When an inmate with a rare and severe medical condition brings an as-applied challenge to a state’s method of execution, should the court assume that the execution will go as planned? And is the inmate constitutionally required to prove an alternative method of execution? Here, did Russell Bucklew meet his burden to prove the procedures of his proposed alternative method and the degree of pain he would likely suffer, and did he show how they compare to the method he challenges?
This case asks the Supreme Court to determine whether a death row inmate challenging an execution method must prove a feasible alternative execution method when the challenged method will allegedly inflict an unconstitutional level of pain as applied to the inmate’s medical condition. Russell Bucklew argues that the state should bear the burden of proving an alternative method in such an “as-applied” challenge. He reasons that because there is no risk that the challenged execution method will be outlawed in its entirety and because the state is in the best position to evaluate the effect of existing execution methods on the inmate’s medical condition, the Court should place the burden on the state. The Department of Corrections (“DOC”) argues that the inmate in an “as-applied” challenge case should bear this burden. The DOC notes that the inmate would be able to obtain an exemption from capital punishment and needlessly delay their execution by bringing meritless claims if the Court placed the burden on the state rather than on the inmate. The Supreme Court’s decision in this case will impact the ability of inmates to challenge execution methods, the administrability of common execution methods such as lethal injection, and the effect of the capital punishment process on drug regulators, physicians, and state corrections officers.
Questions as Framed for the Court by the Parties
- Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that the procedure will go as intended;
- Whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate;
- Whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition; and
- Whether petitioner Russell Bucklew met his burden under Glossip v. Gross to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution.
In March 1996, Russell Bucklew followed his former girlfriend, Stephanie Ray, to the trailer home of Michael Sanders, where she was living. Bucklew entered the trailer and shot Sanders. While Sanders bled to death, Bucklew handcuffed Ray, dragged her into his car, and drove away. Bucklew then raped Ray in the backseat of the car. The highway patrol apprehended Bucklew following a gunfight. In 1998, a Missouri state court convicted Bucklew of murder, kidnapping, and rape, and then sentenced him to death. The Supreme Court of Missouri issued an order scheduling Bucklew’s execution by lethal injection for May 21, 2014.
On May 9, 2014, Bucklew filed a lawsuit in federal court under 42 U.S.C. § 1983 against Anne Precythe and other personnel with the Missouri Department of Corrections, alleging that execution by Missouri’s lethal injection protocol would constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments because of his unique medical condition. Specifically, Bucklew suffers from congenital cavernous hemangioma, a type of blood vessel malformation in which clumps of weakened blood vessels form tumors that are locally invasive and destructive. Bucklew alleged that his condition would cause hemorrhaging or abnormal circulation of the lethal drug, which would create a substantial risk of suffocation and extreme pain.
The federal district court dismissed Bucklew’s claim because he failed to identify a feasible alternative execution method that significantly reduces a substantial risk of severe pain, as required by the United States Supreme Court in Glossip v. Gross and Baze v. Rees. Glossip v. GrossBaze v. Rees The Supreme Court granted a stay of execution pending an appeal. Bucklew appealed to the United States Court of Appeals for the Eighth Circuit, which remanded the case to the district court to give Bucklew an opportunity to propose an alternative method. Bucklew proposed execution by lethal gas. However, the district court concluded that Bucklew failed to provide adequate evidence showing that this method would significantly reduce a substantial risk of severe pain, as compared to lethal injection. The court granted summary judgment for the Department of Corrections (“DOC”).
On appeal from the district court’s grant of summary judgment, the Eighth Circuit affirmed on March 6, 2018. The Eighth Circuit pointed to testimony from the DOC’s expert witness, who opined that lethal injection and lethal gas result in unconsciousness in the same amount of time. The Eighth Circuit noted that Bucklew failed to provide comparative expert testimony to the contrary. The court also held that it was proper to deny Bucklew the opportunity to inquire into qualifications of the medical technicians carrying out the execution because an evaluation of an Eighth Amendment challenge to an execution method assumes that those carrying out the execution are competent and qualified.
The United States Supreme Court granted Bucklew’s petition for writ of certiorari on April 30, 2018.
