United States Supreme Court Rejects Another Challenge to Another Method of Lethal Injection But Leaves the Door Open to Future Litigation

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The Supreme Court decided Bucklew v. Precythe today, rejecting a death row inmate’s challenge to Missouri’s single-drug execution protocol. Challenges to lethal injection are now 0-for-3 in the Supreme Court, but the Court did not foreclose future litigation. To the contrary, it left the door open to further challenges, and so did nothing to break up the litigation logjam that has resulted in a de facto moratorium on executions in North Carolina.

Facts. Russell Bucklew’s girlfriend left him and sought refuge at a neighbor’s home. Bucklew forced his way into the home; shot and killed the neighbor; and pistol-whipped, kidnapped, and raped Bucklew’s girlfriend.

Procedural history. Bucklew was convicted of murder and sentenced to death. His appeals and collateral attacks on his conviction were not successful.

Bucklew then sought to challenge Missouri’s lethal injection protocol. During Bucklew’s time on death row, Missouri modified its protocol several times, moving from a three-drug “cocktail” to the use of a single sedative, propofol, to the use of a different single sedative, pentobarbital. Other states have likewise adjusted their protocols, sometimes in response to an inability to procure drugs for use in lethal injections.

As these changes were taking place, the constitutionality of lethal injection was being litigated across the country, resulting in two decisions by the Supreme Court. In Baze v. Rees, 553 U.S. 35 (2008), the Court upheld Kentucky’s three-drug lethal injection protocol because the inmate challenging it did not identify an alternative method of execution that was “feasible, readily implemented, and [would] in fact significantly reduce a substantial risk of severe pain.” And in Glossip v. Gross, 576 U. S. __ (2015), the Court reaffirmed Baze and rejected a challenge to Oklahoma’s slightly different three-drug protocol.

Ultimately, Bucklew advanced an as-applied Eighth Amendment challenge to Missouri’s protocol:

Mr. Bucklew . . . contended that the State’s protocol would cause him severe pain because of his particular medical condition. Mr. Bucklew suffers from a disease called cavernous hemangioma, which causes vascular tumors—clumps of blood vessels—to grow in his head, neck, and throat. His complaint alleged that this condition could prevent the pentobarbital from circulating properly in his body; that the use of a chemical dye to flush the intravenous line could cause his blood pressure to spike and his tumors to rupture; and that pentobarbital could interact adversely with his other medications.

Later, Bucklew also contended that he would “experience pain [specifically, a sense of suffocation] during the period after the pentobarbital started to take effect but before it rendered him fully unconscious.” Pushed by the courts to identify an alternative method of execution, Bucklew eventually stated that he could be executed by “lethal gas,” specifically, nitrogen hypoxia, a method that The New York Times discusses here. A federal district court granted summary judgment against Bucklew and the Eighth Circuit affirmed.

Majority opinion. The Supreme Court granted review and affirmed 5-4. Justice Gorsuch wrote the majority opinion, joined by the Court’s other conservative Justices. He observed as an initial matter that the Court “has yet to hold that a State’s method of execution qualifies as cruel and unusual,” because states generally do not seek to make executions more terrifying or painful than necessary and indeed normally seek the opposite.

The Court then ruled that inmates bringing as-applied Eighth Amendment challenges, just like those bringing facial challenges, must identify superior alternatives, because assessing methods of execution is “a necessarily comparative exercise.” Bucklew’s alternative of nitrogen hypoxia did not pass muster, according to the majority, because it could not be “readily implemented.” It has never been used by any state in an execution, though several states have now authorized its use, and Bucklew “presented no evidence on essential questions like how nitrogen gas should be administered . . . in what concentration . . . and for how long,” or “how the State might ensure the safety of the execution team.” Furthermore, the majority didn’t think that nitrogen hypoxia would “significantly reduce” the risk of pain compared to lethal injection — with either method, there could be a “twilight period” during which Bucklew could experience a feeling of suffocation, and the majority viewed as shaky the evidence that the twilight period would be substantially longer with lethal injection.

Dissent. Justice Breyer wrote the principal dissent, joined by Justices Ginsburg, Sotomayor, and Kagan. The dissent described Bucklew’s medical condition more graphically than did the majority: the rare condition causes “tumors filled with blood vessels to grow throughout [Bucklew’s] body, including in his head, face, neck, and oral cavity.” This condition creates a risk that “executing him by lethal injection will cause the tumors that grow in his throat to rupture . . . causing him to sputter, choke, and suffocate on his own blood for up to several minutes before he dies.”

On the legal issues, the dissenters would have ruled that an as-applied challenge like Bucklew’s does not require comparison to an alternative method — that it is enough if an inmate can show a significant risk of an excessive or horrific amount of pain using a state’s preferred method. Assuming arguendo that an inmate does need to present an alternative, the dissenters would have found Bucklew’s evidence regarding nitrogen hypoxia to be sufficient to deny summary judgment, citing reports by Louisiana and Oklahoma that it would cause no discomfort and that it would be “simple to administer.”

The door to future litigation is open. Although challenges to lethal injection have not found favor with the Supreme Court yet, the Court did not foreclose future litigation over methods of execution. To the contrary, if a future litigant were able to present more compelling evidence about the suffering caused by lethal injection or more convincing evidence about the feasibility of an alternative such as nitrogen hypoxia, such a litigant might have a viable claim. Justice Kavanaugh, who joined the majority opinion, even wrote separately to emphasize that “the alternative method of execution need not be authorized under current state law.” For this reason, I doubt that the Court’s opinion will do much to change North Carolina’s de facto moratorium on executions — it does not severely undermine existing litigation over methods of execution.

North Carolina connection. Beyond its implications for North Carolina, there’s one more North Carolina connection in the case. The named defendant is Anne Precythe, Director of the Missouri Department of Corrections. Ms. Precythe began her career as a probation and parole officer in Duplin County, North Carolina, and worked her way up in our corrections hierarchy before taking the top job in Missouri.

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