Published on: Tuesday, April 2, 2019

In Bucklew v. Precythe, No. 17-8151 (April 1, 2019), a divided Supreme Court rejected an as-applied lethal injection challenge by Russell Bucklew, who argued that his rare and degenerative medical condition would make it likely that execution by Missouri’s lethal injection protocol would be gruesome and involve excruciating suffering. Justice Gorsuch delivered the opinion of the court, joined by Chief Justice Roberts, and Justices Thomas, Alito, and Kavanaugh. Thomas and Kavanaugh filed concurring opinions. Justice Bryer, filed a dissenting opinion, joined by Justices Ginsburg, Sotomayor, and Kagan. Sotomayor also filed a dissenting opinion.

Bucklew suffers from a rare, progressive, and incurable medical condition—cavernous hemangioma—that causes inoperable, blood-filled tumors to grow in his throat and around his face, head, and neck. As summarized by Justice Breyer’s dissent: “Bucklew cites evidence that executing him by lethal injection will cause the tumors that grow in his throat to rupture during his execution, causing him to sputter, choke, and suffocate on his own blood for up to several minutes before he dies.”

In rejecting Bucklew’s challenge, the majority held that its decision in Baze v. Reese, 128 S.Ct. 1520 35 (2006) and Glossip v. Gross, 135 S.Ct. 2726 (2015) govern all Eighth Amendment challenges, whether facial or as-applied, alleging that a method of execution inflicts unconstitutionally cruel pain. “[A]n inmate cannot successfully challenge a method of execution under the Eighth Amendment unless he identifies an alternative that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.” (internal quotation marks omitted). The Court held that Bucklew failed to satisfy the Baze-Glossip test for two independent reasons. First, he failed to present a triable question of fact on the viability of nitrogen hypoxia as an alternative to Missouri’s lethal injection protocol. On this point, the Court emphasized that an inmate must show that his proposed alternative is not just theoretically “feasible” but also “readily implemented.” Second, the state had a “legitimate” reason for not wanting to switch protocols: it didn’t want to be the first to experiment with a new, “untried and untested” method of execution. Further, the Court faulted Bucklew for failing to show that nitrogen hypoxia would significantly reduce a substantial risk of pain.

Justice Bryer's dissent disagreed with just about every aspect of the majority's opinion. First, relying on specific, extensive, and detailed evidence in the summary judgment record, the dissent would find that "Bucklew has easily established a genuine issue of material fact regarding whether an execution by lethal injection would subject him to impermissible suffering." Second, the dissent would not require an as-applied challenge to a method of execution to identify a readily available alternative method of execution. Finally, despite finding that Bucklew has provided evidence that his execution by lethal injection will be excruciating, Justice Breyer criticizes the majority for letting the state execute Bucklew anyway.  "That decision confirms the warning leveled by the Glossip dissent—that the Court has converted the Eighth Amendment's 'categorical prohibition into a conditional one.'"

The certiorari and merits briefing in Bucklew are available on the Court’s website here. The Training Division provides resources and materials to federal capital trial, appellate, habeas attorneys through the Capital Defense Network.