State argues lethal injection method is constitutional

Published 4:32 pm Friday, May 2, 2008

Mississippi’s method of lethal injection is “substantially similar” to a protocol affirmed by the U.S. Supreme Court and the state should move forward with an execution, the attorney general’s office argued Thursday in court papers.

Mississippi Attorney General Jim Hood has requested that Earl Wesley Berry be executed Monday for the 1987 murder of Mary Bounds. If that date is approved, Berry would be the first condemned prisoner in the United States to die by lethal injection since September. That’s when the U.S. Supreme Court agreed to consider arguments by two Kentucky inmates that the three-drug procedure is unconstitutional.

The Kentucky inmates argued that if the first drug, which renders the person unconscious, doesn’t take effect, the other two drugs will cause pain but the paralyzed prisoner won’t be able to express discomfort. The court rejected the argument April 16 and said the method is acceptable.

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Berry’s attorneys have asked the Mississippi Supreme Court to block the execution, saying the state’s method is different.

“Mississippi’s lethal injection creates a substantial risk of serious harm in violation of the Eighth Amendment because there are no safeguards such as those that Kentucky has in place,” Berry’s attorneys argued in court papers filed Wednesday.

The attorney general’s office on Thursday filed a 105-page response.

“The state would assert that the protocol and practice and procedures used in conducting an execution in Mississippi are substantially similar to those found in Kentucky,” Hood’s office argued.

The Mississippi court has not ruled on the motions.

Hood’s argument tracked a ruling by a federal judge who found Georgia’s method of execution substantially similar to Kentucky’s. Georgia is set to execute a man on Tuesday.

Hood said also submitted an affidavit by Lawrence Kelly, superintendent of the State Penitentiary at Parchman, the prison where executions take place. Kelly said he has overseen two executions by lethal injection in Mississippi.

“During those executions I witnessed no movement from either individual following the administration of the sodium pentothal,” he said in the affidavit.

Hood said if the state Supreme Court feels that three grams of the drug is more appropriate than two grams, the court can order the dosage increased when it sets the execution date.

Hood also rejected arguments that those administering the drugs in Mississippi aren’t qualified to do so. He said there are primary and alternate “certified” paramedics who prepare the drugs.

Hood challenged Berry’s attorneys’ claims that the death row inmate is mentally disabled.

“Testifying during the sentencing phase of the original trial, Dr. Charlton Stanley, a forensic psychologist, testified that Berry had an IQ of 83, which classified him in the dull normal range of intellectual function,” Hood said.

“Though Dr. Stanley testified that he suffered from organic brain damage, he testified that Berry was not mentally retarded.”

Jim Craig, Berry’s attorney, has said Berry has “had test scores both above and below the cut-off line for mental retardation.”

“We have a very reputable psychiatrist … who says he should be considered to be mentally retarded,” Craig said.

Berry was convicted of kidnapping Bounds outside the First Baptist Church in the north Mississippi town of Houston after she attended choir practice on Nov. 29, 1987. He beat her to death before dumping her body in the woods. His confession was used against him at trial.