Death Row Inmate Lethal Gas Request Gets Supreme Court Look

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By Jordan S. Rubin

A Missouri death row inmate with an “exceedingly rare disease” got the U.S. Supreme Court April 30 to consider whether he can be killed by lethal gas instead of lethal injection.

In agreeing to review the method-of-execution claim, the justices will take on the odd question of what an inmate needs to show to be executed differently from the way the state wants to do it.

The grant comes after the court agreed March 20 to stay Russell Bucklew’s execution over the dissent of four justices, including Chief Justice John G. Roberts Jr., for whom noting such disagreement with execution stays is less typical.

Roberts’s dissent—joining the more regular execution-stay-dissenters Justices Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch—suggested that Justice Anthony M. Kennedy joined the court’s four Democratic-appointees in granting Bucklew the temporary reprieve.

Oral arguments in the case should take place sometime during the court’s next term, which begins in October.

Gas, Not Needle

Bucklew was convicted in 1998 of murder, rape, and other crimes and sentenced to death.

Yet he isn’t exactly protesting the fact that he’ll be executed—he’s more concerned with how the state of Missouri seeks to go through with it.

He suffers from an “exceedingly rare disease called cavernous hemangioma,” he told the justices in his March 15 petition. The disease “is progressive, and has caused unstable, blood-filled tumors to grow in his head, neck, and throat,” he said.

Bucklew also said his peripheral veins are “compromised,” so the lethal drug “cannot be administered in the ordinary way, through intravenous access in his arms.”

Given his condition, the state’s preferred method of lethal injection would cause him an unnecessary amount of pain—so unnecessary that it would violate the Constitution’s ban on cruel and unusual punishment, he contends.

As he “struggles to breathe through the execution procedure,” Bucklew’s throat tumor “will likely rupture,” he said in the petition. The execution would “very likely be gruesome and painful far beyond the pain inherent in the process of an ordinary lethal injection execution,” he said.

So Bucklew proposed an alternative method of execution: lethal gas.

But he failed to prove his alternative method would substantially reduce his risk of needless suffering, a divided U.S. Court of Appeals for the Eighth Circuit said.

Bucklew argued to the justices that the Eighth Circuit’s ruling is based on “distinct misreadings and dangerous extensions of this Court’s decisions.”

The state’s brief opposing review, meanwhile, accused Bucklew of simply attempting to delay the inevitable.

He’s “successfully delayed his execution for a decade,” the state said.

“Bucklew will lose this suit in the end, and any further delay will only impede the victims’ and the State’s ‘significant interest in meting out a sentence of death in a timely fashion,’” it said, quoting an earlier Supreme Court case.

The case is Bucklew v. Precythe , U.S., No. 17-8151, review granted 4/30/18 .

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

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