Russell Bucklew was sentence to death for murder, kidnapping, and rape. He suffers from cavernous hemangioma, which causes clumps of weak, malformed blood vessels and tumors to grow in his face, head, neck, and throat.

Missouri intended to execute him by lethal injection. But he claims that killing him by gas, still on the books in Missouri but not used since 1965, would substantially reduce his risk of pain and suffering given his cavernous hemangioma. The Eighth Circuit rejected his request.

The Supreme Court has agreed to decide four issues in Bucklew v. Precythe. Until merits briefs are filed and oral argument is held in the fall it difficult to know what the Supreme Court will focus on. For now, the Eighth Circuit opinion provides the best clues.

Echoing his 2015 dissenting opinion in Glossip v. Gross, where the Supreme Court upheld Oklahoma’s three-drug lethal injection protocol, Justice Breyer asked the Court to reconsider the constitutionality of capital punishment in his concurring opinion in Dunn v. Madison.

Vernon Madison was sentenced to the death for the 1985 murder of a police officer. In 2016 he argued he was no longer competent to be executed due to a series of strokes. His psychologist and the state’s psychologist agree that Madison understands that he is being executed in retribution for murder. But he doesn’t remember killing anyone.

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A U.S. circuit court has dismissed claims by several Ohio death-row inmates that a state law on capital punishment unconstitutionally conceals information from them. The November decision affirmed a lower court ruling that the prisoners had no standing because they couldn’t prove harm from the denial of information, The (Toledo) Blade reports.

On July 1, 2016, a new Virginia law will take effect that will protect the identities of nearly all parties involved in state-performed lethal injections. HB 815 provides exemptions to the Freedom of Information Act to make confidential all identifying information of producers, suppliers, compounding pharmacies, executioners, and all other individuals involved in the procurement and use of lethal injection drugs. Virginia will become at least the 13th state with such a law.

The Supreme Court ruled 5-3 that when a judge had significant prior personal involvement as a prosecutor in a critical decision in the defendant’s case the judge must recuse himself or herself. 

District attorney Castille approved a subordinate prosecutor’s request to seek the death penalty against Terrance Williams. Williams was accused of a robbery and murder which he denied, on the stand, participating in.

Almost 30 years later Williams’s co-conspirator revealed that he had informed the prosecutor on the case that Williams and the victim had a sexual relationship that was the motive for the murder. A lower state court threw out Williams’s execution after discovering extensive prosecutor misconduct. 

Meanwhile, Castille had become Chief Justice of the Pennsylvania Supreme Court which was tasked with reviewing the lower court’s decision. The Pennsylvania Supreme Court unanimously reversed the lower court. Castille refused to recuse himself.

In Moore v. Texas the Supreme Court will review a Texas Court of Criminal Appeals decision to apply a previous definition of “intellectually disabled” adopted in a 1992 death penalty case rather than the current definition. Texas Legislature’s failure to act compels its decision, the lower court reasoned.

In Atkins v. Virginia (1992) the Supreme Court held that executing the intellectually disabled violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The Court tasked states with implementing Atkins.

Like many cases involving the death penalty, Williams v. Pennsylvania is a long story.

Terrance Williams was sentenced to death for killing Amos Norwood during a 1984 robbery in Philadelphia when Williams was eighteen. Williams claimed at trial he did not know Norwood, who was fifty-six.

In 2012 Williams’ co-conspirator Marc Draper revealed, among other things, that the prosecutor urged him to falsely testify that the motive for the murder was robbery, not that Norwood had sexually abused Williams, and the prosecutor wrote an undisclosed letter to the parole board on behalf of Draper. A hearing revealed the prosecutor failed to disclose extensive evidence of Norwood’s homosexual ephebophilia (attraction to teenagers).

In Glossip v. Gross the Supreme Court held 5-4 that death row inmates are unlikely to succeed on their claim that using midazolam as a lethal injection drug amounts to cruel and unusual punishment in violation of the Eighth Amendment.

All death penalty states and the federal government use lethal injection. In Baze v. Rees (2008) the Court approved a three-drug protocol that begins with a sedative, sodium thiopental, followed by a paralytic agent and a drug that causes cardiac arrest. Anti-death penalty advocates have persuaded United States and foreign manufacturers to stop producing sodium thiopental and an alternative, pentobarbital. So, Oklahoma and other states began using midazolam. Oklahoma increased the dose from 100 milligrams to 500 milligrams after Clayton Lockett was moving and talking after being administered 100 milligrams of midazolam. (An investigation into Lockett’s execution concluded that problems establishing IV access was the “single greatest factor that contributed to the difficulty in administering the execution drugs.”)

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Thirty-seven times during his long legislative career, Nebraska Sen. Ernie Chambers had introduced legislation to repeal the state’s death penalty. Every time, it had ended in defeat. And for those outside Nebraska, there was little reason to believe the 38th time would be the charm for death-penalty opponents — the newly elected governor supported capital punishment, and the Unicameral Legislature was still considered politically conservative. Inside the state Capitol, though, legislators were well aware that 2015 could finally be the year for a successful repeal.

“I knew there would be a serious push,” says Nebraska Sen. Beau McCoy, who opposed the repeal and, two years ago, had led a filibuster to stop a similar measure from advancing. Near the end of this year’s legislative session, supporters mustered not only enough votes to pass LB 268, but to override the veto of Gov. Pete Ricketts as well.
It marked the first time that a U.S. state’s repeal of the death penalty occurred over the veto of a governor.

To date, the Supreme Court’s docket for next term has less than ten cases.  Two of them involve the death penalty.  Combined, they raise at least three issues.   

It is difficult to know what issues the Court will decide in Hurst v. Florida.  In his certiorari petition Timothy Lee Hurst asked the Court to decide at least six issues.  The Court combined and shortened Hurst’s questions presented to address whether Florida’s death penalty sentencing scheme violates the Sixth (right to a jury trial) and Eighth (no cruel and unusual punishment) Amendments.    

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