OBJECTIVE RISKS OF THE INMATE’S MEDICAL CONDITION
Russell Bucklew contends that when an inmate who suffers from a medical condition challenges the constitutionality of an execution method as it is applied to him, the court must consider the objectively known risks that arise because of the medical condition. He argues that when the Court fails to consider these risks, it converts the as-applied challenge into an attack on the execution protocol itself. According to Bucklew, when these risks are not taken into account, the court assumes that the execution will go “as intended.” But this assumption, Bucklew maintains, ignores the core of the inmate’s challenge—that his particular medical condition creates unique circumstances guaranteeing that his execution will not go as planned.
Bucklew further argues that the Court’s failure to consider the objectively known risks violates the Eighth Amendment. He maintains that when state officials know an inmate suffers from a serious medical condition that makes him “uniquely likely to suffer gratuitous suffering” under the standard execution protocol, deciding to proceed with that protocol constitutes cruel and unusual punishment. Bucklew contends that although unforeseeable accidents that arise in the course of an execution do not pose a constitutional problem, the same is not true for predictable failures. According to Bucklew, state officials can objectively evaluate, in advance, the risks raised by the interaction between the execution protocol and the unique circumstances of the inmate’s medical condition.
In light of this, Bucklew argues that an inmate who knows that he suffers from a complicating medical condition is entitled to discovery to “test the experience, knowledge, and training” of the execution team’s medical members. Such discovery, Bucklew contends, would reveal how predictable a “botched” execution attempt would be. Bucklew maintains that allowing discovery on this issue is consistent with Federal Rule of Civil Procedure 26(b)(1).
The Department of Corrections, on the other hand, argues that the Eighth Circuit properly assumed that Bucklew’s execution would go as intended. The DOC asserts that absent evidence to the contrary, a court must assume that the DOC will carry out an execution in a constitutional manner. The DOC contends that any botched execution attempts are nothing more than “isolated mishaps.” Such mishaps, the DOC claims, do not violate the Eighth Amendment because they do not suggest cruelty. The DOC maintains that the challenged execution method includes sufficient safeguards to protect against an unconstitutional risk of harm.
Next, the DOC argues that discovery into the medical team’s training is relevant only to show that mishaps might occur during the execution. But mere mishaps, the DOC contends, do not violate the Eighth Amendment. Further, the DOC asserts that Bucklew’s discovery request is irrelevant because he did not argue that different medical training would diminish his risk of pain and suffering. Moreover, the DOC maintains that Bucklew’s assertion that additional discovery would demonstrate that he will suffer from botched execution attempts is speculative and contrary to the record. As such, the DOC argues that additional discovery would be disproportionate to the needs of the case.
Bucklew argues that the known-and-available-alternatives requirement that is applicable in facial challenges to execution methods is not relevant in the context of as-applied challenges. The requirement, he contends, serves two primary concerns. First, Bucklew asserts, in the absence of an alternative method, a facial challenge could deprive the government of the only available means of carrying out capital punishment. Second, Bucklew notes, because there is a risk of pain in any execution, a comparative method is necessary to determine if the execution technique at issue is indeed “cruel and unusual.”
Bucklew avers, however, that neither of the two concerns is present in the context of as-applied challenges. First, despite the outcome of an inmate’s as-applied challenge, Bucklew points out that the state remains able to use the challenged execution protocol with other inmates. Additionally, in other contexts, Bucklew notes the Court has analogously recognized that the Eighth Amendment may prohibit executing particular individuals—such as the mentally disabled—altogether, without threatening capital punishment itself. Second, Bucklew maintains that the constitutional challenge in as-applied cases is not that the execution method itself is cruel and unusual, but rather that it is cruel and unusual to use the method on a particular inmate, with a known vulnerability to gratuitous suffering. Bucklew asserts that indifference to an inmate’s vulnerability is unconstitutionally cruel regardless of whether he has identified an alternative execution method.
In response, the DOC argues that inmates who raise as-applied challenges to execution methods must plead and prove an alternative, feasible method. The DOC notes that the alternative-method requirement is a substantive element in all Eighth Amendment method-of-execution claims and that the Court has not previously distinguished between facial and as-applied claims.
