Today the Supreme Court rejected a claim by a death-row inmate that executing him by lethal injection would violate the Constitution’s ban on cruel and unusual punishment because of the likelihood that he could wind up choking on his own blood. By a vote of 5-4, the court cleared the way for Russell Bucklew’s execution, in an opinion that at times revealed bitter divides among the justices.
The case was not a broad challenge to the use of lethal injection as a method of execution for all prisoners. Instead, Bucklew argued that it would be unconstitutional to execute him by lethal injection because he suffers from a rare medical condition that has caused blood-filled tumors to grow in his neck and throat. Even if everything goes as planned, he told the justices, there is a real chance that execution by lethal injection will cause him agonizing pain, because the tumors could rupture and fill his mouth and airway with blood.
A federal appeals court turned down Bucklew’s request to block his execution. It concluded that Bucklew had not shown that using lethal gas, which he had suggested as an alternative method of execution, would significantly reduce the likelihood that he would suffer unnecessarily.
Bucklew went to the Supreme Court, which put his execution on hold in March of 2018, when Justice Anthony Kennedy was still on the court. But by the time the justices heard oral argument in Bucklew’s case last fall, Kennedy had retired and been replaced by Justice Brett Kavanaugh, who today joined the court’s other more conservative justices in rejecting Bucklew’s challenge to his execution.
In an opinion by Justice Neil Gorsuch, the majority began by explaining that the Eighth Amendment’s ban on cruel and unusual punishment “does not guarantee a prisoner a painless death—something that,” Gorsuch added, “of course, isn’t guaranteed to many people, including most victims of capital crimes.” Instead the Eighth Amendment prohibits states from adding unnecessary “terror, pain, or disgrace” to their executions.
When an inmate contends that a state’s method of execution violates the Eighth Amendment, Gorsuch continued, he must show that there is an alternative method of execution that would “significantly reduce a substantial risk of severe pain,” but that the state has – for no good reason – refused to adopt. This requirement applies, Gorsuch explained, even though Bucklew is only challenging the constitutionality of the state’s use of lethal injection to execute him, rather than the constitutionality of lethal injection more generally: Among other things, the Supreme Court’s earlier cases involving lethal injection indicate that all inmates challenging a method of execution must identify an available alternative. And more broadly, Gorsuch reasoned, “it would be strange for the same words of the Constitution to bear entirely different meanings depending only on how broad a remedy the plaintiff chooses to seek.”
And in any event, Gorsuch stressed, the requirement of showing an available alternative is not as difficult as Bucklew might suggest, because he is not limited to the methods of execution currently allowed in Missouri, where he was convicted. Instead, Gorsuch observed, he can also “point to a well-established protocol in another State as a potentially viable option.” Therefore, Gorsuch concluded, “we see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative—assuming, of course, that the inmate is more interested in avoiding unnecessary pain than in delaying his execution.”
In this case, Gorsuch outlined, Bucklew had made only a “bare-bones proposal” to use death by nitrogen gas, depriving the body of oxygen, as an alternative to lethal injection. In Gorsuch’s view, that proposal “falls well short” of showing that the alternative could be “readily implemented” because Bucklew had not offered any evidence on what Gorsuch deemed “essential questions”: “how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some other mixture of gases); how quickly and for how long it should be introduced; or how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks.” The state also had a good reason not to switch from lethal injection, Gorsuch pointed out: No state has ever used nitrogen gas to carry out an execution before.
The court’s opinion concluded by noting that Bucklew “committed his crimes more than two decades ago,” while his appeals and post-conviction challenges were completed over 10 years ago. “The people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them deserve better,” Gorsuch emphasized. “Under our Constitution,” Gorsuch continued, “the question of capital punishment belongs to the people and their representatives, not the courts, to resolve.” The courts’ role, Gorsuch suggested, is to make sure that challenges to a proposed method of execution “are resolved fairly and expeditiously.” To that end, Gorsuch stressed, last-minute stays “should be the extreme exception.” Citing the recent case of a Muslim death-row inmate who had wanted an imam to be at his side in the execution chamber, but who had “waited to bring an available claim until just 10 days before his scheduled execution for a murder he had committed 24 years” before, Gorsuch explained that the justices might deny requests for relief that could have been filed earlier.
