Month: August 2019

On April 1, 2019, the Supreme Court decided Bucklew v. Precythe, a case considering the standard applicable when an offender sentenced to death raises an Eighth Amendment challenge to the state’s lethal injection procedure.
Petitioner Russell Bucklew was convicted of murder and sentenced to death by lethal injection of a single drug, pentobarbital, by the State of Missouri. Bucklew challenged the State’s injection protocol under the Eighth Amendment, alleging that regardless of whether it would cause excruciating pain for all prisoners, it would cause him severe pain because of a particular medical condition he had.
The District Court dismissed his challenge. The U.S. Court of Appeals Eighth Circuit, applying Supreme Court precedent in Baze v. Rees and Glossip v. Gross, remanded the case to allow Bucklew to identify a feasible, readily implemented alternative procedure that would significantly reduce his alleged risk of pain. Bucklew eventually suggested nitrogen hypoxia, but the District Court rejected his argument for lack of evidence. A divided Eighth Circuit panel affirmed, and the Supreme Court granted certiorari.
By a vote of 5-4, the Supreme Court affirmed the judgment of the Eighth Circuit. In an opinion delivered by Justice Gorsuch, the court held that Baze and Glossip govern all Eighth Amendment challenges alleging that a method of execution inflicts unconstitutionally cruel pain, and Bucklew’s as-applied challenge fails the Baze-Glossip test. He failed to raise a triable issue of fact regarding the viability of nitrogen hypoxia as an alternative method, and even if he had there was no showing that it would significantly reduce a substantial risk of severe pain.
Justice Gorsuch’s majority opinion was joined by the Chief Justice and Justices Thomas, Alito, and Kavanaugh. Justice Thomas and Justice Kavanaugh filed concurring opinions. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined as to all but Part III. Justice Sotomayor also filed a dissenting opinion.
To discuss the case, we have Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation.