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Bucklew v. Precythe: The Supreme Court’s Tortured Death Penalty Jurisprudence

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17 Apr 2019
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April 17, 2019

Bucklew v. Precythe, 587 U.S. ___ (2019) (Gorsuch, J.).
Response by John D. Bessler
Geo. Wash. L. Rev. On the Docket (Oct. Term 2018)
Slip Opinion | SCOTUSblog

Bucklew v. Precythe: The Supreme Court’s Tortured Death Penalty Jurisprudence

In Bucklew v. Precythe,1 the U.S. Supreme Court rejected a death row inmate’s as-applied challenge to Missouri’s lethal injection protocol.2 The petitioner, Russell Bucklew, suffers from a rare medical condition—cavernous hemangioma—that causes tumors to form in his head, neck and throat.3 Bucklew had argued that, because of his medical condition, executing him by lethal injection would be excruciatingly painful.4 “Bucklew,” Justice Stephen Breyer wrote in his dissent, “cites evidence that executing him by lethal injection will cause the tumors that grow in his throat to rupture during his execution, causing him to sputter, choke, and suffocate on his own blood for up to several minutes before he dies.”5 After being required to identify a method other than lethal injection by which he could be put to death, Bucklew had proposed nitrogen gas as a substitute.6

In its 5–4 decision, the Supreme Court emphasized that it had agreed to hear Mr. Bucklew’s case “to clarify the legal standards that govern an as-applied Eighth Amendment challenge to a State’s method of carrying out a death sentence.”7 In its majority opinion, written by Justice Neil Gorsuch, the Court began by examining “the original and historical understanding of the Eighth Amendment” and its prior decisions in Baze v. Rees8 and Glossip v. Gross9 —cases upholding Kentucky and Oklahoma’s lethal injection protocols.10 The latter case, relying upon a plurality opinion in Baze,11 held, in another 5–4 decision, that an inmate cannot successfully challenge a method of execution unless he identifies an alternative method that is “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.”12 “[T]he Eighth Amendment,” Gorsuch concluded, reiterating Glossip’s holding, “does not guarantee a prisoner a painless death.”13

After declaring that “[t]he Constitution allows capital punishment,”14 Justice Gorsuch’s majority opinion pointed out that “death was ‘the standard penalty for all serious crimes’” at the country’s founding.15 “Consistent with the Constitution’s original understanding,” Gorsuch wrote, “this Court in Wilkerson v. Utah, 99 U.S. 130 (1879), permitted an execution by firing squad while observing that the Eighth Amendment forbade the gruesome methods of execution described by Blackstone ‘and all others in the same line of unnecessary cruelty.’”16 In his Commentaries on the Laws of England (1769), William Blackstone spoke of punishments in which “terror, pain, or disgrace [were] superadded” to the death penalty, listing such “[d]isgusting” practices as burning alive, disemboweling, dragging offenders to the place of execution, and quartering.17 “This Court has yet to hold that a State’s method of execution qualifies as cruel and unusual,” Justice Gorsuch wrote in Bucklew.18

Absent from Justice Gorsuch’s majority opinion, which found that “[a] minor reduction in risk” as regards the infliction of pain “is insufficient,”19 is any reference to the Supreme Court’s “evolving standards of decency” test. That test, created in 1958 in Trop v. Dulles,20 rejected an originalist conception of the Eighth Amendment in favor of a standard that looks to more contemporary evidence. For decades, the Court has used the “evolving standards” test to outlaw practices found to violate the Cruel and Unusual Punishments Clause. For example, the Court utilized that test to bar the execution of offenders with intellectual disabilities,21 to protect juveniles from execution22 and mandatory life without parole sentences,23 and to prohibit the execution of nonhomicidal offenders24 and the insane.25

Instead of applying the evolving standards of decency test, which allows punishment practices to be reevaluated over time, the majority in Bucklew was dismissive of the Eighth Amendment challenge before it. “Under our Constitution,” Justice Gorsuch wrote, “the question of capital punishment belongs to the people and their representatives, not the courts, to resolve.”26 Calling Bucklew’s argument “inconsistent with the original and historical understanding of the Eighth Amendment on which Baze and Glossip rest,”27 Gorsuch emphasized: “[W]hen it comes to determining whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment ‘superadds’ pain well beyond what’s needed to effectuate a death sentence.”28 Gorsuch found that Bucklew, as a matter of law, had failed to prove that nitrogen hypoxia was a readily available alternative.29

The majority opinion in Bucklew drew two dissents. Justice Breyer, joined by Justices Ginsburg, Sotomayor and Kagan, believed that Bucklew had established that an execution by lethal injection would subject him “to constitutionally impermissible suffering.”30 “I cannot reconcile the majority’s decision with a constitutional Amendment that forbids all ‘cruel and unusual punishments,’” Breyer wrote.31 Justice Sotomayor—in her own dissent—criticized the very idea that a death row inmate should be forced to identify and prove an alternative method of execution in order to make out a viable Eighth Amendment claim.32 “As I have maintained ever since the Court started down this wayward path in Glossip v. Gross,” Justice Sotomayor observed, “there is no sound basis in the Constitution for requiring condemned inmates to identify an available means for their own executions.”33

