Facing Bloody Execution, Prisoner Presses Human Rights Claim

A longtime Missouri death row prisoner with a rare medical condition has “continued to deteriorate” and “continues to be at a very high risk of choking to death on his own blood during an execution,” according to a declaration from the doctor who evaluated him last week.

Facing an Oct. 1 execution that he and his supporters say will almost certainly amount to torture, Russell Bucklew could face such a brutal end due to “the rupturing of the blood-filled tumors in his throat,” the declaration dated Tuesday from Dr. Joel Zivot said.

“In such a circumstance, Mr. Bucklew would experience feelings of suffocation and extreme and excruciating pain,” Zivot said following his Sept. 20 evaluation of Bucklew.

Though Bucklew presented evidence that his rare and progressive disease, called cavernous hemangioma, would lead him to “sputter, choke, and suffocate on his own blood for up to several minutes before he dies” during execution by lethal injection, the Supreme Court ruled against him in April, 5-4.

Bucklew couldn’t show that the state’s injection method “superadds” pain to the death sentence, Justice Neil Gorsuch wrote for the court’s five Republican-appointees, over multiple dissents from Democratic-appointees saying Bucklew’s execution would violate the Eighth Amendment’s ban on cruel and unusual punishment. Both sides cited previous testimony from Zivot in support of their points.

Zivot is an assistant professor of anesthesiology and surgery at the Emory Center for Critical Care/Emory University, and is an expert on physician participation in lethal injection, according to his website bio. He’s written extensively on the topic. He’s been consulting with Bucklew’s attorneys since 2014.

Human Rights Claim

Having lost at the high court, Bucklew is now pressing his claim in a human rights forum in Washington, trying to put political pressure on Missouri Gov. Michael Parson, a Republican, to halt the execution, while state officials and victim advocates—and, it seems, a majority of the Supreme Court—say justice is already long overdue.

Bucklew was convicted of murder and other offenses after a “vicious crime spree” over two decades ago that also included kidnapping, rape, escape from jail, and assault, the state said in a brief to Supreme Court justices last year.

But on Tuesday, at a rare hearing at the Organization of American States’ Inter-American Commission on Human Rights, the focus was on Bucklew’s condition and what his lawyers and supporters say will be a gruesome affair in a Missouri death chamber, if the state goes through with it.

The situation is more than just life or death—it’s life or being tortured to death, the ACLU’s Jamil Dakwar said at the hearing. But it’s a situation that Parson can prevent with the stroke of a pen, he said.

Missouri didn’t send anyone to the hearing, but the U.S. State Department did. Its representatives maintained that Bucklew has already gotten his day in court, and that his impending execution can’t amount to torture under international law because the state doesn’t intend to cause him pain.

Commissioners clearly sided with Bucklew at the hearing, taking both Missouri and the U.S. to task for their capital punishment positions.

Yet it’s unclear what effect, if any, all of this will have on Parson’s decision whether to grant Bucklew clemency.

In a statement provided to Bloomberg Law on Tuesday before the hearing, his office said he “takes seriously both his duty and responsibility to see that lawfully entered capital sentences are carried out in accordance with state law.” Each capital punishment case “will be thoroughly reviewed before any decision for pardon or clemency is made. Governor Parson has consistently supported capital punishment when merited by the circumstances and all other legal remedies have been exhausted and when due process has been satisfied.”

Parson’s office didn’t immediately respond to a followup inquiry on Tuesday as to his latest position.

But the drumbeat for Bucklew will continue in the days leading up to his potential demise.

Adding to the grassroots effort, the ACLU and Missourians for Alternatives to the Death Penalty say that, on Thursday, they’ll bring volunteers to the Missouri state capitol and deliver tens of thousands of petitions to Parson, pressing him to halt the execution.

The commission, an autonomous organ of OAS whose mission is to “promote and protect human rights in the American hemisphere,” has previously weighed in on Bucklew’s case to oppose his execution, including in connection with a petition brought by him and Charles Warner, who was on death row in Oklahoma.

Oklahoma executed Warner in 2015. While he was being executed, he said, “My body is on fire.”