WASHINGTON — Would choking to death on one’s own blood qualify as a “cruel and unusual punishment”?
On Tuesday, the Supreme Court heard oral arguments in Bucklew v. Precythe, which pits the state of Missouri and its preferred method of execution, lethal injection, against an inmate’s rare blood disorder and his desire to die a different way.
The inmate, Russell Bucklew, a 50-year-old man convicted in 1998 of first-degree murder, suffers from cavernous hemangioma, a type of blood vessel abnormality that creates a slow-moving bloodstream and sensitive benign tumors that are susceptible to rupture. One is in Bucklew’s mouth.
Complicating matters more, the condition has constricted Bucklew’s veins, which makes inserting a poisonous IV into a fragile vein a tricky procedure for the state’s executioners and medical staff.
Bucklew doesn’t object to the execution. Instead, he has asked to die by nitrogen gas. Lethal gas is an approved method of execution under Missouri law. Nitrogen, however, has never been used for executions in Missouri or anywhere else.
But due to Bucklew’s oft-hemorrhaging mouth tumor and the state’s unwillingness to divulge the qualifications of the medical staff who would administer the complicated injection, Bucklew’s attorney, Robert Hochman, asked the justices Tuesday to block Missouri’s plan to administer the injection, and approve the “reasonable alternative,” lethal gas.
The injection would “very likely cause his execution to involve severe harm and suffering from the time they begin to gain venous access all the way through his eventual death,” Hochman said.
Chief Justice John Roberts was skeptical of the lethal gas argument, specifically the use of nitrogen, which is a novelty in state executions.
“How can it be a reasonable alternative if it’s never been used before?” Roberts asked. “One of the things we see often in the Eighth Amendment cases is the point or allegation that things can go wrong regardless of the method of execution. And it seems to me that if you have a method that no state has ever used … that danger is magnified.”
Hochman said even if Missouri administers the lethal injection correctly as planned it would lead to “severe suffering.” With lethal gas, on the other hand, “the risk is substantially lower.”
Missouri Solicitor John Sauer said the state would have certified medical personnel on hand to ensure the lethal injection was administered safely. Bucklew’s request for death-by-nitrogen is simply a stall tactic days before his execution date, he said.
“The goal is to have challenge after challenge after challenge,” Sauer said. “This is his third method of execution challenge. He had two prior challenges going back to 2012.”
Sauer said a nitrogen-induced death was a poor alternative because it’s possible that that method would increase suffering.
Justice Brett Kavanaugh, however, appeared swayed by the plaintiff’s arguments and skeptical of Missouri’s rigid defense of using lethal injection.
“Are you saying even if the method creates gruesome and brutal pain you can still do it because there’s no alternative?” Kavanaugh asked Sauer. “Your opposing counsel said, even if everything goes according to plan, there will still be significant suffering.”
A decision in Bucklew v. Precythe is expected by the end of June in 2019.