Monday, April 1, 2019

Court Rejects As-Applied Challenge to Death Penalty Protocol by Prisoner with Rare Medical Condition

A sharply divided Supreme Court ruled today that a condemned prisoner failed to show that Missouri's lethal injection protocol violated the Eighth Amendment as applied to him, based on his rare medical condition. The Court split 5-4 along conventional conservative-progressive lines.

The case, Bucklew v. Precythe, arose when Russell Bucklew argued that Missouri's single-drug lethal-injection protocol was likely to cause severe pain, based on his rare medical condition, cavernous hemangioma. The condition causes vascular tumors to grow in Bucklew's head, neck, and throat. The tumors obstruct his airways and make it difficult for him to breathe, especially when he lies flat. As a result, he has to sleep at a 45 degree angle and adjust his head throughout the night. He often wakes up gasping for air. Moreover, the tumors hemorrhage with even minimal contact, and he wakes up each morning with blood on his face that leaked from tumors on his nose and mouth overnight.

Bucklew alleged that the state's lethal injection protocol would likely cause him severe pain because of his condition. (He only challenged the protocol as applied to him, not on its face.) His principal expert, an anesthesiologist, testified extensively as to the likely pain. As required by Baze and Glossip, Bucklew proposed nitrogen gas as an alternative.

Justice Gorsuch, writing for the five conservatives, rejected the challenge. Drawing extensively on history, the Court ruled first that the Eighth Amendment only prohibits only those punishments with a "superaddition" of "terror, pain, or disgrace," and that a prisoner "must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason." (The Court declined to say whether this required that an inmate show that the state intended its method to inflict pain, as Justices Thomas and Scalia would have had it.) The Court ruled that this standard governed as-applied as well as facial challenges to a state's method of execution, and thus governed Bucklew's challenge.

The Court ruled next that Bucklew failed to meet the standard. The Court said that while he identified an alternative (nitrogen gas), he failed to give the details:

He has presented no evidence on essential questions like how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some mixture of gases); how quickly and for how long it should be introduced; or how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks.

The Court also held that Bucklew failed to show that the alternative "would significantly reduce a substantial risk of severe pain."

Justice Thomas concurred, writing that he "adhere[s] to [his] view that 'a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain" and "to explain why Justice Breyer's dissenting opinion does not cast doubt on this standard."

Justice Kavanaugh concurred, writing to say that the "the burden of the alternative-method requirement 'can be overstated,'" and "to underscore the Court's additional holding that the alternative method of execution need not be authorized under current state law--a legal issue that had been uncertain before today's decision."

Justice Breyer wrote the dissent, joined by Justices Ginsburg, Sotomayor, and Kagan. Justice Breyer argued that Bucklew "cites evidence" and "established a genuine issue of material fact" that the state's method of execution will cause him excessive pain; that the alternative-method requirement doesn't apply in Bucklew's as-applied challenge; and that in any event Bucklew satisfied that burden.

Justice Sotomayor separately dissented, arguing that "there is no sound basis in the Constitution for requiring condemned inmates to identify an available means for their own executions."

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