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Sanity and Justice Reign Supreme

The Supreme Court has upheld the planned execution of a kidnapper, rapist, and murderer.  

In November of 2018, the Supreme Court heard oral arguments in a case regarding the 8th Amendment’s Cruel and Unusual Punishment clause.

The case is Bucklew v. Precythe.

I wrote about it previously, or you can read about the case here.

Russell Bucklew was “convicted by a state court jury of murder, kidnapping, and rape, and was sentenced to death.” But this was not the end for Mr. Bucklew. “He then filed an action in federal district court alleging that execution by Missouri’s lethal injection protocol would constitute cruel and unusual punishment in violation of the Eighth Amendment as applied to him because of a unique congenital medical condition from which he suffers. According to Bucklew, lethal injection would likely cause him to hemorrhage during the execution, potentially choking on his own blood.”

Yesterday, the Twitter account, SCOTUSblog, tweeted that the Supreme Court issued a decision regarding this case.

The potential outcomes for this case boiled down to two options.

1: It is unconstitutional to execute Bucklew.

2: It is not unconstitutional to execute Bucklew.

The Supreme Court went with option 2.

The majority opinion highlights a couple of problems with deciding the case in Bucklew’s favor.

1: Bucklew made various attempts in challenging the constitutionality of lethal injection with the clear purpose of stalling the execution.  During oral arguments, the State of Missouri made this same case and it only became apparent when discussed at length by Justice Gorsuch.  Bucklew sued repeatedly, along with other litigants, every time procedures changed in the State of Missouri.  Then, only when that failed, did Bucklew decide to sue based on his own personal health problems.

2: Bucklew’s as applied legal challenge, premised upon his health problems, begs for an untenable legal standard to resolve this case.  Justice Gorsuch points to the record as it relates to Bucklew’s condition, the proposed alternative method, and the existing method of execution.

With those in mind, we’ll look at the decision.

Justice Gorsuch begins part two of the majority opinion by affirming the status of capital punishment in America. He says, “The constitution allows capital punishment.” It is implied by the Due Process clause when it says, “deprived of LIFE, liberty, or property.” It follows that one can be deprived of life WITH due process.  He then adds that the constitutionality of it does not end public debate on the subject, he says, “Of course, that doesn’t mean the American people must continue to use the death penalty. The same Constitution that permits States to authorize capital punishment also allows them to outlaw it. But it does mean that the judiciary bears no license to end a debate reserved for the people and their representatives.” This is the most reasonable stance the judiciary can have on the subject and it is one that Scalia presented in other cases on different issues.  Much of what comes before the court should be solved in the political sphere.

Justice Gorsuch then proceeds with a detailed history of execution in Colonial America with the purpose of explaining the original meaning of the term “cruel and unusual.” Gorsuch says, “What does all this tell us about how the Eighth Amendment applies to methods of execution? For one thing, it tells us that the Eighth Amendment does not guarantee a prisoner a painless death—something that, of course, isn’t guaranteed to many people, including most victims of capital crimes. Glossip, 576 U. S., at ___ (slip op., at 4). Instead, what unites the punishments the Eighth Amendment was understood to forbid, and distinguishes them from those it was understood to allow, is that the former were long disused (unusual) forms of punishment that intensified the sentence of death with a (cruel) “‘superadd[ition]’” of “‘terror, pain, or disgrace.’”

Over the centuries, states have taken it upon themselves to develop better methods of execution.  Gorsuch says that the Supreme Court has yet to hold a state’s method of execution unconstitutional.  Why? Because all states have moved, by policy choice, to create more “humane” methods.

Toward the end of the opinion, the majority comes back to the specifics of Bucklew’s case.  First, Bucklew failed to provide an alternative method that was feasible and readily implemented.  Because capital punishment is constitutional, there must always be a constitutional means of carrying it out.  If the particular method, as applied to the particular inmate, is being litigated, the inmate must propose an alternative.

