On November 6, 2018, the U.S. Supreme Court will hear its first case since 2015 challenging a method of execution. In Glossip v. Gross, 135 S.Ct, 2726 (2015), and its predecessor case, Baze v. Rees, 553 U.S. 35 (2008), the Court heard facial challenges to two different lethal injection protocols, resolving whether those methods of execution should be banned in all cases under the Eighth Amendment. By contrast, Missouri death row prisoner Russell Bucklew has brought an as-applied challenge to the state’s lethal injection protocol, arguing that its use should be constitutionally prohibited in his specific case because of a rare medical condition that will cause him to experience extreme suffering during the lethal injection process.
Mr. Bucklew suffers from a condition called cavernous hemangioma, which causes the growth of inoperable, blood-filled tumors that are sensitive to changes in bodily position and blood pressure. Even rarer than the disease itself is the form affecting Mr. Bucklew, which has caused tumors to grow in his throat, impacting his ability to breathe. Mr. Bucklew’s legal team, including pro bono counsel from Sidley Austin, has argued that Missouri’s lethal injection protocol—which would require him to lie down strapped to a gurney and undergo potentially painful attempts to access his degraded veins—is likely to cause Mr. Bucklew particularly unique suffering because of his difficulty breathing while lying on his back and the likelihood that the stress from the execution process will cause the tumors to rupture.
The Court’s prior decisions in Baze and Glossip set forth the standard for challenging a method of execution under the Eighth Amendment, making clear that the relevant question is whether the method of execution poses a “substantial risk of serious harm” to the plaintiff. In Glossip, the Court further clarified that in order to successfully raise such a challenge, the prisoner must identify a “known and available alternative” method of execution that would cause substantially less suffering than the challenged method.
Mr. Bucklew argued that this requirement should not apply to as-applied challenges such as his but also proposed an alternative method of nitrogen hypoxia. This method, along with lethal injection, is expressly allowed by Missouri law, although no protocol for carrying it out is currently in place. Execution by nitrogen gas would allow him to remain upright during the entire execution process, requires no IV access, and would, at most, take 20 to 30 seconds to render him unconscious. Lethal injection, on the other hand, would likely require him to be lying down for an undetermined length of time during the process of setting an IV in his veins, which due to his medical conditions will be difficult to access. Then, according to Mr. Bucklew’s expert, the drugs could take several minutes to produce unconsciousness, during which time Mr. Bucklew may continue to suffer through rupture of the tumors, choking, and suffocation.
The lower courts rejected the nitrogen gas alternative, a critical ruling that cleared the path for dismissal of the entire challenge. The courts found that Mr. Bucklew failed to show that nitrogen hypoxia would cause substantially less suffering than lethal injection because he did not present a witness who could compare the two methods and conclude that one would cause less suffering than the other. His medical expert testified that the lethal injection process would cause Mr. Bucklew to suffer for several minutes, but the expert would not compare that with nitrogen hypoxia. The expert explained that he was ethically prohibited from opining about nitrogen gas as a “safer” alternative, because, as a doctor, he cannot recommend a method of execution. The State’s expert, however, confirmed that nitrogen gas would take effect in 20-30 seconds. Mr. Bucklew’s counsel argued that, looking at the two experts’ testimony together, a factfinder could reasonably conclude that nitrogen hypoxia will cause less suffering than lethal injection. In briefing to the Supreme Court, Mr. Bucklew argued that the lower court’s refusal to look at the record as a whole – including the testimony of both experts – was an error and inconsistent with a long line of case law from every circuit in the United States, including the Eighth Circuit, that permits a court to draw conclusions from the entirety of the evidence before it.
Mr. Bucklew’s petition also raised a question about whether the lower courts erred by denying discovery regarding the qualifications of the medical personnel on the execution team —who are given broad latitude in conducting the execution itself but who will not meet or examine Mr. Bucklew prior to the execution—and their plan for dealing with any complications resulting from his disorder. The lower courts held that discovery was not needed, assuming for purposes of the challenge that the execution process would go “as planned” and that the medical team was qualified. Mr. Bucklew argued that such an assumption is inappropriate in a situation such as this where complications are anticipated, and that discovery was needed to assess whether the team had the knowledge and training to address the problems as they occur during the execution. Mr. Bucklew conceded that it would be reasonable for a court to take steps to protect the identity of the execution team members during and after discovery, but that denying discovery on the issue altogether was improper. The State, in response, argued that the discovery sought was “irrelevant” because it concerned only the possibility of “accidents or isolated mishaps” during the execution process.
When granting certiorari, the Court certified four different questions for consideration—including one it provided itself—that cover a broad array of topics related to lethal injection challenges. Its opinion in this case is likely to set a framework for future as-applied challenges that will affect prisoners with a variety of different medical conditions. Baze and Glossip were both decided against the prisoner, with Justice Kennedy joining the conservative wing of the Court to create a 5-4 majority in Glossip. This will be the first time since Justice Kennedy’s departure that the Court will hear a challenge to a method of execution, providing a possible glimpse at the road ahead for death penalty advocates in the Supreme Court.