The Supreme Court on Monday ruled in a 5-4 decision against a death row inmate in Missouri who claimed that his execution by lethal injection would cause him “severe harm and suffering” because he suffers from a rare disease.
Russell Bucklew’s challenge marked the first major death penalty case that was argued since Justice Brett Kavanaugh replaced Justice Anthony Kennedy. Last spring, Kennedy voted with the court’s four liberals to put the execution on hold.
While the Supreme Court has broadly upheld death by lethal injection, lawyers for Bucklew argued that in his particular case, the disease, called cavernous hemangioma, is progressive and causes an “unstable blood-filled tumor to grow in his head, neck and throat,” and they concluded that if he were to undergo lethal injection he could suffer from prolonged suffocation.
Bucklew argued the state should consider death by lethal gas as an alternative.
Justice Neil Gorsuch, who wrote the opinion for the majority, emphasized that the Eighth Amendment “does not demand the avoidance of all risk of pain” in carrying out executions. He said that court precedent holds that an inmate cannot successfully challenge a method of execution unless the inmate identifies a “feasible, readily implemented” alternative that would “significantly” reduce a substantial risk of severe pain.
Bucklew had failed to “present any evidence” that the substitution of lethal gas would “significantly reduce his risk of pain,” Gorsuch said.
Gorsuch also charged Bucklew with attempting to “secure delay” of his execution for the murder of Michael Sanders in 1996 “through lawsuit after lawsuit.”
“The people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them deserve better,” Gorsuch wrote.
His opinion triggered a stinging dissent from the liberals on the bench. Justice Stephen Breyer wrote to emphasize that Bucklew was not attacking Missouri’s lethal injection protocol “categorically” but only as it applied to him because of his “unique illness.”
Breyer said that that while Bucklew had established that executing him by lethal injection risked subjecting him to “constitutionally impermissible suffering,” the majority “holds that the state may execute him anyway.”
Lawyers for the state disputed the findings of the medical expert and emphasized that Bucklew engaged in lengthy delays in fighting his death sentence. They argued that Missouri’s one drug protocol is “the most humane and effective method of execution” available and that the state has no experience with lethal gas.