Case No. 17-8151 | 8th Cir.
Preview by Mike Fischer
In March 1996, Russell Bucklew embarked on a brutal crime spree which ultimately landed him on death row in Missouri. Shortly after his girlfriend left him for another man, Bucklew broke into the trailer where she was staying and shot the man whom she recently started dating. He then kidnapped his ex-girlfriend using a stolen vehicle, driving over 100 miles from the crime scene before beating and raping her. Following a car chase and subsequent shootout which wounded a state trooper, Bucklew was apprehended by police. Michael Sanders, the man Bucklew shot at the trailer, died of blood loss from the gunshot wounds. Bucklew was convicted of murder, kidnapping, and rape, and was sentenced to death by lethal injection.
On appeal, the petitioner contends that Missouri’s lethal injection protocol, as applied to him, would violate the Eighth Amendment’s ban on cruel and unusual punishment. The petitioner suffers from a unique congenital medical condition known as cavernous hemangioma, which causes blood vessels in acute regions to dilate and potentially weaken. According to the petitioner, because his condition is particularly pronounced near his mouth, lethal injection would likely cause hemorrhaging in his airway and result in excruciating pain. He further contends that execution by lethal gas, which is still authorized in Missouri, would be a more humane method of execution. The U.S. Court of Appeals for the Eighth Circuit rejected the petitioner’s challenge to the constitutionality of his execution. The petitioner appealed to the Supreme Court, which delayed his execution and granted certiorari.
The issues before the Court primarily concern whether the petitioner satisfied the criteria for Eighth Amendment method-of-execution challenges set forth in Glossip v. Gross, 135 S. Ct. 2726 (2015), including: (1) “[w]hether, in asserting an as-applied challenge to Missouri’s method of execution, Bucklew must prove a known and available, readily feasible alternative method of execution”; (2) “[w]hether Bucklew met his burden of creating a genuine dispute of material fact . . . when he failed to identify an alternative method of execution with any specificity, proposed an untested alternative that has never been used, . . . and failed to rebut the State’s evidence that” its method will not cause him to suffer; and (3) “[w]hether petitioner met his burden . . . to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State’s method of execution.” Brief of Respondents at i, Bucklew v. Precythe, No. 17-8151 (U.S. filed Aug. 15, 2018). Additionally, the Court will decide whether a court evaluating an as-applied challenge to a state’s execution based on an inmate’s rare and severe medical condition “should assume that an execution will go as intended.” Brief for Petitioner at 25, Bucklew v. Precythe, No. 17-8151 (U.S. filed July 16, 2018).
The petitioner argues that the known-and-available alternatives requirement set forth in Glossip should not be adopted in cases of as-applied challenges based on an inmate’s unique medical condition because “Missouri will remain free to use its standard injection protocol with other inmates . . . [a]nd Bucklew’s unique condition provides a straightforward predicate for evaluating the cruelty of his anticipated execution.” Id. at 36. He further argues that he met his evidentiary burden of creating a genuine dispute of material fact because the respondents “did not contest the availability and feasibility of [the petitioner’s proposed] alternative method of execution. Id. at 51. Finally, the petitioner asserts that lethal gas execution “will substantially reduce the risk of suffering he faces” from lethal injection, and that courts are required to “[c]onsider [t]he [o]bjectively [k]nown [r]isks” posed by an execution method for someone “[w]ith [a] [p]articular [m]edical [c]ondition.” Id. at 25.
The respondents contend that the alternative, feasible, readily available method of execution requirement is a “‘substantive element[]’ of all [method-of-execution] claims,” and that eliminating it “would encourage meritless claims that could impose additional years of delay before many executions.” Brief of Respondents at 23, 47, Bucklew v. Precythe, No. 17-8151 (U.S. filed Aug. 15, 2018) (quoting Glossip, 135 S. Ct. at 2739). According to the respondents, the petitioner failed to satisfy this element because he “has never identified any known and available ‘method’ or ‘procedure’ of execution by nitrogen gas.” Id. at 25. Additionally, the respondents assert that the petitioner failed to demonstrate that lethal injection will result in severe pain, and that “isolated mishaps, such as failed attempts to access [the petitioner’s] veins, . . . do[] not violate the Eighth Amendment.” Id. at 23.
Bucklew will serve as an early barometer for the course of Supreme Court death-penalty jurisprudence following the confirmation of Brett Kavanaugh. Justice Kennedy, who originally voted with the 5–4 majority to stay Bucklew’s execution, acted as the swing vote on many capital punishment cases.