WASHINGTON (CN) – The Supreme Court struggled Tuesday with the claims on a man of death row who says his rare medical condition will make lethal injection severely painful under Missouri’s execution method.
Russell Bucklew has been on death row for two decades, having been convicted in 1998 of murder, rape, kidnapping and other crimes. He suffers from a medical condition called cavernous hemangioma, which causes blood-filled tumors to grow in his head and neck.
He currently has one tumor on his uvula that falls into the back of his throat when he lies down, making it difficult for him to breathe. While he typically props his head up to avoid this while he is sleeping, he says he will have no such comfort in the execution chamber.
As a result, Bucklew has petitioned to be executed by lethal gas, saying the lethal-injection procedure would cause him so much pain and suffering that it would violate the Eighth Amendment.
Arguing on the inmate’s behalf this morning before the Supreme Court, Sidley Austin attorney Robert Hochman noted that Bucklew also has difficult-to-find veins, which will open him up to even more pain as the technicians use alternative methods to access his bloodstream. Even if everything goes exactly as the state’s plan suggests it should, Bucklew would still suffer greatly in the execution room, Hochman said.
Noting that Missouri law explicitly mentions lethal gas as a method of execution, Hochman said the state should be able to use it as an alternative in carrying out Bucklew’s sentence.
Hochman asked the justices to at least remand the case back to a lower court so the parties could develop a thicker record than the one currently before the Supreme Court and figure out the appropriate conditions for execution.
“This has to be taken care of, thought through in advance, I think it’s very complicated and the judgment we have right now just doesn’t do it for us and I think you have to vacate and remand,” Hochman said.
Bringing up a court precedent that requires inmates to identify a “reasonable alternative” when seeking a new method of execution, Chief Justice John Roberts wondered how Bucklew could claim lethal gas is a better option if no other state has tried it before.
“I know you think it’s not required in your case, but assuming that it is, how can it be a reasonable alternative if it’s never been used before?” Roberts asked.
Missouri State Solicitor John Sauer picked up on this point during his time before the court, suggesting Bucklew would surely raise issues with that method once Missouri filled out the details on how exactly such an execution would take place.
He also pointed out the anesthesiologist who will be in the room can raise the gurney on which Bucklew will be executed.
Sauer said Missouri has an interest in conducting the execution quickly and that Bucklew is trying to delay his execution by making speculative claims about his potential suffering.
“The goal is to have challenge after challenge after challenge,” Sauer said.
Several points of Sauer’s argument appeared, however, to ruffle the justices.
Justice Sonia Sotomayor, a frequent and forceful critic of the death penalty, pointed out for example that Missouri opened the door to a lethal-gas execution by including it as an acceptable method of execution on its books. She also said that, unlike in other death-penalty cases where courts have been concerned that providing relief would effectively end the death penalty, Bucklew’s case is unlikely to do so.
“An as-applied challenge is not going to abolish the death penalty with respect to everybody,” Sotomayor said. “It’s going to tell the state: If you have an individual with a unique circumstance in which a method of execution is going to cause that person excruciating pain, cruel and unusual pain, you better find a different way.”
Justice Brett Kavanaugh, considered a key vote in the case, also seemed skeptical of Sauer’s arguments, questioning if there is any limit on how states can carry out executions if an inmate is unable to present an alternative method.
“So you’re saying that even if the method imposes gruesome, brutal pain, you can still go forward?” Kavanaugh asked.