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Executioners Lobby for Death Row Inmate at High Court

Oct. 17, 2018, 2:59 PM

A Missouri death row inmate’s Supreme Court fight has support from unlikely allies: former executioners.

The group of ex-prison officials—wardens, superintendents, commissioners, and even executioners themselves—aren’t directly involved in Russell Bucklew’s case. But they’ve filed an amicus—or “friend of the court"—brief with the justices to share firsthand reflections on administering the ultimate punishment.

They’re trying to help Bucklew avoid it. Or at least to avoid the way the state wants to do it.

Bucklew argues his impending execution by lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment.

His rare and severe health conditions—leading to compromised veins and other ailments—mean the necessary injections would cause him to suffer needlessly, replete with bursting and bloody tumors, he says. He’d rather be killed by lethal gas, which he argues would be less cruel.

But Missouri wants to kill him its way.

The Nov. 6 oral argument comes as executions across the country have gone awry, leading to potentially painful episodes for inmates. It’s more than the Constitution can tolerate, they’ve argued with little success.

About three percent of all executions from 1890 to 2010 were botched, according to the Death Penalty Information Center. The numbers for lethal injection are more than twice as bad.

But even if prisoners like Bucklew put forward alternative—potentially less painful—methods of execution, the law doesn’t automatically accept the proposal, leading to legal fights like the one here.

The former officials join Bucklew in that fight.

“Such executions do not serve the State’s interests in finality or justice,” they argue. “Instead, they make public servants parties to barbarism.”

Their brief is a “moving testament to the human toll that these executions exact on our public servants—our men and women in uniform who have to carry them out,” Bernard Harcourt told Bloomberg Law. Harcourt, a professor at Columbia Law School, represented Doyle Lee Hamm, whose botched execution attempt earlier this year the ex-officials cite as an example of what can go wrong in situations like Bucklew’s.

“We rarely hear about the extent of the psychological damage to all the men and women who are involved in these executions, the wardens and officers, the attorneys and paralegals, the chaplains, and so many more,” said Harcourt. “Most people don’t even know the number of people who are touched, and don’t really care.”

But Bucklew shouldn’t get an “exemption” from capital punishment, the state maintains, pointing to his “vicious crime spree” over two decades ago, where he committed murder, attempted murder, kidnapping, rape, escape from jail, and assault. Missouri’s lethal injection method “is the most humane and effective method of execution available,” the state says.

Heavy Burden

The ex-officials agree with Bucklew that his execution would run afoul of the Constitution.

But their argument isn’t framed in purely altruistic terms. They want the court “to consider not only the immorality of executing a man using cruel and unusual means, but also the harm to public servants who participate in such an act.”

They emphasize “the heavy burden that executions place on the people who must carry them out—a burden that becomes intolerable when, as here, there is a grave risk that a botched execution will result in excessive pain and suffering.”

It’s bad enough when inmates don’t present dire circumstances like Bucklew’s, they explain to the justices. “Even when everything goes according to plan, standing face-to-face with an inmate and taking his life is a substantial burden to carry.” The psychological consequences of carrying that burden, they note, “are well-documented, and can be severe.”

It leads some employees to substance abuse and to experience “symptoms of post-traumatic stress including depression, flashbacks, nightmares, pain with no known physical origin, and dissociative disorders.”

But the burden will be especially heavy if the state has its way here, they contend. There’s a “substantial probability that the process will be lengthy and will end only when Mr. Bucklew either suffocates or drowns in his own blood,” the former officials warn. When an execution results “in unnecessary pain and suffering, the burden of participation becomes unbearable.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com