Gaming The Capital Punishment System—Bucklew v. Precythe

STEPHANIE ROBIN—On April 1, 2019, the Supreme Court, in a 5–4 decision, ruled against a Missouri death row inmate who claimed that due to a rare disease, the lethal injection would cause him “severe pain and suffering.”

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In Bucklew v. Precythe, Russell Bucklew, a convicted murderer sentenced to death, claimed that his Eighth Amendment rights would be violated by the State’s lethal injection protocol because it “would cause him severe pain because of his particular medical condition.” The State of Missouri uses a single drug, pentobarbital, to execute its death row inmates. Mr. Bucklew claimed that pentobarbital would cause him severe pain and requested that the state use nitrogen hypoxia instead. Mr. Bucklew was diagnosed with cavernous hemangioma which, according to the Complaint, would “prevent the pentobarbital from circulating properly in his body.” He claimed that nitrogen hypoxia would be a less painful way to die. However, a majority of the Supreme Court did not find Mr. Bucklew’s reasoning evidentially compelling.

The Cruel and Unusual Punishment Test—Baze v. Rees and Glossip v. Gross

In its ruling, the Supreme Court relied on two prior Supreme Court cases: Baze v. Rees and Glossip v. Gross.  In Baze v. Rees, the Court, in a plurality decision, concluded that “ a State’s refusal to alter its execution protocol could violate the Eighth Amendment only if an inmate first identified a ‘feasible, readily implemented’ alternative procedure that would ‘significantly reduce a substantial risk of severe pain.’” The Court in Glossip v. Gross,  found its earlier Baze opinion to be controlling. In the present case, the Court referred to the standard set forth in Baze and later followed in Glossip as the “Baze-Glossip test,” which it then went on to apply and used to conclude that Bucklew did not meet. In Baze, Chief Justice Roberts wrote that, “as originally understood, the Eighth Amendment tolerated methods of execution, like hanging, that involved a significant risk of pain, while forbidding as cruel only those methods that intensified the death sentence by ‘superadding’ terror, pain or disgrace.’” He said in order to prove that a State’s death penalty method ‘superadds’ pain to the death sentence, the prisoner must show “a feasible and readily implemented alternative method that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.”  The Constitution’s Eighth Amendment prohibits the use of “cruel and unusual” methods of capital punishment, but “does not guarantee a prisoner a painless death.”

Using the reasoning of these cases, Justice Gorsuch, who delivered the majority opinion of the Court in Bucklew, said that Mr. Bucklew failed to satisfy the Baze-Gossip test for two independent reasons and therefore failed to provide a triable question as to the feasibility of nitrogen hypoxia as an alternative to pentobarbital. First, he wrote, Mr. Bucklew showed no evidence on “numerous questions essential to implementing his preferred method; instead he merely pointed to reports from correctional authorities in other States indicating the need for additional study to develop a nitrogen hypoxia protocol.” Second, Mr. Bucklew failed to show that nitrogen hypoxia would “significantly reduce a substantial risk of severe pain” to Mr. Bucklew.

There were two dissenting opinions; one written by Justice Breyer and joined by Justice Ginsburg, Justice Sotomayor, and Justice Kagan, and the second written by Justice Sotomayor. In his dissent, Justice Breyer said that Bucklew had satisfied the burden of showing there was an alternative method of execution that significantly reduced a substantial risk of severe pain. He pointed out that three states have already incorporated nitrogen gas as an alternative method of execution. He went so far as to say that majority, by finding that Bucklew had not satisfied the burden, essentially devised new (or additional) requirements, making what amounts to an “insurmountable fuddle for prisoners like Bucklew.” Similarly, Justice Sotomayor wrote that she was “especially troubled” by the majority’s assertion that last-minute stays of execution should be the “extreme exception.”

The Stringent Line Drawn—Other Recent Supreme Court Decisions On The Death Penalty And The Vocal Dissents

In February 2019, Domineque Ray appealed to the Supreme Court after the lower courts held he was not entitled to have his imam be present at his execution. Without giving much reasoning, the court denied his request, alleging he had waited too long to object. Justice Kagan wrote a dissenting opinion in which she said the majority was “profoundly wrong.” She wrote that under Alabama’s policy a “Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion—whether Islam, Judaism or any other—he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality,” referring to the First Amendment bar on the government favoring one religious denomination over another.

In another very recent Supreme Court case, the Court, by vote taken in the middle of the night, denied a death row inmate the right to die by lethal gas instead of lethal injection. On April 13, 2019 at 3:00AM, Justice Breyer released a dissenting opinion to the 5–4 vote in which the Supreme Courted decided that Alabama may proceed with its execution of Christopher L. Price. Similar to Bucklew, Price had argued that Alabama’s lethal injection protocol would cause him severe pain. Price had asked Alabama to use lethal gas instead of a lethal injection. The two lower courts agreed to put a stay on the execution, but the Supreme Court majority pointed to Alabama’s Code §15-18-82.1(b)(2), which allowed death-row inmates in Alabama to have a 30-day period to elect to be executed via nitrogen hypoxia. The Court said that Price had the opportunity to choose lethal gas in 2018, but had waited until February 2019 to file an action. The Court essentially said that Price waited too long and was now barred from raising the issue. In his fiery dissent, Justice Breyer wrote, “[s]hould anyone doubt that death sentences in the United States can be carried out in an arbitrary way, let that person review the following circumstances as they have been presented to our court this evening.” The majority did not thoroughly review the merits of the case, but rather focused on the time in which Price had to request lethal gas but chose not to. Breyer’s vocal dissent shows the growing rift within the Supreme Court.

When looking at all the recent death row related Supreme Court decisions in unison, it is clear that the majority of the Court is not currently inclined to show leniency towards prisoners who committed capital crimes. Whether it is a medical request related to a rare disorder, or a request to have a particular spiritual leader present, the Supreme Court does not seem willing to make any accommodations as to how those who have committed a capital crime will meet their final destination.