In a 5-4 opinion, the United States Supreme Court majority in Bucklew v. Precythe, 2019 U.S. LEXIS 2477 (Apr. 1, 2019), held that an inmate with a rare condition causing tumors with blood vessels to grow in his neck, head, and throat failed to satisfy the test that two prior Supreme Court cases established to determine whether a particular execution method inflicts unconstitutionally cruel pain under the Eighth Amendment. That standard required the inmate to show the existence of a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain” and that the State had refused to adopt the alternative standard without a legitimate penological reason. Prior to its application, the Court first held that this standard governs all Eighth Amendment challenges, whether facial or as-applied, alleging that a method of execution inflicts unconstitutionally cruel pain.
Background
In 1996, Russell Bucklew violently attacked Stephanie Ray after she told Bucklew she wanted to end their relationship. Bucklew later handcuffed Ray, drove her to a secluded area and raped her at gunpoint. After a trooper saw Bucklew, a shootout ensued and Bucklew was arrested. Meanwhile, Ray had bled to death. A jury convicted Bucklew of murder and sentenced him to death. After decades of legal challenges to death penalty protocols and some changes to execution standards in the interim, the State of Missouri’s current method of execution involves lethal injection of the drug pentobarbital. The State scheduled Bucklew’s execution for May 21, 2014.
Bucklew suffers from a disease called cavernous hemangioma, which causes vascular tumors filled with blood vessels to grow in his head, neck, and throat. Twelve days before his scheduled execution, Bucklew added to his existing challenge to the pentobarbital method which alleged the method would produce excruciating pain and violate the Eighth Amendment on its face. Bucklew now presented an additional as-applied Eighth Amendment challenge to the State’s lethal injection protocol, alleging that, regardless whether it would cause excruciating pain for all prisoners, it would cause him severe pain because of his particular medical condition. His complaint alleged that this condition could prevent the pentobarbital from circulating properly in his body; that the use of a chemical dye to flush the intravenous line could cause his tumors to rupture; and that pentobarbital could interact adversely with his other medications.
The District Court dismissed Bucklew’s challenges. The Eighth Circuit remanded the case to allow Bucklew to identify a feasible, readily implemented alternative procedure that would significantly reduce his alleged risk of pain. Bucklew identified nitrogen hypoxia, but the District Court found the proposal insufficient and granted the State’s motion for summary judgment. The Eighth Circuit affirmed.
Discussion
The Supreme Court explained that the Constitution of the United States allows capital punishment. For example, the Fifth Amendment contemplates that a defendant can be “deprived of life” as a punishment for a “capital” crime. The Eighth Amendment does not prohibit the death penalty, but does forbid “cruel and unusual” methods in carrying out capital punishment. The Court explained that the Eighth Amendment had permitted methods of execution, like hanging, that involved a significant risk of pain, while prohibiting as cruel only those methods that intensified the death sentence by “superadding” terror, pain, or disgrace. Examples of cruel treatment included methods such as dragging, disemboweling, and burning alive. Given historical precedent that hanging and electrocution and other historically permitted methods often resulted in “significant pain,” the Supreme Court said that the “Eighth Amendment does not guarantee a prisoner a painless death.”
Baze-Glossip Standard
The Court explained that in Baze v. Rees, 553 U. S. 35 (2008), a plurality of the Supreme Court held that to establish a method of execution’s cruelty in the Eighth Amendment sense, a prisoner must first show a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain” and that the State has refused to adopt the alternative standard without a legitimate penological reason. Baze, 553 U.S., at 52. Then in Glossip v. Gross, 135 S. Ct. 2726 (2015), the Supreme Court held that this standard governs all Eighth Amendment method-of-execution claims.
The Supreme Court explained that Baze and Glossip recognized that the Constitution affords a “measure of deference” to a State’s choice of execution procedures and does not authorize courts to serve as “boards of inquiry charged with determining ‘best practices’ for executions.” Baze, 553 U. S., at 51-52. The Court added that these cases also do not suggest that traditionally accepted methods of execution are necessarily rendered unconstitutional as soon as an arguably more humane method becomes available.
The Court stated that precedent foreclosed Bucklew’s argument that methods posing a substantial and particular risk of grave suffering when applied to a particular inmate due to his unique medical condition should be considered “categorically” cruel. The dissent agreed. However, the majority here said that Baze and Glossip had explained that “[b]ecause distinguishing between constitutionally permissible and impermissible degrees of pain is a necessarily comparative exercise, the Court held in Glossip, identifying an available alternative is ‘a requirement of all Eighth Amendment method-of-execution claims’ alleging cruel pain.” Moreover, “Glossip expressly held that identifying an available alternative is ‘a requirement of all Eighth Amendment method-of-execution claims’ alleging cruel pain,” including as-applied challenges. The Court added that Bucklew’s as-applied argument failed because the law had always asked whether the punishment superadded pain beyond what was needed to effectuate a death sentence. Determining the answer to that question had always involved a comparison with available alternatives, “not an abstract exercise in ‘categorical’ classification.”
The Court also explained that classifying a lawsuit as facial or as-applied would affect the breadth of the remedy, but leave the substantive rule of law to be used unchanged. The Court suggested Bucklew’s and the dissent’s view contemplating “categorically” cruel methods would apply a different legal standard for facial lawsuit challenges compared to as-applied ones. The Court also said Bucklew’s argument would invite pleading games because such distinctions were often vague in determining whether a claim was facial or as-applied. Lastly, the Court said it saw little likelihood that an inmate facing a serious risk of pain would be unable to identify some available alternative as required by the Baze-Glossip test.
