Supreme Court: Execution Goes Ahead Despite Pain

April 1, 2019 Updated: April 1, 2019

WASHINGTON—A divided Supreme Court rejected a request from a condemned man in Missouri with a rare and painful medical condition to be gassed to death with nitrogen, instead of injected with lethal drugs, finding that even in his medical circumstances, lethal injection doesn’t violate the Eighth Amendment’s ban on cruel and unusual punishment.

The vote in the case, Bucklew v. Precythe, was 5 to 4 to reject convicted murderer Russell Bucklew’s claim. Justice Neil Gorsuch wrote the majority opinion, which is drawn so narrowly that it may have little impact on pending death penalty litigation. Justices Stephen Breyer and Sonia Sotomayor wrote separate dissenting opinions.

The case was brought by Bucklew, 50, his third method-of-execution challenge, coming on appeal from the Eighth Circuit Court of Appeals. In 1998, Bucklew was sentenced to die after being convicted of first-degree murder, kidnapping, and rape, among other crimes. In this appeal Bucklew didn’t contest the death sentence he received, nor did he argue that such punishment itself was unconstitutional.

Instead, Bucklew asked to be executed by inhaling nitrogen until hypoxia sets in, causing his death. The high court had previously found when there is “an alternative method of execution that is untried and untested, that no state has ever used, that no study supports showing its efficacy, [it] is not an alternative that’s reasonable.”

Death-by-nitrogen-gas is just such an unproven method of execution; it’s never been used by any state.

Bucklew asked for the unusual means of execution because he suffers from cavernous hemangioma, a very rare, progressive, incurable condition in which inoperable, blood-engorged tumors grow within his throat and around his face, head, and neck. The tumors are sensitive to touch and can rupture and tear. Minor friction can cause them to bleed. He has a tumor around his uvula at the back of his mouth that causes him to choke, bleed, and have difficulty breathing.

Bucklew claimed that lying face-up on a gurney to receive a lethal injection would aggravate these problems. He argued that because he also has compromised veins in his hands and arms that can’t be used efficaciously for lethal injection, the lethal-injection process itself would cause him intense, unnecessary pain, and is therefore barred by the Eighth Amendment.

Gorsuch rejected Bucklew’s arguments, noting that the Eighth Amendment to the U.S. Constitution forbids “cruel and unusual” means of execution, but doesn’t guarantee the condemned person a painless death.

The Eighth Amendment, according to Gorsuch, was originally understood not to forbid potentially painful methods of execution like hanging while, at the same time, prohibiting as cruel only those methods that intensified the death sentence by “superadding” terror, pain, or disgrace. To show that something “superadds” to the sentence, the condemned has to demonstrate that there is a feasible and easily carried out alternative method that would significantly reduce a substantial risk of severe pain and that the state has failed to employ it without providing a legitimate penological justification.

Previous case law established that the Constitution provides a “measure of deference to a State’s choice of execution procedures” and does not authorize courts to serve as “boards of inquiry charged with determining ‘best practices’ for executions,” Gorsuch noted. Nor are traditionally accepted methods of execution necessarily rendered unconstitutional the moment an arguably more humane method becomes available.

Bucklew used the judicial system to orchestrate delay after delay, exhausting “his appeal and separate state and federal habeas challenges more than a decade ago,” and repeatedly filing lawsuits, including the current one, days before he was to be executed, Gorsuch wrote. The current suit has dragged on for five years and resulted in two appeals to the Eighth Circuit, and two last-minute stays of execution.

“And despite all this, his suit, in the end, amounts to little more than an attack on settled precedent, lacking enough evidence even to survive summary judgment—and on not just one but many essential legal elements set forth in our case law and required by the Constitution’s original meaning.”

“Both the State and the victims of crime have an important interest in the timely enforcement of a sentence,” and “[t]hose interests have been frustrated in this case” by Bucklew, who “committed his crimes more than two decades ago.”

“The people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them deserve better,” Gorsuch wrote.

 

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