Justice Gorsuch’s majority opinion in Bucklew offers a torturous, unprincipled reading of the Eighth Amendment. First, in adopting an originalist approach, it ignores the fact that the time period to which that theory of constitutional interpretation predominantly looks—the eighteenth-century—was all about progress and the future. In fact, Justice Gorsuch neglects to mention that Blackstone—the historical figure invoked in Bucklew—had great admiration for the ideas of the Enlightenment thinker Cesare Beccaria, a pioneering anti–death penalty advocate.34 Second, while Bucklew turned aside a challenge to the death penalty’s use, quickly setting the stage for the lifting of yet another death row inmate’s stay of execution,35 the American penal system has already abandoned nonlethal corporal punishments.36

Third, forcing a death row inmate to identify an alternative method of execution turns the adversarial system upside down. A death row inmate’s lawyer—someone tasked with trying to save that inmate’s life—should not be expected to advocate for a way in which that client can be executed. And finally, the Bucklew decision, along with the Supreme Court’s earlier decisions in Baze and Glossip, totally ignores the psychological torture associated with capital punishment.37 An immutable characteristic of death sentences is that they involve the use of credible death threats. If mock, or simulated, executions are already prohibited by law as torturous acts (as they are), then real executions should be prohibited by law, too.38

The Eighth Amendment’s wording was derived from the English Bill of Rights (1689), a product of the Glorious Revolution of 1688–1689.39 Ironically, England—from which that language originates—abolished capital punishment decades ago.40 In yet another irony, in late nineteenth-century challenges to the firing squad and electrocution, both of which were unsuccessful, the Eighth Amendment itself was explicitly held to prohibit torture.41 Although the concept of torture was then thought to focus on torment to the body, it is now clear—as the U.N. Convention Against Torture makes plain—that torture can be either physical or psychological in nature.42 If the Court were to finally consider the modern definition of torture, which includes not just physically excruciating punishments but the infliction of severe mental pain or suffering, the death penalty—a highly arbitrary and discriminatory practice43 —would be declared unconstitutional as a cruel and unusual, indeed torturous, punishment.44

John D. Bessler is an Associate Professor at the University of Baltimore School of Law and an Adjunct Professor at the Georgetown University Law Center. He has also taught at the University of Minnesota Law School, the George Washington University Law School, Rutgers Law School, and the University of Aberdeen in Scotland. He is the author of multiple books on capital punishment, the Italian criminal-law theorist Cesare Beccaria, and the origins of American law. His books include Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment (2012), The Birth of American Law: An Italian Philosopher and the American Revolution (2014), The Death Penalty as Torture: From the Dark Ages to Abolition (2017), The Celebrated Marquis: An Italian Noble and the Making of the Modern World (2018), and The Baron and the Marquis: Liberty, Tyranny, and the Enlightenment Maxim that Can Remake American Criminal Justice (2019). He is also the editor of Justice Stephen Breyer’s Against the Death Penalty (2016), which reprints and contextualizes Justice Breyer’s dissent in Glossip v. Gross.

