May 06, 2018
"We all of course, would like to think that we are 'moving down the road toward human decency' . . . Within the confines of this judicial proceeding, however, we have no way of knowing in which direction that road lies."
--William Rehnquist, Rummel v. Estelle (1980)
Missouri is back. It encounters the death penalty repeatedly, and its encounters serve as reminders of what a great country we live in. We are willing to endlessly discuss and litigate how best to implement the death penalty. One of our greatest attributes is that in proper circumstances (and before an execution takes place), the person with the greatest interest in the execution procedure is permitted to explain to a court why the method selected by the executioner is less desirable than the method the participant proposes. The case of Bucklew v. Precythe is a case in point. Mr. Bucklew is the plaintiff in that case.
Mr. Buklew engaged in some heinous acts, and following his arrest, was convicted of murder, kidnapping, and rape. His trial and conviction and appeals were in Missouri, and Missouri is one of the states that continues to use the death penalty as a form of punishment. For obvious reasons, Mr. Bucklew had a vested interest in understanding how the death penalty and he were going to be executed. His interest was particularly keen, because he has a unique medical condition that he and his doctors believe would result in his suffering cruel and unusual pain and suffering if he were to be executed using Missouri's lethal injection protocol. If his claim that the procedure would subject him to cruel and unusual punishment because of his medical condition is in fact true, his execution would violate the pertinent provisions of the Eighth and Fourteenth Amendments to the United States Constitution. Having lost all appeals at the state level, Mr. Bucklew went to the Federal Court of Appeals for the Eight Circuit.
In considering Mr. Bucklew's appeal, that court engaged in an extremely careful analysis of what Mr. Bucklew must demonstrate in order to compel the state to execute him in the manner he has selected, rather than the method selected by the state. To succeed in his efforts, the Court said, Mr. Bucklew must: "establish that the method [proposed by the state] presents a risk that is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers." (The Court does not discuss what kind of "serious illness" can befall someone who is being executed, since it would seem to those unfamiliar with the process, that if one is dead within a few minutes following the beginning of the procedure, "serious illness" would not be a real problem. It is also unclear what is meant by "imminent dangers" as used in the sentence just quoted.) The Court goes on to say, quoting from an earlier case, that in addition to satisfying those criteria, the prospective participant in the execution must also show that the proposed consequences of the execution procedure are "severe in relation to the pain and suffering that is accepted as inherent in any method of execution." Further, and again quoting from an earlier case, the Court says the challenger must: "identify an alternative that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain." That seems particularly compassionate, since it demonstrates that an execution may become a collaborative effort between the person being executed, and the executioner, if the person being executed proposes a method permitted under the applicable state law. In addition to lethal injection, Missouri permits the imposition of death on someone who has received a death sentence, by use of nitrogen gas. Mr. Bucklew asserted that in his particular case, with his medical condition, the executioner should kill him with nitrogen gas rather than lethal injection. (To avoid any confusion, it should be noted that the nitrogen gas (N) used in executions, differs from N20 known as "laughing gas." A person exposed to N in the execution chamber would die from asphyxiation rather than laughing. However, some studies suggest death from nitrogen may, in fact, be mildly euphoric.)
Mr. Bucklew's case demonstrates that as in any collaborative effort, there are limits. Missouri resisted Mr. Bucklew's efforts to persuade the Court of Appeals that he should be executed by nitrogen gas, and the Court of Appeals agreed with the state. In affirming the ruling of the trial court that lethal injection was appropriate for Mr. Bucklew, the Court said: "the [trial] court held that Bucklew failed to provide adequate evidence that his alternative method of execution-lethal nitrogen gas- was a 'feasible, readily implemented' alternative that would 'in fact significantly reduce a substantial risk of severe pain' as compared to lethal injection." It said Bucklew "failed to establish that lethal injection, as applied to him, constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments."
On April 30, 2018, the United States Supreme Court announced that it would consider Mr. Bucklew's claims in its upcoming term. The country will join Mr. Bucklew in eagerly awaiting the decision that will inform him (and us), of what method Missouri may use in executing him.
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