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March 20, 2018

SCOTUS, by 5-4 vote, stays Missouri execution

As reported here by Amy Howe at SCOTUSblog, "over the objection of four justices, the Supreme Court tonight blocked Missouri from executing Russell Bucklew, who was scheduled to die tonight."  Here is more:

Bucklew was convicted for the 1996 murder of Michael Sanders, who was living at the time with Bucklew’s former girlfriend, Stephanie Ray. Bucklew kidnapped and raped Ray, and he wounded a state trooper during the shootout that preceded his capture.

Bucklew argues that allowing the state to execute him by lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment because he suffers from a rare disease that has caused “unstable, blood-filled tumors to grow in his head, neck, and throat.”  If Bucklew has trouble breathing when the execution begins, he contends, the tumor in his throat could rupture, filling his mouth and airway with blood.  As a result, he tells the justices, his “execution will very likely be gruesome and painful far beyond the pain inherent in the process of an ordinary lethal injection.”

The U.S. Court of Appeals for the 8th Circuit rejected Bucklew’s challenge to the constitutionality of his execution, holding that he had not shown that his suggested alternative method of execution —  lethal gas —  would significantly reduce the likelihood that he would suffer unnecessarily.

Last week Bucklew filed a petition asking the Supreme Court to review that ruling, which he described as resting on “3 distinct misreadings and dangerous extensions of this Court’s” earlier decisions on lethal injection. The state filed a brief opposing review, and Bucklew has filed his reply, but the case has not yet been scheduled for consideration at one of the justices’ private conferences. Tonight’s order staves off Bucklew’s execution to allow them to consider his petition. If the justices deny the petition, the stay will automatically end and the state can go forward with his execution; if they grant it, the stay will continue until the justices rule on the merits of his case.

I am inclined to speculate that the recent execution difficulties of Alabama and Ohio may have played at least some role in the willingness of swing Justice Anthony Kennedy in joining his colleagues voting for a stay in this case.

March 20, 2018 at 11:59 PM | Permalink


I would have liked both sides here to say why they voted as they did.

You'd think conservatives here might want to put nitrogen gas to the test in a fashion, since they probably figure it is only marginally different & if it is the choice, people would claim problems all the same. (see previous comment by tmm) Then, they can say "told ya so."

Posted by: Joe | Mar 21, 2018 12:17:18 AM

I understand the legal process. But, he raped and killed a woman and shot an officer.

How much pain did they have, they didnt get to file a petition so this guy raped killed and shot, so it was more human.

Boy what a candy @ss system we have, this can go on forever. These guys shouldnt get to exceed the method, pain and time exerted on their victims, simply put. Seems no limit on effort to avoid ofting these guys. When its assured by multiple people and way oast a reasonable doubt, hes gone.....Trump wants to e execute drug dealers, good luck Pres. Trump. Congress and USSC will never let this become law.

Death row will be 100 times larger than sum tital if Fedral prisons, just to satisfy Trumps ambitions. Trump will not get re-elected, this is certain..

Posted by: MidWestGuy | Mar 21, 2018 4:34:31 AM

In theory, the grant of the stay means that five Justices think that there is enough of a merits case that they want to keep the status quo intact pending the completion of the case. As there is already a panel decision from the Eighth Circuit, the only stages left are a motion for rehearing (unlikely to be granted) and a cert petition. The motion for rehearing was due yesterday (if not extended). Based on the calendar, assuming that a cert petition will be forthcoming, it probably will be too late for the June conference and will be considered at the long conference or one of the fall conferences (if the Eighth Circuit takes time before denying the petition for rehearing or either party gets extensions from the U.S. Supreme Court). It will be interesting to see if the Supreme Court grants cert on the merits.

Unlike the previous time, in which the Supreme Court granted a stay to give time for the trial court and the Eighth Circuit to address the merits, this time the district court and the Eighth Circuit have addressed the merits (albeit via summary judgment in the district court). In relevant part, they found that Bucklew's evidence did not show that there was a constitutionally different risk of unnecessary pain when the use of nitrogen gas was compared to lethal injection. While Bucklew obviously reads his experts differently, the courts found that his evidence was essentially that his medical condition might act up under the stress of the execution causing him pain and, whether that occurs depends on how long it takes for him to become sufficiently unconscious with some speculation as to how long that would be under the different methods of execution.

