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Ruling on ‘Gruesome’ Execution Case Exposes High Court Rifts (3)

April 1, 2019, 2:04 PMUpdated: April 1, 2019, 6:41 PM

A Missouri death row inmate with a rare medical condition lost a contentious appeal at the U.S. Supreme Court on April 1, clearing the way for what he warns will be a gruesome execution filled with bursting and bloody tumors.

Justice Neil M. Gorsuch wrote the 5-4 opinion against Russell Bucklew, reigniting a death penalty feud on the high court that was already in the spotlight recently, after the same majority in February allowed Alabama to execute a Muslim inmate without his imam present.

The Bucklew case further highlights the ideological divide on the court when it comes to capital punishment, particularly in cases where prisoners challenge the government’s preferred method of execution.

“It’s a profoundly disturbing decision” for multiple reasons, Samuel Spital, director of litigation at the NAACP Legal Defense & Educational Fund, Inc., said of the decision against Bucklew.

The Supreme Court “continues to be willing to turn a blind eye to very powerful evidence that the methods of execution being used throughout this country are placing prisoners at very substantial risk of being tortured to death, in ways that are just as barbaric as medieval torture chambers,” Spital said.

The case also highlights the impact of Justice Brett M. Kavanaugh’s arrival at the high court when it comes to death penalty cases. Before his appointment, the justices split 5-4 in granting Bucklew a temporary reprieve from execution, with Kavanaugh’s predecessor, Anthony M. Kennedy, in the majority along with the court’s four Democratic-appointees that sided with Bucklew. Kennedy was a swing vote on capital punishment.

Along with Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr., Kavanaugh joined Gorsuch’s opinion reversing Bucklew’s temporary fortune and pushing him closer toward his demise in a Missouri death chamber.

The decision “is also a caution against reading too much into Justice Kavanaugh’s questions at oral argument,” said the Death Penalty Information Center’s Executive Director, Robert Dunham.

He noted that, during the argument, Kavanaugh “expressed concern about allowing a torturous execution to go forward because a defendant could not identify a less painful alternative.” But that didn’t dissuade Kavanaugh “from denying Bucklew a hearing to see if such an alternative existed,” Dunham said.

Rare Disease

Bucklew has a disease called “cavernous hemangioma,” which causes vascular tumors—clumps of blood vessels—to grow in his head, neck, and throat. He argued that the state’s preferred method of lethal injection would cause his tumors to rupture, and that he would choke and suffocate on his own blood.

He wanted lethal gas instead.

But the state claimed, in effect, that everything would be fine, and that Bucklew didn’t do enough to prove an alternative execution method is better for him as required by Supreme Court precedent.

Agreeing with the state, Gorsuch wrote, in upholding a federal appeals court judgment against Bucklew, that he failed “to present a triable question on the viability of nitrogen hypoxia as an alternative to the State’s lethal injection protocol.”

Bucklew couldn’t show that the state’s method “superadds” pain to the death sentence, Gorsuch wrote, finding that the inmate couldn’t 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 Eighth Amendment, which forbids cruel and unusual punishment, “does not guarantee a prisoner a painless death—something that, of course, isn’t guaranteed to many people, including most victims of capital crimes,” Gorsuch wrote, noting that Bucklew was convicted of murder “and a variety of other crimes” and that the Supreme Court has “yet to hold that a State’s method of execution qualifies as cruel and unusual.”

Gorsuch also harped on what the majority viewed as Bucklew’s delay in bringing his claim, reasoning that condoning the longtime death row inmate’s argument would invite others to play games with litigation in an effort to avoid execution.

“The people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them deserve better,” Gorsuch wrote, foreshadowing Missouri officials’ reaction to the decision.

“The state of Missouri and the victims of Russell Bucklew’s crimes have waited 23 long years for this just and lawful sentence to be carried out. With today’s ruling, we’re one step closer to justice,” the state said in an official statement following the ruling. Bucklew’s lawyer didn’t immediately respond to a request for comment on the decision.

It’s a “disappointing decision resting on the majority’s expanded interpretation of the meaning of the ‘alternative-method requirement’ and its continuing focus on policy concerns over constitutional protections for death row inmates,” said Fordham law professor and death penalty expert Deborah W. Denno.

“Directly or indirectly, suspicions over Bucklew’s purported attempt to delay his execution overrides a balanced analysis of his expert’s testimony or his lawyers’ attempts to seek more information in discovery,” she said.

Higher Values: Dissent

Gorsuch’s opinion sparked multiple dissents—one from Justice Stephen G. Breyer, most of which was joined by the rest of the Democratic-appointees, and another from Justice Sonia Sotomayor, who wrote one for herself.

Bucklew “cites evidence that executing him by lethal injection will cause the tumors that grow in his throat to rupture during his execution, causing him to sputter, choke, and suffocate on his own blood for up to several minutes before he dies,” Breyer wrote, joined by Justices Ruth Bader Ginsburg, Sotomayor, and Elena Kagan.

“That evidence establishes at this stage of the proceedings that executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering,” Breyer wrote.

“The majority holds that the State may execute him anyway,” but Breyer argued that “violates the clear command of the Eighth Amendment.”

Responding to the majority’s stated concern with gamesmanship and delays in death penalty litigation—the same concern that led the majority to rule against the Muslim inmate from Alabama in February—Sotomayor added, in her solo dissent, that there are “higher values than ensuring that executions run on time.”

If a death sentence or the manner in which it is carried out violates the Constitution, “that stain can never come out,” she wrote. “Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.”

The case is Bucklew v. Precythe, U.S., 17-8151, affirmed 4/1/19.

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

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com