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April 30, 2018

Following a stay last month, SCOTUS grants cert on a method of execution Eighth Amendment case from Missouri

The US Supreme Court this morning issued this order list this morning that includes a trio of grant of certiorari.  The only criminal case of the three is Bucklew v. Precythe.  Interestingly, Bucklew only first came to SCOTUS last month when, as noted in this prior post, the Supreme Court Justice split 5-4 when granting Russell Bucklew a stay from his execution in Missouri based in part on his claim that any lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment because he has "blood-filled tumors [growing] in his head, neck, and throat."  

Here is how this SCOTUSblog case page describes the issues presented by Bucklew's cert petition: 

Issues: (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; and (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition.

Interestingly, on the order list when granting cert, the Supreme Court asked the parties to brief some additional issues.  Here is what the Court said when granting cert:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. In addition to the questions presented in the petition, the parties are directed to brief and argue the following Question: Whether petitioner met his burden under Glossip v. Gross, 576 U. S. ___ (2015), to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State's method of execution.

This Bucklew case likely will not be argued until October or November 2018, and likely will not produce an opinion from the Court until probably around this time next year. So, stay tuned.

April 30, 2018 at 09:49 AM | Permalink


The decision can be applied rather narrowly (as tmm, e.g., explained noting the special facts) though the questions possibly opens up a wider conversation. One possible issue might be bringing nitrogen gas into the conversation. Sotomayor flagged the firing squad in her Glossip dissent. Nitrogen gas is due for its time in the sun as the "solution."

Posted by: Joe | Apr 30, 2018 12:43:33 PM

The Bureau of Justice Statistics just released a statistical report on capital punishment for 2016. Only five states executed someone in 2016. Florida, Georgia, Alabama, Texas and Missouri. California has the most death row prisoners (742) but never executes anyone. Florida has the second most (382) and executed one last year. 20 people were executed in 2016 and 70 were removed from death row by death, commutaion or overturned capital sentence. When are we going to follow the lead of the rest of the civilized world and eliminate the death penalty? What has tinkering with the machinery of death for almost 40 years Since Furman and Gregg gotten us?

Posted by: defendergirl | Apr 30, 2018 1:01:00 PM

Since 1792, every 100 years, someone invents a new device with the intent to make executions more palatable for the viewers, not the condemned.
First France, where doc Joseph Ignace Guillottin improved an old renaissance killing machine. Than New York, where Mr Thomas Alva Edison introduced modern technology in the field of state homicide. (Actually Edison was against capital punishment, but he was much more against Mr George Westinghouse. Anyway, nobody can stop science.)
Third arrived lethal injection, with the clear advantage of the disappearance of the hangman and the breaking of the butchery between the visible and the concealed. With lethal injection the work is dispersed in many parts and there is no more the actual executioner as in the traditional executions, where the audience perceives the cries, the trap-door’s bang, the shoots, the burned flesh smell. More, the bloody part, the needles insertion, is made out of sight, and the condemned is presented in a surgical way as a patient of a sanitizing outcome.

Posted by: Claudio Giusti | May 1, 2018 1:21:37 PM

“Those who would abolish capital punishment are not urging British to embark upon a new and hazardous experiment, or traverse uncharted seas, but merely to follow the lead of the many other countries where the death penalty as already dispensed with.”
Calvert Roy. Capital Punishment in the Twentieth Century. Putnam. London. 1927 p 45

“Indeed, it would have been odd if it had transpired that Englishmen alone are so peculiarly brutal by nature that they require some special deterrent from murder which nearly all the civilised countries of the world have found unnecessary in practice - in many cases for generations.”
Gerald Gardiner, Capital Punishment as a Deterrent, London, Gollanz, 1956. p 56

Posted by: Claudio Giusti | May 1, 2018 1:24:43 PM

The Shape of the Offender’s Neck
A Life for a Life? The Problem of Capital Punishment,
Sir Ernest Gowers, published by Chattoand Windus, London page 12

In 1886 a Committee was appointed to inquire into the way in which executions were carried out and the causes which in several recent cases had either led to failure or to unseemly occurrences and to make recommendations how they might be avoided. Present practice is based on the Report of that Committee. The essentials for success are a thickish rope, a knot precisely placed under the left ear, and a length of drop adjusted to the weight of the prisoner. Since these precautions were taken, there is no record in the Home Office of any failure or mishap in connection with an execution, and in the opinion of that Department execution by hanging, as now carried out, can be regarded as speedy and certain. But among murderers condemned to death there are occasionally some whose physical condition makes it undesirable that the execution should take place because it could not be done in a seemly manner, or “because some scandalous thing might happen-a person’s head might come off because the jaw was shot away or some other gruesome development might happen which would shock public opinion rather than show that the law has been vindicated.”
In such cases the prisoner must be reprieved, for it is illegal to carry out an execution in any other way. They are less rare than might be expected: in 1949 there had been five in the preceding fifteen years. A future student of the strange customs of the natives of Britain in the twentieth century will find few that will seem to him more quaint than that the decision between the death penalty and a less severe punishment should sometimes have depended not on the gravity of the offense but on the shape of the offender’s neck.

Posted by: Claudio Giusti | May 1, 2018 2:04:04 PM

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