The Supreme Court has issued a stay of execution and said Monday that it will hear the appeal of a death row inmate who is likely to die, but says the way Missouri plans to do it with a one-drug lethal injection would cause him unnecessary — and unconstitutional — levels of pain.
Russell Bucklew, the inmate, says he has a medical condition and that the pentobarbital Missouri uses in its executions could lead to hemorrhaging and the chance that he would choke on his own blood during the execution.
He says that would violate the Eighth Amendment’s prohibition against cruel and unusual punishment. He has suggested, after a court’s prodding, that a nitrogen gas execution could be used instead.
The justices granted a stay of execution this year and on Monday said they would hear Bucklew’s case. They signaled that they are particularly interested in the “severity and duration of pain” involved in the gas execution versus the state’s injection procedure.
The high court has never granted an exception to the death penalty for an inmate with a physical ailment, but this case could give the justices an opportunity to do so.
“It’s part of a larger rise in the Supreme Court thinking about execution methods and thinking about the implications of these different methods in terms of the pain that people feel,” said Maurice Chammah, a staff writer with the Marshall Project who has followed death penalty cases.
Support for the death penalty among Americans is at its lowest point in decades, according to Gallup, with 55 percent saying they favor it as a punishment for murder. Twenty years ago, that figure was 80 percent.
Two members of the Supreme Court, Justices Ruth Bader Ginsburg and Stephen G. Breyer, suggested in a stunning dissent in 2015 that it may be time to re-evaluate the legality of the practice altogether.
States, meanwhile, have been searching for less painful ways to administer the ultimate punishment. They have moved over the decades from electric chair to gas chamber to lethal injection.
Robert Blecker, a professor at New York Law School, said Bucklew’s case is the end result of that trend, where lethal injection “blurs the distinction between punishment and medicine.” He suggested firing squad would be the most honest method of execution.
“It is nothing but punishment,” Mr. Blecker said.
No state uses firing squad — though Utah in 2015 enacted a law allowing it as a backup method if it has problems obtaining the drugs used in lethal injection.
Missouri, where Bucklew is on death row, allows either lethal injection or lethal gas. However, the state hasn’t killed anyone in the gas chamber for more than 50 years.
Bucklew has a condition called cavernous hemangioma, which causes weak, damaged blood vessels.
He contends that pentobarbital, the drug Missouri uses when executing inmates by lethal injection, would not circulate through his blood properly. As a result, he said, he would hemorrhage, choke on his own blood and suffocate.
“Given his condition, it doesn’t matter what kind of lethal injection — each kind of lethal injection still carries the risk,” said Robert Dunham, executive director of the Death Penalty Information Center.
Mr. Dunham said death by lethal injection was thought to be more civil than other forms of dying such as hanging, the electric chair and by firing squad, but recent studies have shown that belief to be artificial.
Joel Zivot, a board-certified anesthesiologist who testified on behalf of Mr. Bucklew, said his research suggests that prisoners burn from the inside during the lethal injection process.
“If we are going to have capital punishment, it has to be done correctly,” Dr. Zivot said.
Mr. Chammah said it’s hard to say whether the gas chamber is less painful than lethal injection, but other states have increasingly been considering it as an alternative.
Missouri argued that it could place Bucklew in a different position on the gurney during lethal injection to alleviate his choking concerns.
The Missouri Department of Corrections did not respond to a request for comment Monday.
In accepting the case, the justices asked both sides to argue whether Bucklew offered a viable answer for “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.”
Mr. Dunham said attention should be paid to those arguments.
“The U.S. Supreme Court has placed a burden on the death row prisoner to identify an alternative means to kill himself, and to most people that is at best odd,” he said. “But it’s almost something out of a horror film where a movie villain has his captive and says, ’I’m going to kill you, but you are going to tell me how.’”
Bucklew was convicted of murder, kidnapping and rape.
He stole a car in 2006 and followed his ex-girlfriend to a house where she was living. He fatally shot the homeowner and kidnapped his ex-girlfriend. He raped her in the vehicle and was later apprehended by the state highway patrol.
The Supreme Court granted a stay of Bucklew’s execution in March. His case will be heard during the court’s next session, which begins in October.
Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project, said the court has once before flirted with the form of execution of an ailing inmate, in the case of a man with terminal cancer.
His doctor contended that the tumor inside the gastrointestinal tract could cause the inmate to regurgitate his stomach contents and aspirate to death if he underwent lethal injection. The inmate died of natural causes while his case was pending.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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