The United States Supreme Court issued a decision that expressly undermines the Constitution’s protections against “cruel and unusual punishment” in the Eighth Amendment.
Russell Bucklew was convicted of murder and other crimes in Missouri about twenty years ago. He received a death sentence, and in 2014, Bucklew alleged his Eighth Amendment rights would be violated if the state executed him because he suffers from a congenital condition called cavernous hemangioma.
Bucklew’s condition is rare, but regardless, it causes “tumors filled with blood vessels to grow throughout his body, including in his head, face, neck, and oral cavity,” according to the Supreme Court Justice Stephen Breyer, who dissented.
He raised evidence that “executing him by lethal injection will cause the tumors that grow in his throat to rupture during his execution, causing him to sputter, choke, and suffocate on his own blood for up to several minutes before he dies. That evidence establishes at this stage of the proceedings that executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering.”
Yet, the majority, led by Justice Neil Gorsuch, held that the state of Missouri may execute him anyway. “In my view, that holding violates the clear command of the Eighth Amendment,” Breyer declared.
Gorsuch reasoned, “The Eighth Amendment forbids ‘cruel and unusual’ methods of capital punishment but does not guarantee a prisoner a painless death.”
“As originally understood, the Eighth Amendment tolerated methods of execution, like hanging, that involved a significant risk of pain, while forbidding as cruel only those methods that intensified the death sentence by ‘superadding’ terror, pain, or disgrace,” Gorsuch added. “To establish that a state’s chosen method cruelly ‘superadds’ pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method that would significantly reduce a substantial risk of severe pain and that the state has refused to adopt without a legitimate penological reason.”
Breyer and Justice Sonia Sotomayor roundly disputed whether this was a burden that should be placed on a person on death row, especially someone like Bucklew who articulated in detail how his execution would amount to torture.
Gorsuch argued the Supreme Court has “yet to hold that a state’s method of execution qualifies as cruel and unusual, and perhaps understandably so. Far from seeking to superadd terror, pain, or disgrace to their executions, the states have often sought” more humane and less painful execution methods.
Justice Clarence Thomas went even farther and maintained an “inmate must show that the state intended its method [of execution] to inflict such pain.”
“Thomas’ view would make the constitutionality of a particular execution turn on the intent of the person inflicting it,” Breyer countered. “But it is not correct that concededly torturous methods of execution, such as burning alive, are impermissible when imposed to inflict pain but not when imposed for a subjectively different purpose. To the prisoner who faces the prospect of a torturous execution, the intent of the person inflicting the punishment makes no difference.”
The argument from Thomas, which was apparently endorsed by the majority, hearkens back to how President George W. Bush’s administration justified the torture of detainees in the “war on terrorism.”
A notorious 2002 memo from Jay Bybee, who was the head of the Office of Legal Counsel, contended a “defendant” must “act with the specific intent to inflict severe pain” for the pain to be torture. It must be the “defendant’s precise objective.”
“If the defendant acted knowing that severe pain or suffering was reasonably likely to result from his actions, but no more, he would have acted only with general intent,” Bybee suggested. “As a theoretical matter, therefore, knowledge alone that a particular result is certain to occur does not constitute specific intent.”
In Bucklew’s case, Gorsuch, Thomas, Samuel Alito, Brett Kavanaugh, and Chief Justice John Roberts refused to believe the evidence presented and consider inferences in a manner most favorable to Bucklew, who was the “nonmovant.” (The State of Missouri requested summary judgment.)
If the majority could poke holes in Bucklew’s case that his execution would torture him, then they could say lethal injection would not be torture. So, even if his execution later amounts to torture, authorities could still maintain they had no “specific intent,” which is how the CIA argued it was not torturing detainees when they were subject to waterboarding and other techniques.
Let’s be clear about the barbaric nature of what Gorsuch argued. As Breyer outlined, “Tumors grow out of Bucklew’s lip and over his mouth, as well as on his hard and soft palates. One tumor also grows directly on Bucklew’s uvula, which has become ‘grossly enlarged’ as a result.”
“Bucklew’s tumors obstruct his airway and make it difficult for him to breathe. His difficulty breathing is chronic, but is particularly acute when he lies flat and gravity pulls his engorged uvula into his airway. He often has to adjust the positioning of his head to prevent his uvula from obstructing his breathing. He sleeps at a 45-degree angle to facilitate breathing, and he often wakes up in the middle of the night gasping for air,” according to Breyer.
His challenge to lethal injection did not argue the state of Missouri has no constitutional right to execute him. It argued the state should not do it through lethal injection because it will be “cruel and unusual punishment.”
Under Supreme Court precedent, a death row prisoner is encouraged to propose an alternative. Bucklew suggested nitrogen hypoxia. Missouri law permits this method.
But the majority contended that Bucklew did not provide ample “guidance” on the “administration of nitrogen hypoxia,” which Breyer maintained was never a burden a prisoner was expected to satisfy.
“To insist upon [such details] is to create what, in a case like this one, would amount to an insurmountable hurdle for prisoners like Bucklew,” Breyer argued. “That hurdle, I fear, could permit states to execute even those who will endure the most serious pain and suffering, irrespective of how exceptional their case and irrespective of how thoroughly they prove it.”
“I cannot reconcile the majority’s decision with a constitutional amendment that forbids all cruel and unusual punishments.”
Breyer additionally argued, “It is impossible to believe that Missouri’s legislature, when adopting lethal injection, considered the possibility that it would cause prisoners to choke on their own blood for up to several minutes before they die. Exempting a prisoner from the state’s chosen method of execution in these circumstances does not interfere with any legislative judgment.”
Bucklew provided evidence that his execution will likely be “excruciating and grotesque.” The majority indifferently concluded the state of Missouri may execute him anyway, which as Breyer pointed out essentially reduces the “categorical prohibition” of “cruel and unusual punishment” in the Eighth Amendment to a “conditional” prohibition.
However, the contempt for the Constitution did not stop there. Because the murder Bucklew was convicted of committing happened in 1996, Gorsuch expressed resentment at how Bucklew was able to pursue litigation for over two decades, when the “people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them” deserve to see him executed finally.
“By adopting elaborate new rules regarding the need to show an alternative method of execution, the majority places unwarranted obstacles in the path of prisoners who assert that an execution would subject them to cruel and unusual punishment,” Breyer asserted. “These obstacles in turn give rise to an unacceptable risk that Bucklew, or others in yet more difficult circumstances, may be executed in violation of the Eighth Amendment.”
“Given the rarity with which cases like this one will arise, an unfortunate irony of today’s decision is that the majority’s new rules are not even likely to improve the problems of delay at which they are directed.”
Or, for another perspective, Elie Mystal, a Harvard Law graduate and executive editor of Above the Law, did not mince words when he wrote about a disturbing “originalist fantasy” becoming law.
“Unknown numbers of innocent people have been executed in this country since the death penalty was reinstated,” Mystal argued. “Untold numbers of guilty people have known the spiteful vengeance some people mistake for justice. Through it all, the Eighth Amendment sits on the sidelines, a grand idea neutered by our society’s rage and cowardice, waiting for better men and women to live up to its noble promise.”
“If Ramsay Bolton were made real and installed on the U.S. Supreme Court, he would sound exactly like Neil Gorsuch in today’s opinion in Bucklew v. Precythe. While the opinion is dressed in all the civilized finery one expects from a high court decree, those trappings do not hide the savagery and cruelty animating its existence. This decision is evil, and if that seems like too strong a word for you, then I encourage you to go get fucked because your inability to speak out against horror is one of the reasons we’re being dragged back into the Dark Ages,” Mystal concluded.