AuthorLiester, Joshua

Russell Bucklew was sentenced to death after a string of crimes in 1996 including the murder of Michael Sanders. Bucklew suffered from a rare medical condition called cavernous hemangioma which caused blood-filled tumors to develop in and around his mouth, including in his uvula, which created breathing issues. The State of Missouri planned to execute Bucklew through lethal injection of a single drug, pentobarbital. Bucklew brought an as-applied challenge and presented expert testimony that he would experience excessive suffering due to his condition if he were to be executed as the State proposed. Nevertheless, the District Court granted summary judgment to the State and the decision was affirmed by the Eighth Circuit and the United States Supreme Court. This decision severely weakened the protections against cruel and unusual punishment guaranteed to United States citizens through the Eighth Amendment. The majority chose to mistakenly discount an alternative method of execution put forward by Bucklew and allowed the State of Missouri to take impermissible risks regarding the cruel and unusual punishment of one of its citizens. The Court should have reversed the district court's ruling to allow for a factfinder to thoroughly consider any threat of cruel and unusual punishment.


    Twenty-seven states currently permit their citizens to be sentenced to death as a form of punishment for their crimes. (1) Because "death is a punishment different from all other sanctions in kind rather than degree," the death penalty has generated voluminous litigation throughout its history in this country. (2) The criteria for who can be executed and how these executions are carried out has changed over time with the "evolving standards of decency." (3) The United States Supreme Court began weighing how to execute those sentenced to death in 1878 when the Court in Wilkerson v. Utah (4) held that a sentence of death could be carried out through a prisoner being shot. (5) Methods of execution must be balanced with the Eighth Amendment, which states, "[e]xccssive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (6) One of the latest developments in the ever-evolving matter of cruel and unusual punishment is the 2019 United States Supreme Court case of Bucklew v. Precythe. (1)

    Bucklew involved an as-applied challenge to the State of Missouri's execution procedures. (8) Russell Bucklew was sentenced to death in 1996 after a string of horrific crimes in which he attempted to shoot a child, kidnapped and raped his ex-girlfriend, and killed a man who was attempting to protect his children. (9) Bucklew exhausted all challenges to his death sentence, and the only question in this case was how Bucklew would be executed. (10) The State planned to execute him through lethal injection with a single dose of pentobarbital, which is a sedative that suppresses the central nervous system.'' It is used in small doses by medical professionals to treat certain medical conditions and is used for euthanasia by veterinarians. (12) In large doses, it is lethal. (13)

    Bucklew suffered from a rare medical condition, cavernous hemangioma, which experts testified had a high probability of causing complications with the proposed lethal injection leading to prolonged suffering. (14) Bucklew's cavernous hemangioma caused blood-filled tumors to grow in his mouth, resulting in chronic breathing difficulties. (15) In spite of medical testimony indicating that Bucklew would experience excessive pain and suffering during his execution due to his condition, the district court granted summary judgment to the State and allowed the execution to proceed under the lethal injection procedures in place. (16) The Eighth Circuit Court of Appeals and ultimately the United States Supreme Court affirmed this decision. (17)

    While this case originated out of Missouri, the decision has implications in South Dakota because South Dakota continues to utilize the death penalty, executing five people since 2007. (18) An as-applied challenge with a fact situation similar to Bucklew could arise in this state. (19) Bucklew came out of the Eighth Circuit Court of Appeals, and a case from South Dakota would likely follow a similar trajectory. (20)

    This casenote will examine how the government executes some of its own citizens and the risks states are willing to take involving the pain and suffering of these individuals. (21) It will examine the holding of Bucklew and analyze how the Court should have ruled differently on this case to protect the Constitutional right of all Americans against cruel and unusual punishment. (22) This casenote will begin with a discussion on the facts underlying Bucklew's appeal to the United States Supreme Court regarding the method of his pending execution and then explore the background law on which the Court based its decision. (23) The Analysis section will explain why the dissenters' logic should have prevailed and ultimately stopped the execution from being conducted as it was. (24)