Because of his unique condition, Missouri is unlikely to use an entirely different method of execution (some minor modifications have been made to the protocol in light of his condition) unless ordered to do so by the courts. Those unique conditions also, to some extent, mean that using nitrogen gas in this case would not necessarily say anything about the risks of nitrogen gas in a "regular" execution.

I can theoretically see granting a stay to give the Supreme Court time to consider the cert petition. But, if the Supreme Court denies the cert petition, there should be no third stay. If the Supreme Court does grant cert and ultimately resolves the case on the merits, it will be interesting to see if it is about the granting of summary judgments in this type of case or about clarifying the standard -- particularly in an "as applied challenge," since most of the previous cases are facial challenges.

Posted by: tmm | Mar 21, 2018 10:37:44 AM

"Those unique conditions also, to some extent, mean that using nitrogen gas in this case would not necessarily say anything about the risks of nitrogen gas in a "regular" execution."

Not sure how this follows, but maybe?

This is akin to using the firing squad for someone because his veins make using lethal injection impractical. The condition might in some fashion influence the events, but it would probably "say something" about it since there is some general similarity to execution by firing squad in general.

Posted by: Joe | Mar 21, 2018 10:53:48 AM

Bubos are now a mitigating factor.

Irony. Here is the real violation of the Eighth Amendment.

The Court is condemning the appellant to a painful, debilitating, prolonged, humiliating death. He will be made to suffer by the medical system for months or years. His care will cost the tax payer $millions, perhaps more than the death penalty appeal process. He will have to be cleaned up by illegal aliens. The family of the victim should be allowed to visit him in the hospital, to take some comfort from his prolonged suffering. "Hi, Russ. Remember Stephanie? No opiate for you. Trump says, it is a no-no."

Posted by: David Behar | Mar 21, 2018 11:56:29 AM

Joe, I am basing my comment about what can be learned about nitrogen on the summary of evidence in the Eighth Circuit's opinion. In part because of the fact that this is an as applied challenge -- Bucklew was part of the group of inmates who lost a facial challenge several years back -- the evidence focuses on Bucklew's unique circumstance rather than a general comparison of lethal injection to nitrogen. (So far, Missouri's executions have not had any of he problems that other states have had.)

As best as I could tell -- and judicial summaries of evidence are not always accurate -- Bucklew's problem is that he has blood-filled tumors in his throat that could burst under stressful conditions causing him to have difficulty breathing -- basically that he could choke on his own blood while being executed. It is unclear how likely it is that this will happen, and the likelihood of it happening seems not to be related to the method being used (except to the extent that one method might take longer before the inmate dies). As such, regardless of which method is used, the tumors may or may not burst. If they do burst, we will not know if they would have burst under the method that was not used. And if the State were to use nitrogen and the tumors did burst, the complicating factor caused by the tumor bursting would leave us with no information about how painful a nitrogen execution would be to someone who was not having his airway obstructed by blood.

Posted by: tmm | Mar 21, 2018 4:07:12 PM


"not necessarily" isn't much anyhow

Posted by: Joe | Mar 21, 2018 5:18:12 PM

I would say that the fact that lethal injection is not employed with the intentional design of inflicting pain (as is evisceration) that he should lose regardless of the standard, that it should be an objective standard that looks only at the method of execution rather than the particular circumstances of any given condemned.

Also, make an inmate wishing to pursue an alternate method of execution strategy agree to forego any challenge to that method even if they lose the court case. That way if the state later decides to switch to that method for whatever reason the inmate is unable to file a new challenge because they got what they desired.

Posted by: Soronel Haetir | Mar 22, 2018 5:03:49 PM

"intentional design of inflicting pain"

This is a curious test with definition issues.

Something might in a given case -- with notice ahead of time -- cause horrible pain. The state intentionally inflicts it anyway. It is not "cruel" though because they didn't intend it when first establishing the punishment.

I can understand if someone has little sympathy for a horrid murderer or think the pain inflicted isn't cruel enough (as compared to crucifixion of something) but IF something is so horrible to fit even that limited test, it would objectively be "cruel" by many definitions. Individuals get benefits by constitutional rights and they often are incident specific.

Posted by: Joe | Mar 23, 2018 4:02:59 PM

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