The U.S. Supreme Court has grant­ed review in the case of Missouri death-row pris­on­er Russell Bucklew, who has argued that the severe form of a rare con­gen­i­tal dis­or­der from which he suf­fers makes it uncon­sti­tu­tion­al­ly cru­el for him to be exe­cut­ed by lethal injec­tion. Bucklew has an extreme form of cav­ernous heman­gioma, a mal­for­ma­tion of his blood ves­sels that caus­es blood-filled tumors to grow in his head, neck, and throat. The tumors, he has argued, are like­ly to rup­ture dur­ing the lethal-injec­tion process, result­ing in an excru­ci­at­ing­ly painful exe­cu­tion dur­ing which he would choke on his own blood. Bucklew pro­posed as an alter­na­tive that the state exe­cute him using nitro­gen gas. Missouri has twice set exe­cu­tion dates for Bucklew while he has been chal­leng­ing its exe­cu­tion method — once in May 2014 and again in March 2018. In both instances, the Supreme Court inter­vened, issu­ing stays of exe­cu­tion that per­mit­ted fur­ther court pro­ceed­ings in his case. The first stay per­mit­ted the U.S. Court of Appeals for the Eighth Circuit to hear and decide Bucklew’s appeal from a Missouri fed­er­al dis­trict court rul­ing that had dis­missed his lethal-injec­tion chal­lenge with­out an evi­den­tiary hear­ing. After con­sid­er­ing the appeal, the Eighth Circuit reversed the dis­trict court deci­sion and ruled that Bucklew was enti­tled to move for­ward with his law­suit. In an attempt to devel­op facts relat­ing to how risky his exe­cu­tion would be, Bucklew filed a series of dis­cov­ery requests — each opposed by Missouri pros­e­cu­tors — seek­ing infor­ma­tion about the qual­i­fi­ca­tions of the exe­cu­tion team mem­bers. The court denied each of Bucklew’s requests. The dis­trict court accept­ed Bucklew’s argu­ment that lethal injec­tion car­ried a sub­stan­tial risk that he would choke and be unable to breathe for up to four min­utes before dying. Nonethless, in June 2017, it again dis­missed his case, again with­out hold­ing a tri­al, say­ing that Bucklew had not shown that nitro­gen gas would sig­nif­i­cant­ly reduce his suf­fer­ing dur­ing the exe­cu­tion. Bucklew appealed, but while the appeal was pend­ing, the state obtained a sec­ond exe­cu­tion date, this time for March 20, 2018. On March 6, a split appeals court pan­el vot­ed 2 – 1 to affirm the low­er court. Hours before the exe­cu­tion was to be car­ried out, the Supreme Court issued a sec­ond stay of exe­cu­tion to give itself more time to decide whether to hear Bucklew’s case. On April 30, the Court accept­ed the case for review. In addi­tion to the ques­tions Bucklew had raised, the Court ordered the par­ties to address whether Bucklew had met his bur­den under the Court’s 2015 lethal-injec­tion deci­sion in Glossip v. Gross ​“to prove what pro­ce­dures would be used to admin­is­ter his pro­posed alter­na­tive method of exe­cu­tion, the sever­i­ty and dura­tion of pain like­ly to be pro­duced, and how they com­pare to the State’s method of exe­cu­tion.” The Glossip deci­sion requires a pris­on­er who chal­lenges the con­sti­tu­tion­al­i­ty of a method of exe­cu­tion to show not only that the state’s method of exe­cu­tion will cre­ate a sub­stan­tial risk of severe pain, but also that a fea­si­ble and read­i­ly avail­able alter­na­tive exists that sig­nif­i­cant­ly reduces that risk. This is the first time that the Supreme Court has grant­ed review in a case involv­ing lethal-injec­tion pro­ce­dures since it decid­ed Glossip.

(Greg Stohr, Death-Row Inmate With Rare Disease Gets U.S. High Court Review, Bloomberg News, April 30, 2018; Nathalie Baptiste, The Supreme Court Will Review Case of a Man Whose Blood-Filled Tumors Could Burst During Execution, Mother Jones, April 30, 2018; Robert Barnes, Supreme Court to weigh exe­cu­tion method that could cause inmate excru­ci­at­ing death, Washington Post, April 30, 2018.) See Lethal Injection and Supreme Court.

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