by James Oliphant

Ever since the Supreme Court decided to rule on the legality of the method that most states used to execute prisoners, the question has been whether states would halt their scheduled executions to await the court’s decision.

An increasing number of federal and state judges appear to be doing just that, although it hasn’t been uniform. This week, a panel of the U.S. Court of Appeals in Atlanta stopped the execution of an Alabama man so the entire complement of judges on the court can take up the issue of whether to allow it to proceed.

In September, the Supreme Court agreed to hear a Kentucky action that argues the three-drug cocktail used in lethal injection is unconstitutional because it causes unnecessary pain and suffering before death, in violation of the Eighth Amendment. Since then, several judges have interpreted the move as imposing a de facto moratorium on executions, although the court never issued such an order. However, the court did block the scheduled execution of a Virginia man, Christopher Scott Emmett, Oct. 17, pending disposition of his lethal injection challenge in the federal appeals court in Richmond.

Texas, Georgia, and Nevada have stated that they will not execute inmates until the case is decided. Mississippi, though, has gone the other way. Its state Supreme Court this week declined to stop the execution of Earl Wesley Berry. Lawyers for Berry have since asked the U.S. Supreme Court to intervene.

More than 35 states use a similar mix of three chemicals for executions, which involve drugs to block pain, paralyze the respiratory system and then finally induce cardiac arrest. (The third chemical is common road salt, used to melt ice.) The issue is whether that procedure causes enough pain and suffering to constitute "cruel and unusual punishment," which is barred by the 8th Amendment.

Lawyers for the petitioners in the case before the Supreme Court—two Kentucky prisoners on Death Row—argue that alternative methods exist that would produce less suffering, specifically suggesting that the current use of a nerve-paralyzing agent to force suffocation is unnecessary and can be excruciatingly painful. The court hasn't decided whether a particular method of execution is unlawful since 1878.