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This Supreme Court's Aberrant Cruelty

Robert Franklin

Posted on April 5, 2019 08:40

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What denotes "cruel and unusual punishment" as far as the Eighth Amendment is concerned? That question is at the heart of a recent Supreme Court ruling.

On Monday, the Supreme Court ruled along ideological lines that Russell Bucklew, who has been on death row in Missouri for 23 years, can be executed by lethal injection. The 5-4 decision, with a majority opinion by Justice Neil Gorsuch, takes the position that so long as a method of execution isn't being deliberately used to cause undue or excessive pain, it does not violate the Eighth Amendment to the Constitution.

The problem with this decision rests inside Russell Bucklew's body. Bucklew, who was sentenced to death in 1996, has a rare vascular condition where his body is riddled with blood-filled tumors. In his case, the tumors are on his head and in his oral cavity.

His argument is that the lethal injection procedure may be complicated by his condition and could cause him to choke to death on his own blood. Bucklew and his attorneys presented an alternative, using procedural Eighth Amendment challenges via tests set by Supreme Court decisions in Baze v. Rees and Glossip v. Gross.

Using legal precedent and medical experts, they argued Bucklew should be put to death by nitrogen gas, which the state of Missouri recognizes as an alternative to lethal injection.

But on Monday, the Supreme Court ruled that Bucklew had failed to successfully prove his position, despite his efforts and those of his team to demonstrate the suffering Bucklew would endure if he were executed by lethal injection.

To the majority, this is just a delay tactic. They bucked Supreme Court tradition of validating alternative execution methods if the standard caused undue suffering, instead taking the position that even though Bucklew's death will be slow, painful, and exceptionally cruel, a death row inmate has no valid expectation of a painless death.

But this case isn't necessarily about painless deaths. This is about giving Bucklew a chance to argue that there is a more humane way to execute him.

Bucklew's challenge is an "as applied" challenge, meaning he's personally seeking a Constitutional exception due to his specific condition. Because he has limited resources on death row, Bucklew is arguing that the evidentiary burden he must meet in proving a "known and available" alternative execution method is unconstitutional.

Further, he's arguing that the evidentiary burden in these kinds of cases should fall on the state.

Justice Gorsuch thinks otherwise, noting that no "as-applied" appeal can ever be heard under Glossip.

Without even considering the Warren Court's decision in 1958's Trop v. Dulles ("... the words of the Amendment are not precise and... their scope is not static... must draw its meaning from the evolving standards of decency that mark the progress of a maturing society"), five members of the Supreme Court have ruled that a man who literally cannot prove a more humane execution method exists in his specific case, means the state's method wins out by default.

Even if it amounts to torture.

Robert Franklin

Posted on April 5, 2019 08:40

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