SCOTUS Opinion: Court Rejects As-Applied Challenge To Execution By Pentobarbital

After being convicted of murder in Missouri, Russell Bucklew was set to be executed through the lethal injection of the sedative pentobarbital. He raised an as-applied challenge, arguing that he suffered from a medical condition that would result in extreme pain if he received the pentobarbital. Bucklew suggested that he be executed through nitrogen hypoxia instead, which had never been used as a method of execution before. The district court denied his challenge, and the Eighth Circuit affirmed. In Bucklew v. Precythe, the Court, in an opinion by Justice Gorsuch, affirmed, holding that the Eighth Amendment protection against cruel and unusual punishment required that Bucklew provide a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain” in order to avoid the State’s established protocol on an as-applied challenge, as well as any facial challenge. The Court further held that Bucklew had failed to show that nitrogen hypoxia met this standard, as it was an untried and untested approach that did not present a clear and considerable reduction in risk of pain. Justice Thomas filed a concurrence noting his continuing belief that the Eighth Amendment only prohibits punishments “deliberately designed to superadd pain.” Justice Kavanaugh also concurred to emphasize that the “alternative method of execution [offered by the inmate] need not be authorized under current state law” to succeed, as apparently all the justices agreed. Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented, arguing that the record showed that pentobarbital would subject Bucklew to excessive suffering due to his medical condition, and that he had no legal obligation to proffer an alternative method of execution. Justice Sotomayor lodged a separate dissent expressing her concern as to the majority’s comments about the length of time this, and other, capital punishment cases take to resolve.

A link to the opinion is here.