The U.S. Supreme Court heard oral argu­ment on November 6, 2018 in Bucklew v. Precythe on whether the use of lethal injec­tion to exe­cute a Missouri pris­on­er with a rare med­ical con­di­tion would cause him unnec­es­sary and excru­ci­at­ing pain and suf­fer­ing and whether he was con­sti­tu­tion­al­ly required to pro­vide the state with a dif­fer­ent way for it to kill him. Media reports sug­gest­ed that the Court was sharply divid­ed on the issue with new­ly appoint­ed Justice Brett Kavanaugh like­ly to pro­vide the deciding vote. 

Russell Bucklew (pic­tured) suf­fers from cav­ernous heman­gioma, a rare dis­or­der that has caused blood-filled tumors to form, pri­mar­i­ly in his head, neck, and mouth. Doctors have said that an exe­cu­tion by lethal injec­tion could cause those tumors to rup­ture, caus­ing him excru­ci­at­ing pain as he dies from suf­fo­ca­tion and drown­ing in his own blood. Justice Kavanaugh, in his first ques­tion in his first death-penal­ty case since join­ing the Court, asked Missouri Solicitor General D. John Sauer, ​“Are you say­ing even if the method cre­ates grue­some and bru­tal pain you can still do it because there’s no alter­na­tive?” When Kavanaugh pressed Sauer for a direct answer, Missouri’s solic­i­tor said yes, so long as the state did not ​“attempt to delib­er­ate­ly inflict pain for the sake of pain.” 

Bucklew chal­lenged the require­ment, announced in the Court’s 2015 lethal-injec­tion deci­sion in Glossip v. Gross, that pris­on­ers who are chal­leng­ing the cru­el­ty of a state’s exe­cu­tion method must offer an alter­na­tive method of exe­cu­tion that is rea­son­ably avail­able to the state. Nonetheless, to com­ply with the require­ment, Bucklew pro­posed asphyx­i­a­tion by nitro­gen gas. Chief Justice John Roberts seemed skep­ti­cal of that pro­pos­al, ask­ing ​“how can it be a rea­son­able alter­na­tive if it’s nev­er been used before? … Things can go wrong regard­less of the method of exe­cu­tion. It seems to me that if you have a method that no state has ever used, that that dan­ger is mag­ni­fied.” Justice Sonia Sotomayor, who has raised seri­ous con­cerns about lethal injec­tion in past cas­es, ques­tioned the legit­i­ma­cy of the Court’s require­ment that pris­on­ers who chal­lenge exe­cu­tion meth­ods must present an alter­na­tive method. ​“I don’t actu­al­ly know where in the Eighth Amendment and its his­to­ry the court made up this alter­na­tive rem­e­dy idea,” she said, ​“because the Constitution cer­tain­ly doesn’t pro­hib­it cru­el and unusu­al pun­ish­ment unless we can’t kill you at all.”

Missouri has set exe­cu­tion dates for Bucklew twice, but both dates were stayed as a result of legal chal­lenges to the exe­cu­tion method. Public health experts and the Association for Accessible Medicines (AAM) — a pro­fes­sion­al asso­ci­a­tion rep­re­sent­ing gener­ic and biosim­i­lar drug man­u­fac­tur­ers and dis­trib­u­tors — filed ami­cus briefs in Bucklew’s case, call­ing the planned use of ​“essen­tial med­i­cines” in exe­cu­tions ​“med­ical­ly irre­spon­si­ble,” and warn­ing of pub­lic health risks caused by states’ efforts to obtain lethal-injection drugs.

(Amy Howe, Argument analy­sis: Relatively sub­dued court is divid­ed in lethal-injec­tion case, SCOTUSblog, November 6, 2018; Adam Liptak, Kavanaugh May Hold Key Vote in His First Death Penalty Case, New York Times, November 6, 2018; Richard Wolf, Supreme Court trou­bled by planned use of lethal injec­tion to exe­cute pris­on­er with rare con­di­tion, USA Today, November 6, 2018; Robert Barnes, Kavanaugh joins lib­er­als in tough ques­tions on exe­cu­tion plans for man with rare con­di­tion, Washington Post, November 6, 2018.) Read the argu­ment tran­script here. See U.S. Supreme Court and Lethal Injection.

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