In a divi­sive 5 – 4 deci­sion that exposed ran­cor and deep rifts among the jus­tices, the U.S. Supreme Court has giv­en Missouri the go-ahead to exe­cute a pris­on­er whose blood-filled tumors in his head, neck, and mouth could burst if the state car­ries out his exe­cu­tion by its cho­sen method. Russell Bucklew (pic­tured), who suf­fers from the rare med­ical con­di­tion, cav­ernous heman­gioma, had argued that Missouri’s lethal injec­tion pro­ce­dures would sub­ject him to unnec­es­sar­i­ly tor­tur­ous and excru­ci­at­ing pain caused by the com­bi­na­tion of suf­fo­ca­tion and drown­ing in his own blood. Writing for the Court major­i­ty, Justice Neil Gorsuch reject­ed Bucklew’s claim, say­ing that the con­sti­tu­tion pro­hibits only exe­cu­tions that inten­si­fy the sen­tence of death with ​“superadd[ed] … ter­ror, pain, or dis­grace.” ​“The Eighth Amendment,” he wrote, ​“does not guar­an­tee a pris­on­er a pain­less death.” Gorsuch said a death-row pris­on­er could not prove super­added pain with­out propos­ing an avail­able alter­na­tive exe­cu­tion method and that Bucklew had failed to do so. The four dis­senters sharply crit­i­cized the deci­sion for ignor­ing evi­dence that Bucklew would be sub­ject­ed to excru­ci­at­ing pain, for cre­at­ing impos­si­ble bur­dens on pris­on­ers to avoid a tor­tur­ous exe­cu­tion, and for sac­ri­fic­ing con­sti­tu­tion­al val­ues for expe­di­en­cy in death penalty cases.

In a non-bind­ing por­tion of the opin­ion, Justice Gorsuch sug­gest­ed that chal­lenges to lethal injec­tion are often ​“tools to inter­pose unjus­ti­fied delay” and wrote that “[l]ast-minute stays should be the extreme excep­tion, not the norm.” Justice Clarence Thomas con­curred sep­a­rate­ly reit­er­at­ing his belief that ​“a method of exe­cu­tion vio­lates the Eighth Amendment only if it is delib­er­ate­ly designed to inflict pain. … Because there is no evi­dence that Missouri designed its pro­to­col to inflict pain on any­one, let alone Russell Bucklew, I would end the inquiry there,” he wrote. Justice Brett Kavanaugh also con­curred, empha­siz­ing that the alter­na­tive method pro­posed by the death row pris­on­er ​“need not be autho­rized under cur­rent state law.” Kavanaugh sug­gest­ed death by fir­ing squad as an exam­ple of a poten­tial­ly avail­able alternative method.

Justices Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, dis­sent­ed. Justice Breyer’s lead dis­sent crit­i­cized the majority’s treat­ment of the evi­dence Bucklew had pre­sent­ed in sup­port of his Eighth Amendment claim. That evi­dence, Breyer wrote, estab­lish­es that ​“exe­cut­ing Bucklew by lethal injec­tion risks sub­ject­ing him to con­sti­tu­tion­al­ly imper­mis­si­ble suf­fer­ing” and ​“vio­lates the clear com­mand of the Eighth Amendment.” He also argued that a pris­on­er who is chal­leng­ing the cru­el­ty of a par­tic­u­lar exe­cu­tion method based sole­ly on his or her unique med­ical cir­cum­stances should not be required to iden­ti­fy an alter­na­tive method of exe­cu­tion, but that Bucklew nev­er­the­less had ade­quate­ly raised nitro­gen hypox­ia as an alter­na­tive. Finally, in a part of the dis­sent express­ing only his own opin­ion, Breyer argued that the majority’s approach to redress­ing exe­cu­tion delays by ​“cur­tail­ing the con­sti­tu­tion­al guar­an­tees afford­ed to pris­on­ers” is inap­pro­pri­ate. Instead, he sug­gest­ed, the delays nec­es­sary to ensure that the cap­i­tal pun­ish­ment is fair­ly imposed and prop­er­ly car­ried out may be evi­dence that ​“there sim­ply is no con­sti­tu­tion­al way to imple­ment the death penalty.”

In a sep­a­rate dis­sent, Justice Sotomayor called the Court’s approach to lethal-injec­tion chal­lenges ​“mis­guid­ed,” writ­ing that, “[a]s I have main­tained ever since the Court start­ed down this way­ward path in [2015], there is no sound basis in the Constitution for requir­ing con­demned inmates to iden­ti­fy an avail­able means for their own exe­cu­tions.” Calling the majority’s com­ments about last-minute stays ​“not only inessen­tial but also whol­ly irrel­e­vant to its res­o­lu­tion of any issue” before the Court, Sotomayor cau­tioned that “[i]f a death sen­tence or the man­ner in which it is car­ried out vio­lates the Constitution, that stain can nev­er come out. Our jurispru­dence must remain one of vig­i­lance and care, not one of dismissiveness.”

(Robert Barnes, Divided Supreme Court rules against death-row inmate with rare con­di­tion, Washington Post, April 1, 2019; Adam Liptak, Rancor and Raw Emotion Surface in Supreme Court Death Penalty Ruling, New York Times, April 1, 2019; Jordan S. Rubin, Ruling on ​‘Gruesome’ Execution Cases Exposes High Court Rifts, Bloomberg Law, April 1, 2019; Scott Lemieux, The Supreme Court ruled that ​‘cru­el and unusu­al pun­ish­ment’ no longer pre­cludes unusu­al­ly cru­el pun­ish­ments, NBC News, April 2, 2019.) Read the Court’s opin­ion in Bucklew v. Precythe. See U.S. Supreme Court, Executions, and Lethal Injection.

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