The DOC next contends that the principle that there must be an available means to carry out capital punishment is a relevant concern in as-applied challenges—the state must have a way to execute every individual inmate who has been sentenced to death, even if he has a serious medical condition. Further, the DOC claims that the alternative-method requirement is more than a comparator for evaluating whether a particular execution method is cruel and unusual because it also guides the determination of whether state officials were subjectively culpable in adopting their chosen method. This determination is critical, the DOC maintains, because the Eighth Amendment forbids “the deliberate infliction of pain for the sake of pain.” ). Thus, the DOC argues that if there is no alternative execution method available to state officials, then they lack a subjectively culpable state of mind in selecting the challenged method. The DOC further asserts that excluding the alternative-method requirement from as-applied challenges would make such challenges easier to plead and prove, and consequently would encourage inmates to raise meritless claims.
LETHAL GAS AS AN ALTERNATIVE TO LETHAL INJECTION
Bucklew argues that even if the Court imposes the known-and-available alternative requirement in as-applied cases, he has pled and proven the existence of a feasible and available alternative that substantially reduces the risk of suffering he will face. He further contends that in determining whether he met this requirement, it is proper for the Court to consider the record holistically.
Bucklew asserts that he met the evidentiary burden to defeat the DOC’s motion for summary judgment because the DOC did not deny that lethal gas was a readily available and feasible alternative method. Beyond identifying this alternative method, Bucklew claims, there is no legal obligation for him to detail the specific procedures that would be used in the implementation of the alternative method. Further, Bucklew argues that he demonstrated that the alternative method would significantly reduce his risk of pain because he presented evidence that lethal gas would not induce prolonged suffocation.
In opposition, the DOC argues that Bucklew failed to identify a known, available, readily feasible method of execution with sufficient specificity. As an initial matter, the DOC asserts that it did not concede that lethal gas is a readily available and feasible method, but rather that it repeatedly disputed this issue in the proceedings below. Further, the DOC contends that merely stating that lethal gas is an alternative, without more, is not enough—although gas is a tool that can be used to carry out an execution, the gas itself is not a “method” of execution. Without additional details about the procedure and its administration, the DOC maintains, it cannot assess the risk of pain associated with a lethal gas execution.
In addition, the DOC argues that Bucklew failed to prove that the lethal gas method would significantly reduce his risk of pain. The DOC claims that even if breathing lethal gas does not create a sense of suffocation, that fact is irrelevant because neither does lethal injection. As such, the DOC contends that the only relevant question is whether and how quickly each method would make Bucklew unconscious. The DOC additionally asserts that to prove that its execution method violates the Eighth Amendment, Bucklew must demonstrate that the DOC has no legitimate penological justification for adhering to its method. The DOC maintains that it adheres to its method because it is considered humane and effective, while other states have yet to thoroughly test or practice Bucklew’s alternative.
PROCEDURAL BARS ON BUCKLEW’S CLAIMS
Bucklew asserts that the limitations period did not begin to run at the time the DOC alleges because his request for funding was denied. He argues that he did not obtain the factual basis for his claim until April 2014, when he had an expert examine his medical records. Further, Bucklew contends that the deadline to amend the pleadings in the Zink case preceded the date on which his medical condition was professionally examined. He also maintains that an as-applied challenge differs from a facial challenge both legally and factually, and thus he properly raised it in a separate action.
The DOC argues that Bucklew’s complaint is barred by the statute of limitations and res judicata. The DOC claims that the claim is barred because Bucklew did not raise it until six years after filing an application for funds, thereby exceeding the applicable five-year limitation period. The DOC maintains that Bucklew possessed the evidence necessary to raise his claim within the five-year period. The DOC next asserts that Bucklew’s claim is barred because he challenged the facial validity of Missouri’s lethal injection protocol in Zink v. Lombardi, but failed to plead his as-applied claim at that time. It argues that Bucklew knew of the factual basis for his claim from the beginning of the Zink litigation, yet never sought to add the claim to that suit.
SHOULD COURTS TREAT “FACIAL” AND “AS-APPLIED” CHALLENGES TO THE DEATH PENALTY DIFFERENTLY?
