Supreme Court Rules against Capital Defendant’s Request for Alternative Method of Execution

In Bucklew v. Precythe the Supreme Court ruled 5-4 that Missouri wasn’t required to execute Russell Bucklew using a drug he claimed would cause him less pain due to his unusual medical condition, cavernous hemangioma.

Bucklew was sentenced to death for killing a neighbor who was sheltering his former girlfriend and her children after she broke up with Bucklew. Cavernous hemangioma causes tumors to grow in Bucklew’s head, neck, and throat. He claims that the sedative Missouri intends to use in its lethal injection protocol will cause him feelings of suffocation and excoriating pain due to his disease for a longer amount of time than the alternative drug he suggests. He claims Missouri’s protocol is unconstitutional as applied to him. 

The Eighth Amendment disallows “cruel and unusual punishment.” The Supreme Court held in Glossip v. Gross (2015) that a state’s refusal to alter its lethal injection protocol may violate the Eighth Amendment if an inmate identifies a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain.”

Bucklew first argued that he didn’t have to identify an alternative drug because his challenge wasn’t facial (applicable to all prisoners sentenced to death) but instead was only to the lethal injection protocol as applied to him. Justice Gorsuch, writing for the majority of the Court, disagreed noting that “Glossip expressly held that identifying an available alternative is ‘a requirement of all Eighth Amendment method-of-execution claims’ alleging cruel pain.” 

Bucklew ultimately identified nitrogen as an alternative drug. But the majority of the Court rejected it for two reasons. First, Bucklew failed to demonstrate Missouri could execute him “relatively easily and reasonably quickly” using nitrogen. Specifically, Bucklew “presented no evidence on essential questions like how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some mixture of gases); how quickly and for how long it should be introduced; or how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks.” Second, according to the Court, Missouri could legitimately refuse to switch drugs because nitrogen has never been used for an execution.

Even assuming nitrogen was a readily available alternative the Court concluded that Bucklew wasn’t able to show that using it would significantly reduce the substantial risk of severe pain. While Bucklew pointed to several risks that could result from using Missouri’s plan that would not be present if nitrogen was used (like Bucklew having to lie flat and the IV being placed in one of his compromised veins), the Court determined these risks were unsupported if not contradicted by evidence in the case.

Finally, Bucklew’s expert stated that he might only feel a sense of suffocation with nitrogen for 20 to 30 seconds but he might feel the sense of suffocation for much longer with Missouri’s sedative of choice, pentobarbital. Bucklew’s expert relied on a horse euthanasia study that showed the absence of detectable brain activity (isoelectric EEG) after 52 to 240 seconds after a large dose of pentobarbital was given. But Bucklew’s expert got the number wrong; horses in the study displayed isoelectric EEG between 2 and 52 seconds. And now everyone “seems to acknowledge that isoelectric EEG is the wrong measure,” as doctors perform major surgery on humans with measurable EEG readings.

The Court’s more liberal Justices—Breyer, Ginsburg, Sotomayor, and Kagan—dissented in this case.