Bucklew v. Precythe, No. 17-8151

In a 5-4 decision, the Supreme Court denied Russell Bucklew’s claim that Missouri’s lethal injection procedures would subject him to cruel and unusual punishment.

Bucklew has a rare congenital disease that causes blood-filled tumors in his head, neck, and throat, which can easily rupture. Bucklew argued that execution by lethal injection creates a significant risk that his tumors will erupt, causing unnecessary and excruciating pain and risking death by suffocation in violation of the Eighth Amendment. Bucklew’s expert indicated that the hemorrhaging of the tumors “will further impede Mr. Bucklew’s airway by filling his mouth and airway with blood, causing him to choke and cough on his own blood during the lethal injection process.” Pursuant to the requirement in Glossip v. Gross that a death-sentence prisoner demonstrate that a less painful method for his execution, Bucklew proposed execution by nitrogen gas.

Justice Neil Gorsuch authored the majority opinion denying Bucklew relief. The majority held that the constitution prohibits only executions that intensify the sentence of death with “superadd[ed] … terror, pain, or disgrace.” “The Eighth Amendment,” Gorsuch wrote, “does not guarantee a prisoner a painless death.” The majority held that a prisoner challenging a method of execution must provide a readily available alternative, even when the challenge is based on characteristics unique to the individual prisoner. The majority found that Bucklew had not provided sufficient evidence that nitrogen hypoxia was a readily available alternative or that nitrogen hypoxia would significantly reduce the risk of severe pain.

In a concurrence, Justice Brett Kavanaugh emphasized that all nine justices agreed that the alternative method proposed by the death row prisoner “need not be authorized under current state law.”

Glossip v. Gross, No. 14-7955

On June 29, 2015, the U.S. Supreme Court held (5-4) that Oklahoma prisoners “failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment.” Four prisoners on Oklahoma’s death row had challenged the state’s use of midazolam as the first drug in a three-drug protocol, saying that it “fails to render a person insensate to pain.” In a narrow decision written by Justice Samuel Alito, the Court deferred to a District Court ruling upholding the use of midazolam. Justice Alito said that, in order to prevail, the inmates would have had to identify a “known and available alternative method” that has a lower risk of pain. The decision will allow states that use midazolam, including Oklahoma, to resume executions, though they can still consider alternatives. In a sweeping dissenting opinion raising deep concerns about the death penalty itself, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, said, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution….Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.”

One of the four prisoners bringing the lethal injection challenge, Charles Warner, was executed before the Court decided to review the case.

(A. Liptak, “Supreme Court Allows Use of Execution Drug,” New York Times, June 29, 2015; Press Release, Attorneys for Glossip, June 29, 2015).

Read commentary on the case here. Read more about Breyer’s dissent here. For more information, see https://glossipvgross.com/.

Baze v. Rees, No. 07-5439

On April 16, 2008, the U.S. Supreme Court (7-2) ruled that Kentucky’s three-drug protocol for carrying out lethal injections does not amount to cruel and unusual punishment under the Eighth Amendment. At the time, thirty-five of the 36 states with the death penalty and the federal government use lethal injection as their primary method of execution. Seven Justices wrote opinions in the case, indicating that the Court is far from a consensus about how to resolve additional challenges that are likely to arise.

Ralph Baze and Thomas C. Bowling, two Kentucky death-row prisoners, challenged Kentucky’s administration of its lethal-injection protocol in state court. Kentucky had conducted only one execution by lethal injection so the Court had a limited record before it on which to judge the risks of severe pain from this process. In other states, including California, Missouri, and Tennessee, federal courts, with a different record before them, had found lethal-injection procedures to be unconstitutional. According to Chief Justice John Roberts’ opinion, litigants in other states will have to show there is a risk of severe pain that could be avoided by readily implementable and feasible alternatives that would significantly reduce the risk. Two Justices joined Roberts’ opinion, but a total of six Justices concurred in the judgment upholding Kentucky’s law. Justices Ginsburg and Souter dissented, saying that the case should have been remanded to the Kentucky courts for further review of alternatives to the present protocol.

Justice John Paul Stevens concurred in the Court’s judgment, but wrote separately, indicating that the current case does not resolve the entire issue of lethal injections:

I assumed that our decision would bring the debate about lethal injection as a method of execution to a close. It now seems clear that it will not. The question whether a similar three-drug protocol may be used in other States remains open, and may well be answered differently in a future case on the basis of a more complete record. Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself.

(L. Greenhouse, “Justices Uphold Lethal Injection in Kentucky Case, ” N.Y. Times, April 17, 2008).

While the Court was reviewing the Baze case, no executions were conducted. See Stays granted related to Baze v. Rees. For a selection of media coverage, read more here.

Hill v. McDonough, No. 05-8794

On June 12, 2006, the U.S. Supreme Court unanimously ruled in favor of Florida death-row prisoner Clarence Hill. The issue in the case was very similar to Nelson v. Campbell and asked whether federal courts could review general challenges to the constitutionality of the lethal-injection protocol in a civil-rights lawsuit, as opposed to in a habeas corpus petition. (The question presented was: Is a prisoner’s challenge to a particular form of execution - but not to the execution sentence itself - the practical equivalent of a federal habeas corpus petition and therefore barred if the prisoner has already sought habeas review?) Unlike Nelson who challenged Alabama’s protocol specific to his own concerns, Hill raised a general challenge to the three-drug protocol.

The court below refused to consider the merits of his claim because it held that his claim was more properly part of his habeas corpus appeal, and that it was thus barred for its lateness. The Supreme Court reversed that decision, holding that Hill (and consequently other death-row prisoners) could properly challenge the method of execution in a civil-rights lawsuit.

Florida set Hill’s execution date, despite Hill’s victory in the U.S. Supreme Court. The Supreme Court denied a stay (5-4) and Hill was executed on Sept. 20, 2006.

Nelson v. Campbell, 03-6821

On May 24, 2004, the U.S. Supreme Court unanimously ruled in favor of Alabama death-row prisoner David Nelson. Nelson filed a civil-rights lawsuit challenging the specifics of proposed method of execution, arguing that his particular medical condition made it such that if Alabama carried out his execution under its existing protocol, his execution would constitute cruel and unusual punishment. The lower courts refused to hear his claim because they determined that the claim should have been raised in his habeas corpus appeal. (The question presented was: Is a prisoner’s appeal of the proposed procedure for his execution functionally equivalent to a habeas corpus petition and therefore barred by Title 28, Section 2254 of U.S. Code?) The Court determined that because Nelson’s lawsuit challenged only with the proposed method of execution (not his conviction or sentence), it was different from a habeas corpus appeal.

Several years after winning his case in the Supreme Court, David Nelson passed away in the prison infirmary on November 2, 2009.