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April 1, 2019

Splitting 5-4 along traditional ideological lines, SCOTUS rejects Missouri inmate's challenge to lethal injection protocol

The Supreme Court this morning handed down its opinion in an execution protocol case, Bucklew v. Precythe, No. 17-8151 (S. Ct. April 1, 2019) (available here).  The Court split 5-4 in favor of the state of Missouri, and here is how Justice Gorsuch's opinion for the Court gets started:

Russell Bucklew concedes that the State of Missouri lawfully convicted him of murder and a variety of other crimes.  He acknowledges that the U.S. Constitution permits a sentence of execution for his crimes.  He accepts, too, that the State’s lethal injection protocol is constitutional in most applications.  But because of his unusual medical condition, he contends the protocol is unconstitutional as applied to him.  Mr. Bucklew raised this claim for the first time less than two weeks before his scheduled execution.  He received a stay of execution and five years to pursue the argument, but in the end neither the district court nor the Eighth Circuit found it supported by the law or evidence. Now, Mr. Bucklew asks us to overturn those judgments.  We can discern no lawful basis for doing so.

Justice Breyer penned the lead dissent, and it gets started this way:

The Court’s decision in this case raises three questions.  The first is primarily a factual question, namely, whether Bucklew has established genuine issues of material fact concerning whether executing him by lethal injection would cause him excessive suffering.  The second is primarily a legal question, namely, whether a prisoner like Bucklew with a rare medical condition must identify an alternative method by which the State may execute him.  And the third is a more general question, namely, how to minimize delays in executing offenders who have been condemned to death.

I disagree with the majority’s answers to all three questions. 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.  That evidence establishes at this stage of the proceedings that executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering.  The majority holds that the State may execute him anyway.  In my view, that holding violates the clear command of the Eighth Amendment.

The decision includes short concurring opinions from Justices Thomas and Kavanaugh, and also a added dissenting opinion by Justice Sotomayor. I fear a busy day means I will not be able to analyze all that is being said in this case until late tonight.  But I suspect, as is always true with capital cases, lots of other folks will have lots to say about what various Justices are saying here.

April 1, 2019 at 10:12 AM | Permalink


Kavanaugh takes pains to suggest that future litigants could ask for firing squad, but is probably blowing smoke. The majority opinion claims to leave open the possibility of suing to get a method not approved under state law, but points out that that probably would have to be done under habeas, not section 1983. I'm no habeas expert, so someone please correct me if I'm wrong, but I doubt most prisoners could get such a request through the AEDPA gateway.

Posted by: Jacob Berlove | Apr 1, 2019 9:33:07 PM

You are correct. Petitioners need to plead unripe LI claims in their first petitions if the state doesn’t authorize other methods. Or if state law changes on this, which has been common, they can plead a second in time petition not subject to AEDPA based on new state law to avoid the bar on second or successive petition (see magwood v Patterson)

Posted by: Calif appeals lawyer | Apr 1, 2019 11:03:59 PM

A good point, Jacob, though a lot may turn on particulars of state law --- e.g., do they list a back-up plan and/or give prison officials some discretion to use other methods, etc.

Also, even if there are procedural questions, the flagging of a firing squad by Justice Kavanaugh as an option gives the defense another viable claim to present and extend litigation. Indeed, I presume Russell Bucklew and his lawyers are talking today about whether and how to plead a firing squad as an alternative method now. The reality of what we have seen after both Baze and Glossip is an ability for effective defense counsel to keep litigating hard even after big SCOTUS losses.

Posted by: Doug B. | Apr 2, 2019 10:16:55 AM

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