Caseflicks

Supreme Court of the United States • 2019

Bucklew v. Precythe

587 U.S. 119 | 139 S. Ct. 1112 | 203 L. Ed. 2d 521 | 2019 U.S. LEXIS 2477

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Takeaway

In short, Bucklew confirms that every Eighth Amendment method-of-execution challenge, facial or as applied, requires a prisoner to propose a feasible, readily implemented alternative that would significantly reduce a substantial risk of severe pain; Bucklew's nitrogen-hypoxia proposal and supporting proof did not meet that standard.

Background

Russell Bucklew was sentenced to death in Missouri for murder and related crimes. Missouri planned to execute him by a single-drug lethal-injection protocol using pentobarbital. Bucklew suffers from cavernous hemangioma, a rare condition that produces vascular tumors in his head, neck, and throat. He alleged that, because of those tumors, lethal injection would cause him severe pain, including a sensation of suffocation before he became unconscious.

Bucklew brought this as-applied Eighth Amendment challenge shortly before a scheduled 2014 execution. The District Court initially dismissed the claim, and the Eighth Circuit remanded to allow Bucklew to identify a feasible, readily implemented alternative execution method that would significantly reduce his asserted risk of severe pain. After initially resisting that requirement, Bucklew proposed nitrogen hypoxia. Following extensive discovery, the District Court granted Missouri summary judgment because Bucklew had not shown that nitrogen hypoxia was a readily implemented alternative or that it would significantly reduce his risk of pain. The Eighth Circuit affirmed.

Issues

Issue #1

Whether the Baze-Glossip requirement that a prisoner identify a feasible, readily implemented alternative method of execution applies to an as-applied Eighth Amendment challenge based on the prisoner's individual medical condition.

Holding

Yes. The Baze-Glossip standard governs all Eighth Amendment method-of-execution claims alleging cruel pain, including as-applied claims.

Reasoning

The Court read Glossip v. Gross as expressly establishing an alternative-method requirement for all method-of-execution claims. Under Baze v. Rees and Glossip, a prisoner must identify a feasible and readily implemented alternative that would significantly reduce a substantial risk of severe pain, and must show that the State lacks a legitimate penological reason for refusing that alternative.

The Court grounded this rule in its historical account of the Eighth Amendment. The Amendment permits capital punishment but forbids methods that cruelly “superadd” terror, pain, or disgrace beyond the punishment of death itself. Historically accepted execution methods, including hanging, could entail considerable pain, but were not unconstitutional merely because they were not painless.

In the Court's view, deciding whether pain is constitutionally excessive is necessarily comparative. A court must compare the State's chosen method with a viable alternative to determine whether the State is inflicting gratuitous pain rather than carrying out a lawful death sentence with unavoidable risks.

The facial versus as-applied distinction concerns the scope of the requested remedy, not the substantive meaning of the Eighth Amendment. The Court rejected the idea that identical constitutional language should impose one substantive rule when a protocol is challenged generally and another when it is challenged only as applied to one person.

Creating a separate rule for as-applied claims would also invite litigation over labels and pleading strategy. The Court added that an inmate need not limit a proposed alternative to methods authorized by the State's current law; he may point to a well-established method used elsewhere, subject to the State's possible legitimate reasons for declining to adopt it.

Issue #2

Whether Bucklew produced sufficient evidence for a trial on whether nitrogen hypoxia was a feasible, readily implemented alternative that Missouri lacked a legitimate reason to reject.

Holding

No. Bucklew failed to show that nitrogen hypoxia was readily implemented, and Missouri had a legitimate reason not to be the first State to use an untried method.

Reasoning

A proposed alternative must be more than theoretically possible. It must be described in enough operational detail to permit a finding that the State could implement it relatively easily and reasonably quickly.

Bucklew did not establish key details of a nitrogen-hypoxia execution protocol. He offered no evidence concerning the delivery mechanism, nitrogen concentration, rate and duration of administration, or protections for the execution team against gas leaks. Reports recommending additional research did not establish that a usable protocol was ready for implementation.

Missouri also had a legitimate reason to reject nitrogen hypoxia: it had never been used in an execution and lacked a track record of successful use. The Eighth Amendment bars cruel or novel torturous punishments, the Court explained, but does not compel a State to become the first to experiment with an untried and untested execution method.

Issue #3

Whether Bucklew produced sufficient evidence that nitrogen hypoxia would significantly reduce a substantial risk of severe pain compared with Missouri's pentobarbital protocol.

Holding

No. His claimed risks from lethal injection were speculative or unsupported by the record, and he did not show that pentobarbital would leave him conscious and able to experience pain materially longer than nitrogen hypoxia.

Reasoning

Bucklew argued that intravenous access, a possible cut-down procedure, being placed flat on his back, and stress-induced tumor bleeding would create risks that nitrogen would avoid. But the record showed that Missouri would not use compromised peripheral veins, that medical staff could position the gurney according to Bucklew's medical needs, and that a femoral IV could be placed without a cut-down procedure. Bucklew had not developed contrary evidence despite having discovery opportunities.

Bucklew's principal theory was that pentobarbital would leave him in a semiconscious period during which his tumors would obstruct his airway, causing a painful sense of suffocation. He conceded, however, that nitrogen hypoxia could also cause a period of perceived suffocation; thus, his claim depended on proving that pentobarbital would leave him capable of feeling pain significantly longer.