Thus, the Court held that Baze and Glossip govern all Eighth Amendment challenges, whether facial or as-applied, alleging that a method of execution inflicts unconstitutionally cruel pain.
Application of the Baze-Glossip Test
The Court next addressed whether Bucklew’s challenge survived the Baze-Glossip test. The Court first explained that the correct standard on appeal after summary judgment was whether Bucklew had shown a genuine issue of material fact warranting a trial. Bucklew proposed an alternative execution method using nitrogen hypoxia instead of the State’s method of lethal injection with pentobarbital. The Court explained that Bucklew failed to present a triable question on the viability of nitrogen hypoxia as an alternative for two independent reasons.
First, the Court said that Bucklew’s proposal was not a “feasible, readily implemented” one because it lacked sufficient information to show that the State could carry it out “relatively easily and reasonably quickly.” McGehee v. Hutchinson, 854 F.3d 488, 493 (8th Cir. 2017). For example, Bucklew did not present evidence as to how nitrogen gas should be administered, or its concentration, or for how long applied. Instead, Bucklew simply pointed to reports from correctional authorities in other States indicating the need for additional study to develop a nitrogen hypoxia protocol. This, the Supreme Court said, was “a proposal for more research, not the readily implemented alternative that Base and Glossip require.” The Court thus found Bucklew’s proposal fell well short of the required standard.
Second, the Court found that the State had a “legitimate” reason under Baze for declining to switch from its current method of execution as a matter of law – choosing not to be the first to experiment with a new, “untried and untested” method of execution. Baze, 553 U.S. at 41. Bucklew’s proposal had never been used to carry out an execution.
The Supreme Court next explained that even if nitrogen hypoxia were a feasible, readily implemented alternative, neither of Bucklew’s theories showed that nitrogen hypoxia would significantly reduce a substantial risk of severe pain as required under Baze-Glossip.
First, Bucklew contended that the State might use painful procedures, given his condition, to administer the lethal injection which could impair his breathing even before the pentobarbital was administered. The Court found the record did not support, and perhaps contradicted, his speculative claims. The Court added that to the extent the record was unclear, Bucklew had ample opportunity to conduct discovery and develop a factual record regarding the State’s planned procedures.
Second, Bucklew argued that while either method would cause him to experience “a sense of suffocation” for some period of time before he is rendered fully unconscious, the duration of that period will be shorter with nitrogen than with pentobarbital. The Court found “nothing in the record” suggested that Bucklew would be capable of experiencing pain for significantly more time after receiving pentobarbital than he would after receiving nitrogen. Bucklew’s claim to the contrary, said the Court, rested on his expert’s testimony regarding a disputed study of euthanasia in horses that “everyone now agrees the expert misunderstood or misremembered.”
For these reasons, the Court found that Bucklew failed to satisfy the Baze-Glossip test. The Supreme Court accordingly affirmed.
Dissent
In the primary dissent, Justice Breyer was joined by Justices Bader Ginsburg, Sotomayor, and Kagan. The dissent detailed Bucklew’s severe physical condition and discussed the “extensive testimony” from their expert witness, an anesthesiologist expressing the prolonged and “excruciating pain and suffering” that is “highly likely” to occur under the State’s method of execution. The dissenting Justices accordingly found that the evidence, taken in the light most favorable to Bucklew as required, created a genuine factual issue as to whether the State’s method of execution would subject Bucklew to several minutes of severe pain and suffering.
The dissent also disputed that Bucklew was required to suggest an alternate method of execution. Even if he was, Bucklew had actually presented an alternative anyway, and the dissent cited sources suggesting the alternative might be feasible and easily implemented. The Court noted that Missouri and two other states already allowed the use of nitrogen in executions. The Justices said that Glossip did not require Bucklew to detail the administration of nitrogen hypoxia or its concentrations, or other details the majority opinion listed; instead, the dissent said, “today’s majority invents” such requirements. Justice Breyer was not joined by the other dissenting Justices in his last part of his writing. In this part, Breyer agreed with the majority that delays between sentences of death and the executions were “excessive.” However, he contended that the majority’s solution “curtail[ed] the constitutional guarantees afforded to prisoners” sentenced to death. He added that “the majority’s new rules are not even likely to improve the problems of delay at which they are directed.”
In an additional separate dissent, Justice Sotomayor said she was “especially troubled by the majority’s statement that ‘[l]ast-minute stays should be the extreme exception,’ which could be read to intimate that late-occurring stay requests from capital prisoners should be reviewed with an especially jaundiced eye.” Justice Sotomayor expressed concern that if such comments were mistaken for a new governing standard, they would “effect a radical reinvention of established law and the judicial role.” She concluded: “There are higher values than ensuring that executions run on time.”
HOW THIS AFFECTS YOUR AGENCY
In Bucklew, the Supreme Court majority established the death penalty standard in execution challenges to be thus: To establish a method of execution’s cruelty in the Eighth Amendment sense, a prisoner must first show a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain” and that the State has refused to adopt that alternative without a legitimate penological reason. Inmates affected by this case may have increasing discovery demands of officials to determine execution methods both in California and nationally.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.