Gorsuch explains,  “First, Mr. Bucklew points to several risks that he alleges could result from use of the State’s lethal injection protocol that would not be present if the State used nitrogen gas. For example, he says the execution team might try to insert an IV into one of his peripheral veins, which could cause the vein to rupture; or the team might instead use an allegedly painful “cut-down” procedure to access his femoral vein. He also says that he might be forced to lie flat on his back during the execution, which could impair his breathing even before the pentobarbital is administered. And he says the stress from all this could cause his tumors to bleed, further impairing his breathing. These risks, we may assume, would not exist if Mr. Bucklew were executed by his preferred method of nitrogen hypoxia. The problem with all of these contentions is that they rest on speculation unsupported, if not affirmatively contradicted, by the evidence in this case… Moreover, to the extent the record is unclear on any of these issues, Mr. Bucklew had ample opportunity to con-duct discovery and develop a factual record concerning exactly what procedures the State planned to use. He failed to do so—presumably because the thrust of his constitutional claim was that any attempt to execute him via lethal injection would be unconstitutional, regardless of the specific procedures the State might use.”

The majority closes with this, “Both the State and the victims of crime have an important interest in the timely enforcement of a sentence.” Hill, 547 U. S., at 584. Those interests have been frustrated in this case. Mr. Bucklew committed his crimes more than two decades ago. He exhausted his appeal and separate state and federal habeas challenges more than a decade ago. Yet since then he has managed to secure delay through lawsuit after lawsuit. He filed his current challenge just days before his scheduled execution. That suit has now carried on for five years and yielded two appeals to the Eighth Circuit, two 11th-hour stays of execution, and plenary consideration in this Court. And despite all this, his suit in the end amounts to little more than an attack on settled precedent, lacking enough evidence even to survive summary judgment—and on not just one but many essential legal elements set forth in our case law and required by the Constitution’s original meaning.”

There are two concurrences and two dissents.

Justice Thomas concurred simply to add more to the history of the cruel and unusual punishment clause and to address some claims made by Justice Breyer’s dissent.  His chief concern was that Justice Thomas’ opinion would render the 8th amendment a static prohibition.  Thomas responds by saying that the entire point of the clause is to stop the state from intentionally adding and inflicting pain.  Lethal injection is not intended to inflict pain ergo, it’s constitutional.

Justice Kavanaugh wrote separately to emphasis the ability of inmates to seek alternative methods of execution.  Basically, if the inmate is going to experience some ungodly amount of pain, the states are supposed to accept alternative means regardless of what their state law permits.

Justice Breyer’s dissent takes issue with much of the majority opinion.  He disputes the record and the conclusion drawn from it.  His main focus is on the risk of harm posed by executing Bucklew.  As discussed above, he objected to Justice Thomas’ characterization of the clause.  He closes his dissent in agreement with the majority.  He agreed that the process for hearing appeals of death penalty cases is excessive and lengthy. But the agreement ends there.  He asserts that the majority opinion actually complicates the process.

Justice Sotomayor dissents to draw our attention to a made up standard employed by the majority and by precedent.  This is the requirement that the inmate provide an alternative method of execution.  Law and policy may require it, but the constitution doesn’t.


For those of us not bound to interpret and apply the law like judges and for those of us who are free to advocate policies, one has to wonder why we even bother wasting our time with cases like these. 

It is great that we have a restrained government that must abide by certain principles. Yet our litigious society has created so much red tape that a convicted rapist, kidnapper, and murderer gets to keep appealing after all his appeals were exhausted!

If you want to argue, as Slate does, about evolving standards of decency, fine, but policy tends not to care about the bizarre exception to the rule.  The record in this case shows, almost with irony in Breyer’s dissent, that Bucklew’s life sucks anyway.  He chokes on his own blood while he sleeps anyway.  He gasps for air anyway.  He sleeps at a forty-five degree angle to avoid accidentally killing himself and he still has issues.  Look, I understand that the rights enshrined in the Bill of Rights are for the protection of the individual, but the 8th amendment applies to general conduct by the government.  This goes to Justice Thomas’ point.  Bucklew is in a unique circumstance with his health, which does not mean that the punishment is unconstitutional.  I am almost surprised that since the 8th amendment does not apply only to death penalty cases, but incarceration as well, Bucklew hasn’t claimed that his detention is unconstitutional due to his health problems.  Maybe being provided a certain bed, while constitutional for other inmates, is unconstitutional when applied to Bucklew.  Perhaps it is constitutional to make another inmate sleep on a cot, but Mr. Bucklew must have a sleep-number bed that adjusts.  I’m not seeing that in the constitution.

A much simpler conclusion can be reached by asking this question:

Does the fact that Russell Bucklew developed bizarre tumors later in life have anything to do with the fact that he has been convicted of rape, kidnapping, and murder?

Short answer: No.


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