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Return of the Patchwork Moratorium

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At first, I thought we had a "patchwork moratorium" on the death penalty, where some states would have stays pending Baze and some wouldn't. Then the nonstay decisions were all reversed, so I decided we didn't.

Well, now it looks like Mississippi is on track again. Earl Berry, scheduled for long overdue justice October 30 (he committed murder twenty years ago), has been denied a stay by both the Mississippi Supreme Court and the Fifth Circuit. The latter's opinion is here.

Unless the Fifth Circuit en banc intervenes, this case should require the Supreme Court to tell us if there is a nationwide moratorium or not. Lyle Denniston at SCOTUSblog has this post on Berry's cert. petition from the state court case. Here are the dockets for the stay application and petition for certiorari.

Memo to SCOTUS: whatever you do, please give us a reasoned explanation this time.

Update: Natalie Chandler has this story in Saturday's Jackson Clarion-Ledger. (Hat tip: How Appealing.) Berry's lawyers intend to file a stay application with the Supreme Court on Monday. (Technically, it goes to Justice Scalia as Circuit Justice for the Fifth, but he will refer it to the full court.) The article doesn't mention any en banc request.

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I think it is irresponsible that SCOTUS has not provided an explanation by now. The emotional and financial costs of all this post-Turner warrant litigation could be avoided if only SCOTUS would tell us what principle they are applying.

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