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States likely to delay executions until ruling

The US Supreme Court's stay of an execution Tuesday signals a moratorium on lethal injections until it decides a key case.

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When the US Supreme Court agreed in late September to take up a Kentucky case testing the constitutionality of the protocol used for executions by lethal injection, the action raised an immediate question.

What about other death row inmates slated for execution; should their scheduled executions be postponed pending a final decision by the high court?

It took more than a month of confusing signals, but the Supreme Court appears to have finally answered that question when it granted a last-minute stay of execution Tuesday evening for a Mississippi death row inmate.

Legal analysts say the action makes it highly unlikely that there will be any executions by lethal injection in the US until after the high court hands down its decision in the Kentucky case.

"I wouldn't place any wagers on any [scheduled executions] being carried out," says Kent Scheidegger, who closely follows death penalty issues at the Criminal Justice Legal Foundation in Sacramento, Calif. He says stays of execution will most likely be issued by state and federal judges and that those stays will not be disturbed by the high court.

"There may be a couple of skirmishes, but the main war is over," says Richard Dieter of the Death Penalty Information Center in Washington, D.C. "This is the clearest indication that there is pretty much a de facto moratorium on executions until the Supreme Court decides this [lethal injection] issue."

The Kentucky case, Baze v. Rees, is expected to be heard by the justices in January or February. The Supreme Court will issue a decision by late June.

Of more than three dozen death penalty states, all but one use lethal injection as the preferred method of execution. Most employ the same three-drug protocol at issue in the Kentucky case.

The justices have agreed to clarify when a lethal injection execution might amount to a form of cruel and unusual punishment because of a risk of pain associated with the procedure. The question is how much pain is too much pain under the Eighth Amendment.

"The law applied by lower courts is a haphazard flux ranging from requiring 'wanton infliction of pain,' 'excessive pain,' 'unnecessary pain,' 'substantial risk,' 'unnecessary risk,' 'substantial risk of wanton and unnecessary pain,' and numerous other ways of describing when a method of execution is cruel and unusual," writes David Barron, a lawyer for death row inmate Ralph Baze in his brief to the court.

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