Risk of Choking to Death on One's Own Blood Is Not Cruel and Unusual Punishment: Bucklew v. Precythe.

• Author: Mears, Calla M.

1. INTRODUCTION

   Missouri began executing inmates in 1810 by hanging Peter Johnson, a man accused of murder. (1) Since Johnson's execution, Missouri executed 374 inmates between 1810 and 2019. (2) Hanging was the most common method of execution in Missouri until 1936. (3) Lethal gas was first used in Missouri in 1937 and became the most common execution method until 1987, when lethal injection took over as the predominant method. (4)

   Russell Bucklew is hardly the first person to challenge Missouri's lethal injection protocol--and for good reason. (5) Lethal injection has resulted in a much greater proportion of botched executions than any other execution method, at 7.12%, with 75 out of 1054 executions by lethal injection going wrong. (6) Given the high rate of botched executions, challenged lethal injection protocols deserve less deference than the United States Supreme Court has generally given them.

   Bucklew was convicted and sentenced to death in 1997 for a crime spree of murder, burglary, and kidnapping. (7) On June 25, 2019, a final warrant of execution was ordered for Bucklew. (8) The process leading to the final execution order was long, arduous, and filled with questionable judicial reasoning. Part II of this Note first walks through the factual underpinnings of Bucklew's case and the various steps of litigation that led to the instant decision. It explores Bucklew's direct appeal, the inmate class action lawsuit he joined, his habeas corpus claim, the various Eighth Circuit decisions, and the Supreme Court decision. Next, Part III outlines the background of death penalty jurisprudence, the history of execution methods in the United States, and recent challenges to lethal injection. Part IV then details the Supreme Court's holding and reasoning, the two concurring opinions, and the two dissenting opinions. Finally, Part V critiques the majority's holding and reasoning and addresses practical implications and theoretical concerns that result from the majority's decision.

2. FACTS AND HOLDING

   On March 21, 1996, Russell Bucklew followed his ex-girlfriend, Stephanie Ray, to a home in Cape Girardeau County, Missouri that she shared with her boyfriend, Michael Sanders. (9) Bucklew waited outside Ray's home for several hours, armed with duct tape, handcuffs, and pistols stolen from his brother. (10) Later that evening, Bucklew entered the home and shot Sanders to death. (11) Bucklew went on to strike Ray with a pistol, handcuff her, and throw her in his vehicle before driving away. (12) Bucklew raped Ray in his vehicle and drove until he was apprehended by law enforcement following a shootout. (13)

   In Boone County, Missouri, Bucklew was convicted of murder in the first degree, burglary in the first degree, and kidnapping. (14) The jury found two aggravating circumstances: that Bucklew committed the crimes of both burglary and kidnapping during the commission of murder. (15) The jury recommended the death sentence, and the trial court sentenced Bucklew to death. (16) Bucklew challenged his conviction and death sentence on direct appeal in 1998. (17) The Missouri Supreme Court denied all of Bucklew's claims (18) and affirmed the judgment. (19)

   1. Inmate Class Action Lawsuit

      In 2012, Bucklew was one of twenty-one Missouri death row inmates to challenge the execution protocol issued by the Missouri Department of Corrections ("MDOC"). (20) The action was originally brought as a petition for declaratory judgment and injunctive relief in the Circuit Court of Cole County, Missouri before it was removed to federal court in August 2012. (21) The new protocol "mandate[d] execution via injection of 2 g[rams] of the anesthetic propofol and 10 [cubic centimeters] of the pain-suppressant lidocaine." (22) The plaintiffs argued that the protocol violated the ban on cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution and Article I, Section 21 of the Missouri Constitution by creating a substantial and foreseeable risk of severe pain during executions. (23) After several amendments to the original complaint, the plaintiffs' claims were ultimately dismissed on May 2, 2014 for failing to state any claims upon which relief could be granted. (24) The litigation concluded on May 16, when the plaintiffs refused to correctly re-plead their Eighth Amendment claim, citing a disagreement with the court's holding that the plaintiffs would be required to propose an alternative execution method to survive the pleading stage. (25) After this unsuccessful class action litigation, Bucklew resorted to challenging his own execution under habeas corpus law. (26)