The American Civil Liberties Union, in support of Bucklew, distinguishes between “facial” and “as-applied” challenges to the death penalty, and argues that the burden of proving a feasible alternative execution method in an “as-applied” case should fall on the state. In a “facial” execution case, the ACLU contends, the inmate argues that an execution method will inflict an unacceptable level of pain as applied to any person. According to the ACLU, the inmate must demonstrate an alternative method because the challenged method will be outlawed in its entirety if he succeeds. On the other hand, the ACLU claims, an inmate in an “as-applied” execution case argues that an execution method will inflict an unacceptable level of pain as applied to his unique medical condition. The ACLU asserts that the method will only be outlawed as applied to the inmate if he succeeds. The ACLU argues that the burden of proposing an alternative execution method in an “as-applied” case should fall on the state because the state has superior knowledge about acceptable alternative methods that would end the inmate’s life without undue pain and suffering.
Moreover, attorneys Megan McCracken and Jennifer Moreno (“Attorneys”), in support of Bucklew, contend that courts should allow an “as-applied” challenger to conduct broader discovery into the execution personnel’s ability to properly conduct the execution than a “facial” challenger. Whereas courts in “facial” challenges are wary of encroaching on the role of state legislatures by allowing broad discovery into the scientific basis of state-approved execution methods or the competency of execution staff, the Attorneys argue, courts in “as-applied” cases conduct a much narrower inquiry. The Attorneys note that evidence such as medical records, expert testimony, and targeted discovery provides a concrete and compact factual basis on which the court evaluates the claim.
Texas, Alabama, and other states (“States”), in support of Precythe, argue that shifting the burden to the state to prove a feasible alternative execution method places an undue procedural burden on states implementing the death penalty. In theory, according to the States, every inmate is medically unique, and would therefore be able to make an “as-applied” challenge to an execution method. As a result, the States claim, inmates would protract litigation by continually challenging the state’s alternative methods, handicapping states’ ability to administer capital punishment. Additionally, the States assert that the courts would be tasked with determining “best practices” for executions, which is properly the purview of state legislatures. Alternatively, Arizona Voice for Crime Victims and Melissa Sanders (“Arizona Voice”), in support of Precythe, argue that courts should focus on exercising equitable authority to protect crime victims against inmates’ repeated attempts to manipulate judicial process. Arizona Voice contends that courts should dismiss lawsuits that aim to prevent the timely enforcement of a death sentence.
Ethical and Regulatory Implications for Execution Personnel, Drug Regulators, and Testifying Physicians
Former corrections officials (“Officials”), in support of Bucklew, argue that Bucklew’s medical condition presents an intolerably high risk of a botched lethal injection that would inflict substantial physical harm on him and psychological trauma on the witnesses and execution personnel. The Officials note that even successful lethal injections impart psychological burdens on execution staff, including depression, dissociation, and post-traumatic stress disorder. The Officials argue that the risk of these psychological disorders is heightened when the inmate’s medical condition creates a substantial likelihood of a botched lethal injection, which may result in medical staff ineffectually puncturing the inmate’s veins for hours before the state finally calls off the execution. The Officials assert that the risk is increased further when the execution staff has no knowledge of the inmate’s medical condition and no reasonable plan to address it.
Pharmacy, medicine, and health policy experts (“Experts”), in support of Bucklew, further argue that unnecessarily lending support to the idea that lethal injection is the only available execution method harms public health by undermining drug distribution regulations. The Experts argue that states which are unable to lawfully acquire controlled substances for lethal injections often resort to alternative means, such as using overseas sellers and enacting secrecy laws to shield their unlawful drug acquisitions from regulatory view. The Experts also note that these dangerous drugs can then fall into the stream of commerce and into the hands of patients.
The American Medical Association (“AMA”), in support of neither party, argues that physician testimony about which execution method would reduce physical suffering is unethical because it constitutes physician participation in capital punishment. The AMA states that the medical profession has traditionally prohibited the participation of physicians in capital punishment proceedings because it falsely suggests to society that capital punishment can be carried out humanely merely with a doctor’s endorsement. The AMA also notes that such participation undermines the professional trust between doctors and their patients. The AMA argues that a physician is therefore prohibited from helping a court determine whether one execution method is more painful than another by testifying about the comparative levels of pain associated with each method.
- Garrett Epps, The Machinery of Death is Back on the Docket, The Atlantic (Sept. 18, 2018).
- Tanya Albert Henry, AMA to Supreme Court: Doctor Participation in Executions Unethical, American Medical Association (Aug. 22, 2018).