The evidence did not support that comparison. Missouri's expert testified that pentobarbital would render Bucklew unconscious within approximately 20 to 30 seconds. Bucklew's expert did not supply a reliable contrary estimate and relied on a horse-euthanasia study that Bucklew's counsel later acknowledged had been misread. Properly read, the study did not show a prolonged period of pain perception.

The Court further noted that an isoelectric EEG—the absence of detectable brain activity—was not the relevant measure of consciousness or pain perception, because patients can undergo surgery while retaining measurable EEG activity. The incomplete evidence about nitrogen's implementation also allowed for the possibility that nitrogen hypoxia could cause as much or more suffering than pentobarbital.

Concurrences

Justice Thomas

Reasoning

Justice Thomas adhered to his view that the Eighth Amendment prohibits a method of execution only when it is deliberately designed to inflict pain. On that approach, Bucklew's claim failed immediately because no evidence suggested that Missouri designed its protocol to cause pain to Bucklew or anyone else.

He maintained that the Amendment's historical target was the intentional superaddition of terror, pain, or disgrace through torturous punishments such as burning, disemboweling, or quartering. This rule is not confined to historically known methods, he explained, because a modern method could still be deliberately devised to inflict gratuitous suffering.

Justice Thomas joined the Court's opinion because Bucklew also failed under the more claimant-friendly Baze-Glossip framework. He rejected the dissent's suggestion that his intent-based standard would improperly freeze the Amendment in the eighteenth century.

Justice Kavanaugh

Reasoning

Justice Kavanaugh agreed that Baze and Glossip require an inmate bringing an as-applied method-of-execution claim to identify a feasible alternative that significantly reduces the risk of severe pain.

He emphasized a related point on which all nine Justices agreed: the proposed alternative need not be authorized by the State's existing execution statute. This substantially limits the burden imposed by the alternative-method requirement.

In particular, he observed that Missouri had suggested the firing squad as a potentially available alternative if properly pleaded. He did not decide whether any particular alternative is feasible for every State, but stressed the Court's conclusion that an inmate who genuinely faces a serious risk of pain will ordinarily be able to identify an available alternative.

Dissents

Justice Breyer

Reasoning

Justice Breyer concluded that the case should have gone to trial. Applying the summary-judgment standard, he would credit Bucklew's expert evidence that Bucklew's tumors could rupture or hemorrhage during lethal injection, obstruct his airway with blood, and cause prolonged choking, suffocation, and severe pain before death.

He disputed the majority's conclusion that the record showed no likelihood of pain lasting more than 20 to 30 seconds. In his view, Dr. Zivot testified that Bucklew could suffer throughout the minutes between injection and death, and any weakness in the expert's reliance on a horse-euthanasia study created a credibility and factual dispute for trial rather than a basis for summary judgment.

Justice Breyer would not extend Glossip's alternative-method requirement from a facial challenge to this as-applied challenge. Glossip sought to prevent a categorical challenge from becoming a means of abolishing capital punishment altogether; exempting a prisoner with Bucklew's rare medical condition from one protocol would neither invalidate the death penalty generally nor prevent the State from selecting another lawful method.

He also reasoned that an alternative method was unnecessary as a benchmark in this setting. Missouri's ordinary, apparently tolerable use of lethal injection on prisoners without Bucklew's condition supplied a practical comparator for measuring the extraordinary pain that Bucklew alleged he would suffer.

Even if an alternative were required, Justice Breyer believed that Bucklew had created a triable factual issue. Missouri law authorized lethal gas, other States had authorized nitrogen hypoxia, and Oklahoma and Louisiana reports described it as simple to administer, quick, painless, and capable of causing unconsciousness in approximately 17 to 20 seconds. Requiring Bucklew to resolve every technical implementation detail would make the alternative-method burden effectively impossible for prisoners facing extraordinary pain.

Justice Breyer agreed that the lengthy delays accompanying capital punishment are troubling, but rejected reducing constitutional protections to speed executions. He suggested that the constitutional demands of reliability, fairness, and protection against cruel punishment may be incompatible with a death-penalty system that also operates quickly.

Justice Sotomayor

Reasoning

Justice Sotomayor joined Justice Breyer's dissent except for its discussion of systemic delay. She reiterated her view that the Constitution provides no sound basis for requiring a condemned prisoner to identify an available means of his own execution, and she agreed that Bucklew's evidence warranted a trial.

She separately criticized the majority's closing discussion of last-minute litigation as unnecessary dicta. In her view, Bucklew's suit was not manipulative: when it began, the law had not yet resolved whether the alternative-method requirement applied to an as-applied claim involving a rare medical condition.

She warned against treating late-arising stay applications as presumptively suspect. Courts should apply established equitable principles, including likelihood of success, irreparable injury, harm to other parties, and the public interest; because death is qualitatively different from other punishments, a credible constitutional claim ordinarily presents especially powerful equitable concerns.

Delay can be unjustified and tactical, she acknowledged, but constitutional claims may also arise late for reasons outside a prisoner's control, including secrecy and changing state execution protocols. Courts must therefore evaluate each request carefully on its merits rather than place an extra thumb on the scale for finality when a human life is at stake.