WASHINGTON (CN) – The Supreme Court cleared the way 5-4 Monday for Missouri to execute a man whose rare medical condition could make lethal injection severely painful.
In 1997, Russell Bucklew was given the death penalty for murder. A year earlier, he had stalked an ex to her new boyfriend’s trailer. He put the woman in handcuffs, dragged her to a car and raped her, but first he shot her boyfriend dead and tried to shoot a fleeing child.
Bucklew has spent decades on death row meanwhile, arguing that Missouri’s method of execution, lethal injection, amounts to cruel and unusual punishment because he suffers from a rare blood disorder called cavernous hemangioma.
In his petition for certiorari, Bucklew noted that he is riddled with tumors because of the disease. An expert testified that one tumor in Bucklew’s throat that blocks his airway means he needs constant intervention to keep from suffocating. That tumor will likely rupture and hemorrhage during the lethal-injection process, leaving Bucklew to choke to death on his own blood.
Bucklew argued that it would be more humane to give him the gas chamber, but the Supreme Court noted Monday that this method has “never been used to carry out an execution” and has “no track record of successful use.”
Under the 2008 ruling Baze v. Rees and the 2015 case Glossip v. Gross, Justice Neil Gorsuch noted that the alternative method of execution must be shown not only to be feasible but “readily implemented.”
“[Bucklew] has 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,” Gorsuch wrote. “Instead of presenting the state with a readily implemented alternative method, Mr. Bucklew (and the principal dissent) point to reports from correctional authorities in other states indicating that additional study is needed to develop a protocol for execution by nitrogen hypoxia. That is a proposal for more research, not the readily implemented alternative that Baze and Glossip require.”
Justice Stephen Breyer meanwhile wrote in dissent that administering lethal injection to Bucklew will clearly violate the Eighth Amendment.
“In my view, executing Bucklew by forcing him to choke on his grossly enlarged uvula and suffocate on his blood would exceed ‘the limits of civilized standards,’” Breyer wrote, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
In addition to joining Gorsuch’s lead opinion, Justices Brett Kavanaugh and Clarence Thomas issued concurring opinions.
“I do not here prejudge the question whether the firing squad, or any other alternative method of execution, would be a feasible and readily implemented alternative for every State,” Kavanaugh wrote. “Rather I simply emphasize the Court’s statement that “we see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative.”
Justice Sotomayor also dissented separately.
Bucklew’s attorneys at Sidley Austin and Morgan Pilate did not return requests for comment.
Chris Nuelle, a spokesman for Missouri Attorney General Eric Schmit, said the state is pleased with Monday’s decision.
“The state of Missouri and the victims of Russell Bucklew’s crimes have waited 23 long years for this just and lawful sentence to be carried out,” Nuelle said in an email. “With today’s ruling, we’re one step closer to justice.”