Justice Clarence Thomas filed a concurring opinion in which he reiterated that, in his view, a method of execution only violates the Eighth Amendment’s ban on cruel and unusual punishment if it is “deliberately designed to inflict pain.”
Justice Brett Kavanaugh also filed a concurring opinion in which he repeated the majority’s point that an inmate can point to an alternative method of execution even if it is not currently legal in the state where he will be executed. This means, he continued, that “an inmate who contends that a particular method of execution is very likely to cause him severe pain should ordinarily be able to plead some alternative method of execution that would significantly reduce the risk of severe pain.” And although Kavanaugh took pains to make clear that he was not saying that a firing squad – which, he noted, Justice Sonia Sotomayor had described as a method of execution “that generally causes an immediate and certain death, with close to zero risk of a botched execution” – “would be a feasible and readily implemented alternative for every State,” he seemed to leave open the possibility that it would be.
Justice Stephen Breyer had the main dissent, which was joined in large part by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Breyer began by recounting, in vivid detail, Bucklew’s medical problems and the testimony of an anesthesiologist who served as an expert witness for Bucklew. Breyer concluded that, at the very least, the lower court should have held a trial on whether executing Bucklew by lethal injection would “subject him to several minutes of severe pain and suffering.”
Turning to the question of whether Bucklew was required to suggest an alternative method of execution, Breyer believed that he was not. The Supreme Court’s earlier lethal-injection cases, he reasoned, had required an alternative method to avoid back-door attacks on capital punishment more generally: The idea is that, if capital punishment is constitutional, there must be a method of execution that is constitutional, so an inmate can’t stave off execution simply by arguing that the method that the state plans to use to execute him is unconstitutional; instead, he has to offer an alternative. But here Bucklew is simply arguing that the use of lethal injection would be unconstitutional in his case, Breyer emphasized.
Even if Bucklew is required to offer an alternative method of execution, Breyer continued, he has done so: Missouri specifically allows the use of nitrogen in executions, as do three other states. Moreover, Breyer adds, two states – Oklahoma and Louisiana – have reports indicating that “nitrogen hypoxia would be simple and painless.” Referring to the majority’s complaint that Bucklew failed to provide some of the details about execution by nitrogen gas that the majority described as “essential questions” – for example, how the gas would be administered or how the execution team would be protected from leaks – Breyer retorted that the court’s prior lethal-injection cases “did not refer to any requirements.” Instead, he lamented, “today’s majority invents them. And to insist upon them is to create what, in a case like this one, would amount to an insurmountable hurdle for prisoners like Bucklew.”
In a final section not joined by the other dissenting justices, Breyer agreed with the majority that delays in capital cases “are excessive.” But he disagreed with the majority’s suggestion that the solution to the delays is “limiting constitutional protections for prisoners on death row.” Discussing the Muslim inmate executed in Alabama in February, Breyer countered that the inmate had filed his claim “only five days after he was notified of the policy he sought to challenge.” Breyer concluded that Bucklew’s case “adds to the mounting evidence that we can either have a death penalty that avoids excessive delays and arguably serves legitimate penological purposes, or we can have a death penalty that seeks reliability and fairness in the death penalty’s application and avoids the infliction of cruel and unusual punishments. It may well be that we cannot have both.”
Sotomayor echoed some of Breyer’s thoughts about delay in a separate dissent of her own, in which she chastised the majority for including the discussion of delay in its opinion at all: “The majority’s commentary on once and future stay applications is not only inessential,” she argued, “ but also wholly irrelevant to its resolution of any issue before us.” Sotomayor described herself as “especially troubled by the majority’s statement that ‘[l]ast-minute stays should be the extreme exception,’ which could be read to intimate that late-occurring stay requests from capital prisoners should be reviewed with an especially jaundiced eye. Were those comments to be mistaken for a new governing standard, they would effect a radical reinvention of established law and the judicial role.”
This post was also published on SCOTUSblog.
