to be heard next week in Alabama, filed by two death row inmates, Willie McNair and James Callahan, are similar to the Kentucky case that led to the Supreme Court decision. They argue that the condemned prisoner could suffer during the execution because of improper administration of the chemicals.