New Justice Brett Kavanaugh joined the Supreme Court’s liberal wing in questioning whether states can use their standard execution methods to kill people whose unique medical issues leave them at risk of severe pain.
Hearing arguments in Washington on the Nov. 6 Election Day, the justices weighed the fate of Russell Bucklew, a Missouri inmate who says his rare medical condition means he would probably choke on his own blood if given a lethal injection. Bucklew suffers from cavernous hemangioma, a disease that has caused blood-filled tumors in his head, neck and throat.
“Are you saying even if the method creates gruesome and brutal pain, you can still do it because there’s no alternative?” Kavanaugh asked Missouri Solicitor John Sauer. When Sauer said yes, Kavanaugh added, “Is there any limit on that?”
Kavanaugh, who directed all his questions during the hour-long session at Sauer, could cast the deciding vote in the case. In March the court voted 5-4 to halt Bucklew’s execution, with Justice Anthony Kennedy joining the court’s liberal wing in the majority. Kennedy has since retired and been replaced by Kavanaugh, President Donald Trump’s second Supreme Court appointee.
The Supreme Court broadly upheld lethal injection a decade ago but left open the possibility that individual inmates could press challenges based on their particular circumstances. Bucklew, 50, has proposed that the state look to lethal gas as an alternative way of killing him.
Bucklew was convicted of bursting into the home where his ex-girlfriend, Stephanie Ray, was staying in 1996. Bucklew shot and killed the homeowner, Michael Sanders, before abducting Ray and raping her. He isn’t challenging his conviction or death sentence.
Although Missouri has authorized gas as an alternative execution method, it hasn’t used it since 1965 and doesn’t have a functioning gas chamber. Missouri says that Bucklew must show lethal gas would be safer and that he hasn’t done so.
That stance drew support from Chief Justice John Roberts. “How can it be a reasonable alternative if it’s never been used before?” he asked Bucklew’s lawyer, Robert Hochman.
But Justice Sonia Sotomayor wondered how the state could disclaim an execution method it had specifically authorized.
“If the statute permits it, why shouldn’t they be able to choose it?” she asked.
Missouri also contends that Bucklew hasn’t shown he would suffer severe pain. Justice Stephen Breyer said there were important factual questions that hadn’t yet been resolved on that issue. Breyer suggested the two sides “go back and hold a full hearing” on Bucklew’s situation.
Sotomayor noted that Bucklew recently underwent a tracheotomy, and she asked whether the tube was still in place. Hochman said yes but added that officials could decide to remove it.
“If the trach stays, it’s a totally different case than if it’s removed,” Sotomayor said.
The case, which the court will decide by June, is Bucklew v. Precythe, U.S., No. 17-8151, oral argument 11/6/18.
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