    The gravity of the way we treat those convicted of crimes has been emphasized by the United States Supreme Court before, with Chief Justice Warren warning, "[t]he methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged." (25) It may well be that when we look back at the precedent set by Bucklew, we may not like the judgment. (26)


    Russell Bucklew was not a sympathetic defendant. (27) The atrocities which landed him on death row were extremely horrific, and no one was arguing that he should ever be a free man. (28) Bucklew was executed in 2019, twenty-three years after his 1996 crime spree. (29) Bucklew's then-girlfriend, Stephanie Ray, had informed him that she wanted to end their relationship. (30) Bucklew shared a home with Ray, and one day he found another man, Michael Sanders, in the home with Ray. (31) Upon this discovery, Bucklew became violent and viciously threatened Ray with a knife, punched her in the face, and cut her jaw. (32) Faced with terrifying continued threats from Bucklew, Ray fearfully took her children and moved into Sanders's residence. (33)

    A few short weeks later, Bucklew began a crime-filled night by stealing his nephew's car as well as taking handcuffs, duct tape, and two pistols from his brother. (34) He found Ray and stalked her to Sanders's trailer, where Sanders and Ray were inside with four children. (35) Bucklew stormed into the trailer and immediately began shooting at Sanders, who had emerged from a room carrying a shotgun. (36) Two of Bucklew's shots connected with Sanders, one of which entered his chest and tore through his lung. (37) While Sanders was still clinging to life, Bucklew approached Sanders and leveled the gun with Sanders's head. (38) However, before Bucklew pulled the trigger again, Sanders's six-year-old son appeared and Bucklew fired a shot in his direction instead. (39) The shot aimed at the child thankfully missed its mark, and Ray then stepped between Bucklew and Sanders. (40) Bucklew pistol-whipped Ray, breaking her jaw, and proceeded to handcuff her and drag her out to the stolen car. (41) He then drove her over one hundred miles to a secluded spot and subsequently raped her at gunpoint. (42) Law enforcement was able to apprehend Bucklew only after a chaotic car chase and shootout in which shots were fired at law enforcement, resulting in gunshot wounds to Ray and an officer being injured by broken glass. (43)

    While in jail awaiting trial for a slew of crimes--including the murder of Sanders, who had died from his injuries--Bucklew somehow managed to escape confinement and went on to callously attack Ray's mother and her fiance with a hammer. (44) Bucklew was recaptured and put on trial where he was convicted by a jury of first-degree murder. (45) He was also convicted of kidnapping and firstdegree burglary and was then sentenced to death. (46)

    Lengthy litigation preceded Bucklew's recent case reaching the United States Supreme Court, starting with the Supreme Court of Missouri upholding Bucklew's conviction and sentence. (47) Bucklew unsuccessfully attempted to show several trial court errors, including that Bucklew's right to remain silent was violated and that the trial court improperly found aggravating circumstances to warrant a death sentence. (48) Bucklew then filed both state and federal post-conviction proceedings seeking relief based on ineffective assistance of counsel, but his claims were denied here as well. (49)

    While this resulted in the end of Bucklew's post-conviction proceedings, there were new questions resulting in litigation regarding Missouri's lethal injection protocol that further delayed all executions in Missouri and other states as well. (50) Facial challenges to Missouri's lethal injection protocols were unsuccessful, but the State had to change its execution protocol after it could not obtain the drugs it initially sought to use in its executions. (51) After tweaking the drugs to be used and how to administer them, Missouri ultimately settled on the use of a single drug, pentobarbital, to execute its death row inmates through lethal injection. (52) The use of pentobarbital was intended to depress the inmate's central nervous system and render the inmate "deeply unconscious and insensate to pain." (53) Once the procedures were set in place, Missouri executed twenty inmates with pentobarbital prior to Bucklew's appeal. (54) Ultimately, the State of Missouri set Bucklew's execution date for May 21, 2014. (55)

    However, less than two weeks before the execution date, Bucklew brought an as-applied Eighth Amendment challenge to the execution protocol due to his specific and rare medical condition, cavernous hemangioma. (56) Bucklew suffered his whole life from this disease which caused inoperable, blood-filled...

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