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://​glos​sipv​gross​.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.