   2. Habeas Corpus Challenge

      On April 9, 2014, the Missouri Supreme Court ordered Bucklew's execution for May 21. (27) Bucklew argued in a motion that a stay of execution was necessary to determine the risks involved as applied (28) to executing him by lethal injection with the drug pentobarbital. (29) To prevail on this motion, Bucklew was required to prove that there was a substantial likelihood the use of pentobarbital would cause severe harm. (30) Further, he needed to present a feasible and readily implemented alternative method of execution. (31) Bucklew suffered a rare condition called cavernous hemangioma since infancy. (32) Cavernous hemangioma is a condition where "vascular lesions consisting of abnormally dilated blood vessels" are formed. (33) The blood vessels form "cavern-like" pockets were blood pools and then leaks due to defects in the walls of the vessels. (34) The lesions--varied in size--can cause headaches, hemorrhages, stroke symptoms, and seizures, depending on the size and location of the lesion. (35) Such symptoms subside and reappear over time because the pockets change in size as they leak and reabsorb blood. (36)

      Cavernous hemangioma of the uvula is exceedingly rare: as of 2015, only four cases have been reported in English literature. (37) Bucklew's cavernous hemangioma primarily involved his face, including his pharynx. (38) During an examination by a physician on May 12, 2014, Bucklew had a "very large vascular mass" that obstructed his airway. According to the examining physician, his "airway [was] severely compromised or obstructed due to the hemangiomas." (39) In the motion, Bucklew argued his disorder presented unique risks in an execution by lethal injection. (40)Specifically, Bucklew contended that Missouri's lethal injection method would cause him to suffer severe pain from hemorrhaging or abnormal circulation, leading to a prolonged execution or that his condition would prevent the drug from circulating properly. (41) Bucklew further claimed that MDOC knew about the risks and failed to assess them with a proper medical examination. (42)

      In response, the State argued Bucklew failed to show Missouri's use of pentobarbital in executions was "sure or very likely to cause serious illness and needless suffering" or that it would "give rise to sufficiently imminent dangers." (43) Further, the State claimed Bucklew did not sufficiently "present a specific, feasible, more humane method of execution." (44) The district court denied Bucklew's Motion for Stay of Execution, concluding that his claims failed as a matter of law. (45) In particular, the court held that Bucklew was not specific enough in his claims and therefore failed to show how the potential adverse consequences would rise to the level of unconstitutional pain. (46) The court also found that Bucklew did not suggest any feasible alternative methods of execution. (47)

   3. Eighth Circuit Decisions

      On appeal, the United States Court of Appeals for the Eighth Circuit reversed the district court's decision and granted Bucklew's motion. (48) The Eighth Circuit determined that Bucklew's medical evidence, which the State did not rebut, showed a likelihood of severe pain. (49) Further, the court held Bucklew was not required under current precedent to procure an alternative method of execution, because his case involved a "specific, medically-based, as-applied, individual challenge" to his execution method. (50) Judge Loken dissented and agreed with the court below that Bucklew did not present specific enough evidence of a risk of unconstitutional pain. (51)

      The next day, May 21, 2014, the United States Supreme Court granted Bucklew a stay of execution pending disposition of his appeal. (52) On rehearing en banc, the Eighth Circuit held that the district court was premature in dismissing Bucklew's complaint sua sponte, because it was not obvious he could not prevail. (53) The court directed the State to timely respond to Bucklew's complaint or any amended complaint. (54) Additionally, the court ordered Bucklew to timely present a "feasible, readily implemented alternative procedure that will significantly reduce a substantial risk of severe pain and that the State refuses to adopt." (55) On remand, the district court granted summary judgment in favor of the State, again holding that Bucklew did not present sufficient evidence to establish his claim. (56) Bucklew again appealed, and the Eighth Circuit affirmed the district court's decision. (57) Bucklew's execution was scheduled for March 20, 2018. (58)

   4. United States Supreme Court Decision

      The United States Supreme Court granted Bucklew's Petition for a Writ of Certiorari and affirmed the courts below. (59) Bucklew argued the Eighth Circuit's decision should be reversed because (1) it erroneously assumed the execution would go as intended; (2) it incorrectly applied the "known-and-available-alternatives requirement," which was developed for facial challenges, to Bucklew's as-applied challenge; and (3) lethal gas would substantially reduce Bucklew's risk of suffering. (60) The State argued in response that (1) Bucklew failed to raise a "known and available alternative method" of execution and failed to show that he was "sure or very likely" to undergo extreme pain from lethal injection; (2) the...