US Supreme Court Denies Right to Painless Death: A Critical Analysis of Bucklew v Precythe Judgment

By Teresa Dhar and Raj Krishna



On April 1, 2019, in a significant decision, the United States Supreme Court by a majority of 5-4 reiterated the fact that the Eighth amendment of the US Constitution prohibits cruel and unusual punishment altogether, but it did not guarantee any right to painless death. In this case the petitioner challenged the method of execution by the way of lethal injection. However the Apex Court dismissed this petition by relying upon two previous cases named Baze v Rees and Glossip v Gross wherein it was held that lethal injection by drugs was constitutional and did not violate the Eighth Amendment of the U.S. Constitution. Further it was also held in these cases that a challenge to capital punishment puts an onus upon inmates to show that there exists an alternative that is feasible and readily implemented which would reduce the substantial risk of severe pain.

Background of the case

In the year 1996, Russell Bucklew brutally murdered his girlfriend, her mother and the family that had given shelter and protection to his girlfriend. The brutality of the murder led to his conviction by the Missouri jury [Place of commission of offence was Missouri]. However, during the trial several states including Missouri changed the protocol for death sentence from legal gas exposure to lethal injection of drugs.

As a result several executions were stayed and only two inmates were executed in 4 years. Therefore the petitioners approached the Court contending that the petitioner’s rare condition would cause excruciating pain if executed by the lethal injection and would thereby violate the Inter-American Convention on Human Rights’ prohibition on cruel and inhuman punishment and torture.  The petitioners elaborated on how the lethal injection would cause the blood to fill his tumors and due to a rupture, he may suffocate in his own blood for up to 4 minutes.  The petitioners contended that such intense and prolonged suffering cannot be meted out by the state of Missouri as it would be in contravention to global standards of decency, reflected in international and national law the world over.

Judgment of the Court

By a majority of 5-4, the court affirmed the ruling of the United States Court of Appeals for the 8th Circuit and endorsed its precedential decisions given in Baze vs Rees and Glossip vs Gross stating that Bucklew had failed to establish a feasible and readily available method that would significantly reduce a substantial risk of severe pain.

Majority Opinion

Gorsuchdelivered the opinion of the court joined by C.J. Roberts, Alito, Thomas and Kavanaugh. J. Goruch categorically reasoned that though the Eighth Amendment forbids cruel and unusual methods of capital punishment, it does not guarantee prisoner a painless death.

Thomas unequivocally supported the legal injection method with the support of some studies, citing them to be more humane than rest of the method and drew a comparison of the 18th century methods of punishing people to the modern method to finally conclude that State, on contrary, doesn’t “attempt to devise such diabolical punishments”.

Kavanuagh in his concurring opinion agreed with J. Gorsuch that the alternative as provided by Bucklew isn’t satisfying, well-researched or guarantees a painless death to the petitioner as it leaves a lot of ambiguity about the procedure of execution.

Minority Opinion                                                      

Justice Breyer wrote the dissent, and he was joined by liberal judges Ginsburg, Sotomayor and Kagan. J. Breyer opined that in accordance to precedents, it was sufficiently shown (with evidence and testimony of the witness) by Bucklew that the state’s execution method would cause him excessive suffering and along with cases and study cited, he adduced that unlike the majority, he felt that the nitrogen hypoxia wouldn’t cause extreme suffering nor would it be a complicated procedure. He felt that asking an inmate with limited resources to research upon the alternative means was an “insurmountable hurdle” and justified the time taken to reward justice but disagrees with the majority stand that just because death penalty is constitutional doesn’t mean that the method to carry it out is so.

Sonia Sotomayor wrote a separate opinion, asserting that there are higher values than ensuring that executions run on time. She did not agree with the dismissive nature of the majority opinion stating that each request to consider capital punishment must be given a careful hearing on its own merits. She agreed that court may deny relief when the claims are mere speculative or dilatory but when there is a human life at stake; courts have a duty to search for constitutional error so as not to stain the Constitution due to a miscalculated, hurried execution.

Critical Analysis of the Judgment

On introspection this judgment passed by 5-4 majority seems erroneous. One of the major flaws that can be pointed is the irrational demand made upon the inmate to elaborate on the nitty-gritties of the alternative offered – nitrogen hypoxia.  The demand is irrational because it is impossible for a prisoner to investigate on such complex matter when under 24/7 vigilance and with little or no resources. The judgment fails to recognize the fact it has been put as an “as-applied challenge” and not a “facial challenge” and should be seen in context of the present case and focus only on the unique nature of Mr. Bucklew’s unique health condition that has led to this case.

The majority in this case failed to understand that Mr. Bucklew never argued that lethal injection was always cruel and unusual under the Eighth Amendment. Rather, he argued that it was his rare medical condition which made it unusually risky. Therefore the court in this case should have checked that how special Mr Bucklew’s case was that he should be allowed for a special exception from lethal injection. Further Mr. Bucklew during the arguments also suggested the way he should be executed [He advocated of using nitrogen asphyxiation, a process in which the inmate inhales nitrogen gas until he develops hypoxia, slips into unconsciousness and, later, dies].  His Lawyers cited research from states showing that the onset of hypoxia is typically so subtle that it is unnoticeable to the subject, causing unconsciousness in a mere 17 to 20 seconds. Still the court rejected Mr. Bucklew’s suggested alternative.

Another point that needs a mention is how nonchalantly the Conservative majority dismiss the case on the grounds of stalling justice but they seemed to be unaware of the rare nature of the case which allows delay and seemed to opine that speed of the trial is more important than the outcome of it. The majority conveniently evaded the judgment of Trop v. Dulles which held that the ban on “cruel and unusual punishments” is not limited to the ideas prevalent in the 18th century (when crimes were sometimes punished by hanging, whipping, branding etc.) – instead, it “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” In this case too, considering the health condition of the petitioner, the Supreme Court should have evolved to assess the constitutionality of the State’s method of execution.

However from the judgment, it seems that the dissenting judges sympathize with the petitioner and have made an effort to understand the underlying problem unlike the mentality of the concurring judges who seem more interested to dismiss this case as quick as possible than serve justice. The dissenting group can discern the predicament of the inmate if he is to do a comprehensive research on the alternative to the current method of execution and rightly so. The petitioner provided the state with an alternative and the court should take up a little responsibility to find out about the feasibility of it. As J Sotomayor cautiously puts, “There are higher values than ensuring that executions run on time” and that is exactly what the majority should have considered and pass a judgment based on assumptions.

[The authors are third year and fifth year B.A. L.L.B. (Hons.) students at Chanakya National Law University, Patna respectively.]

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