    1. No. 17-8151 (U.S. Apr. 1, 2019).
    2. See id. at 4–5, 8, 14–16.
    3. Id. at 5.
    4. Id. at 3 (Breyer, J., dissenting).
    5. Id. at 1.
    6. Id. at 6–7 (majority opinion).
    7. Id. at 8.
    8. 553 U.S. 35 (2008).
    9. 135 S. Ct. 2726 (2015).
    10. Bucklew, slip op. at 8.
    11. Id. at 5–6.
    12. Id. at 5–6 (quoting Glossip, 135 S. Ct. at 2737).
    13. Bucklew, slip op. at 12.
    14. Id. at 8.
    15. Id. (quoting Stuart Banner, The Death Penalty: An American History 23 (2002)).
    16. Id. at 10.
    17. Id. at 9 (quoting 4 William Blackstone, Commentaries On The Laws Of England 370 (1769)).
    18. Id. at 12.
    19. Id. at 23-28.
    20. 356 U.S. 86, 101 (1958).
    21. See Hall v. Florida, 572 U.S. 701, 708 (2014); Atkins v. Virginia, 536 U.S. 304, 311–12 (2002); see also Moore v. Texas, 137 S. Ct. 1039, 1048 (2017) (citing the “evolving standards” test).
    22. See Roper v. Simmons, 543 U.S. 551, 561 (2005).
    23. See Miller v. Alabama, 567 U.S. 460, 469 (2012); see also Graham v. Florida, 560 U.S. 48, 58 (2010) (invoking the “evolving standards” test in holding that the Eighth Amendment prohibits imposition of life without parole sentences on nonhomicidal juvenile offenders).
    24. See Kennedy v. Louisiana, 554 U.S. 407, 419–20 (2008).
    25. See Ford v. Wainwright, 477 U.S. 399, 406 (1986).
    26. Bucklew, slip. op. at 29.
    27. Id. at 16.
    28. Id.
    29. See id. at 17, 23.
    30. Id. at 1 (Breyer, J., dissenting). See id. at 2 (“Bucklew has easily established a genuine issue of material fact regarding whether an execution by lethal injection would subject him to impermissible suffering.”); id. at 5 (concluding that executing Bucklew in a manner that would cause him to “suffocate on his blood” would “exceed ‘the limits of civilized standards’”).
    31. Id. at 14–15. As Justice Breyer wrote in his dissent: “We have repeatedly held that the Eighth Amendment is not a static prohibition that proscribes the same things that it proscribed in the 18th century. Rather, it forbids punishments that would be considered cruel and unusual today.” Id. at 15.
    32. See id. at 1 (Sotomayor, J., dissenting).
    33. Id.
    34. Cesare Beccaria had a substantial and material influence on America’s founders. See John D. Bessler, The Baron And The Marquis: Liberty, Tyranny, and the Enlightenment Maxim That Can Remake American Criminal Justice (2019) (detailing the influence of Montesquieu and Beccaria on America’s founders). See generally John D. Bessler, The Celebrated Marquis: An Italian Noble and the Making of the Modern World (2018); John D. Bessler, The Birth of American Law: An Italian Philosopher and the American Revolution (2014).
    35. See Ariane de Vogue, Bitterly Divided Supreme Court Says the Execution of Alabama Inmate Can Go Forward Hours After It Was Called Off, CNN (Apr. 12, 2019),
      https://www.cnn.com/2019/04/12/politics/christopher-lee-price-execution-supreme-court/index.html (“The Supreme Court said early Friday that the execution of Alabama death row inmate Christopher Lee Price can go forward in the fourth major death penalty case this year that has justices feuding openly . . . . Justice Stephen Breyer, joined by the three other liberal justices on the high court, penned a furious dissent, released at 2:51 AM, ET.”).
    36. See generally John D. Bessler, The Anomaly of Executions: The Cruel and Unusual Punishments Clause in the 21st Century, 2 Brit. J. Am. Leg. Stud. 297 (2013); John D. Bessler, Tinkering Around the Edges: The Supreme Court’s Death Penalty Jurisprudence, 49 Am. Crim. L. Rev. 1913 (2012).
    37. See generally John D. Bessler, The Death Penalty as Torture: From the Dark Ages to Abolition (2017).
    38. See generally John D. Bessler, Taking Psychological Torture Seriously: The Torturous Nature of Credible Death Threats and the Collateral Consequences for Capital Punishment, 11 Ne. U. L. Rev. 1 (2019).
    39. See generally John D. Bessler, A Century in the Making: The Glorious Revolution, the American Revolution, and the Origins of the U.S. Constitution’s Eighth Amendment, Wm. & Mary Bill of Rts. J. (forthcoming 2019).
    40. See William A. Schabas, The European Convention on Human Rights: A Commentary 1095 (2015) (“The last executions in the United Kingdom took place in 1964.”).
    41. See In re Kemmler, 136 U.S. 436, 447 (1890) (“Punishments are cruel when they involve torture or a lingering death . . . .”); Wilkerson v. Utah, 90 U.S. 130, 136 (1879) (“[P]unishments of torture . . .are forbidden . . . .”).
    42. See generally, John D. Bessler, The Abolitionist Movement Comes of Age: From Capital Punishment as a Lawful Sanction to a Peremptory, International Law Norm Barring Executions, 79 Mont. L. Rev. 7 (2018).
    43. See generally, e.g., John D. Bessler, The Inequality of America’s Death Penalty: A Crossroads for Capital Punishment at the Intersection of the Eighth and Fourteenth Amendments, 73 Wash. & Lee L. Rev. Online 487 (2016); John D. Bessler, What I Think About When I Think About the Death Penalty, 62 St. Louis U. L.J. 781 (2018).
    44. See generally John D. Bessler, Torture and Trauma: Why the Death Penalty Is Wrong and Should Be Strictly Prohibited by American and International Law, 58 Washburn L.J. 1 (2019); John D. Bessler, The Concept of “Unusual Punishments” in Anglo-American Law: The Death Penalty as Arbitrary, Discriminatory, and Cruel and Unusual, 13 Nw. J.L. & Soc. Pol’y 307 (2018); John McCain, There Can Be No Justification for Torture, Medium (Nov. 15, 2017), https://medium.com/@SenatorJohnMcCain/there-can-be-no-justification-for-torture-2f2e2307ccb1 (describing a “mock execution” as “an exquisite form of torture in which the victim suffers the terrible sensation of drowning”).

Recommended Citation
John D. Bessler, Response, Bucklew v. Precythe: The Supreme Court’s Tortured Death Penalty Jurisprudence, Geo. Wash. L. Rev. On the Docket (Apr. 17, 2019), https://www.gwlr.org/bucklew-v-precythe-the-supreme-courts-tortured-death-penalty-jurisprudence/.

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