Supreme Court of the United States

“ It may be that there is no way to execute a prisoner quickly while affording him the protections that our Constitution guarantees to those who have been singled out for our law’s most severe sanction. ”

“ Consider an example. Suppose an inmate claims that the State’s lethal injection protocol violates the Eighth Amendment when used to execute anyone with a very common but not quite universal health condition. Should such a claim be regarded as facial or as-applied? In another context, we sidestepped a debate over how to categorize a comparable claim—one that neither sought “to strike [the challenged law] in all its applications” nor was “limited to plaintiff’s particular case”—by concluding that “ [t] he label is not what matters.” ”

“ The plaintiffs in Glossip undertook an across-the-board attack against the use of a particular execution method, which they maintained violated the Eighth Amendment categorically. In this case, by contrast, Bucklew does not attack Missouri’s lethal injection protocol categorically, or even in respect to any execution other than his own. Instead, he maintains that he is special; that he suffers from a nearly unique illness; and that, by virtue of that illness, Missouri’s execution method will be excruciatingly painful for him even though it would not affect others in the same way. ”

“ The people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them deserve better. Even the principal dissent acknowledges that “the long delays that now typically occur between the time an offender is sentenced to death and his execution” are “excessive.” Post, at 16. The answer is not, as the dissent incongruously suggests, to reward those who interpose delay with a decree ending capital punishment by judicial fiat. Post, at 18. Under our Constitution, the question of capital punishment belongs to the people and their representatives, not the courts, to resolve. ”

“ Because there is no evidence that Missouri designed its protocol to inflict pain on anyone, let alone Russell Bucklew, I would end the inquiry there. Nonetheless, I join the Court’s opinion in full because it correctly explains why Bucklew’s claim fails even under the Court’s precedents. ”

“ Bucklew offers. The dissent insists that some forms of execution are just categorically cruel. Post, at 10–11. At first and like others who have made this argument, the dissent offers little more than intuition to support its conclusion. Ultimately, though, even it bows to the necessity of something firmer. If a “comparator is needed” to assess whether an execution is cruel, the dissent tells us, we should compare the pain likely to follow from the use of a lethal injection in this case with the pain-free use of lethal injections in mine-run cases. ”

“ Given the majority’s ominous words about late-arising death penalty litigation, ante, at 29–30, one might assume there is some legal question before us concerning delay. Make no mistake: There is not. The majority’s commentary on once and future stay applications is not only inessential but also wholly irrelevant to its resolution of any issue before us.
The majority seems to imply that this litigation has been no more than manipulation of the judicial process for the purpose of delaying Bucklew’s execution. ”

“ But the Eighth Amendment is the supreme law of the land, and the comparative assessment it requires can’t be controlled by the State’s choice of which methods to authorize in its statutes. In light of this, we see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative—assuming, of course, that the inmate is more interested in avoiding unnecessary pain than in delaying his execution. ”

“ Unless increasing the delay and cost involved in carrying out executions is the point of the exercise, it’s hard to see the benefit in placing so much weight on what can be an abstruse exercise.
Finally, the burden Mr. Bucklew must shoulder under the Baze–Glossip test can be overstated. An inmate seeking to identify an alternative method of execution is not limited to choosing among those presently authorized by a particular State’s law. Missouri itself seemed to acknowledge as much at oral argument. ”

“ Bucklew’s submission, thus, amounts to no more than a headlong attack on precedent.
Mr. Bucklew’s argument fails for another independent reason: It is inconsistent with the original and historical understanding of the Eighth Amendment on which Baze and Glossip rest. As we’ve seen, when it comes to determining whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment “superadds” pain well beyond what’s needed to effectuate a death sentence. ”

“ The majority responds to these delays by curtailing the constitutional guarantees afforded to prisoners like Bucklew who have been sentenced to death. By adopting elaborate new rules regarding the need to show an alternative method of execution, the majority places unwarranted obstacles in the path of prisoners who assert that an execution would subject them to cruel and unusual punishment. These obstacles in turn give rise to an unacceptable risk that Bucklew, or others in yet more difficult circumstances, may be executed in violation of the Eighth Amendment. ”

“ Utah, 99 U. S. 130 (1879) , permitted an execution by firing squad while observing that the Eighth Amendment forbade the gruesome methods of execution described by Blackstone “and all others in the same line of unnecessary cruelty.” Id., at 135–136. A few years later, the Court upheld a sentence of death by electrocution while observing that, though electrocution was a new mode of punishment and therefore perhaps could be considered “unusual,” it was not “cruel” in the constitutional sense: “ [T] he punishment of death is not cruel, within the meaning of that word as used in the Constitution. ”

“ In England, these aggravated forms of capital punishment were “‘superadded’” to increase terror and disgrace for “‘very atrocious crimes,’” such as treason and murder. See Baze, supra, at 96–97 (quoting 4 Blackstone *376) . The founding generation ratified the Eighth Amendment to reject that practice, contemplating that capital punishment would continue, but without those punishments deliberately designed to superadd pain. ”

“ Third, the troubling implications of today’s ruling provide the best reason for declining to extend Glossip’s “alternative method” requirement. The majority acknowledges that the Eighth Amendment prohibits States from executing prisoners by “‘horrid modes of torture’” such as burning at the stake. Ante, at 10. But the majority’s decision permits a State to execute a prisoner who suffers from a medical condition that would render his execution no less painful. Bucklew has provided evidence of a serious risk that his execution will be excruciating and grotesque. ”

“ The only sound approach is for courts to continue to afford each request for equitable relief a careful hearing on its own merits. That responsibility is never graver than when the litigation concerns an impending execution. ”

“ The majority finds Bucklew’s evidence inadequate in part because, in the majority’s view, it does not show that nitrogen hypoxia will “significantly reduce” Bucklew’s risk of pain as compared with lethal injection. Ante, at 23. But the majority does not dispute the evidence suggesting that nitrogen hypoxia would be “quick and painless” and would take effect in 20 to 30 seconds. The majority instead believes that “nothing in the record” suggests that lethal injection would take longer than nitrogen gas to take effect. ”

“ The majority believes that Bucklew failed to present evidence “on essential questions” such as whether the nitrogen should be administered “using a gas chamber, a tent, a hood, [or] a mask;” or “in what concentration (pure nitrogen or some mixture of gases) ” it should be administered; or even how the State might “protec [t the execution team] against the risk of gas leaks.” Ante, at 21.
Perhaps Bucklew did not provide these details. But Glossip did not refer to any of these requirements; today’s majority invents them. ”

“ Bucklew (and the principal dissent) point to reports from correctional authorities in other States indicating that additional study is needed to develop a protocol for execution by nitrogen hypoxia. See App. 697 (Oklahoma grand jury report recommending that the State “retain experts” and conduct “further research” to “determine how to carry out the sentence of death by this method”) ; id., at 736 (report of Louisiana Dept. of Public Safety & Corrections stating that “ [r] esearch... is ongoing” to develop a nitrogen hypoxia protocol) . ”

“ Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.
↑ A skewed view of the facts caused the majority to misapply these principles and misuse its “equitable powers,” see ante, at 30, and n. 5, in vacating the Court of Appeals’ unanimous stay in Dunn v. Ray, 586 U. S. ___ (2019) . Even today’s belated explanation from the majority rests on the mistaken premise that Domineque Ray could have figured out sooner that Alabama planned to deny his imam access to the execution chamber. ”

“ Bucklew’s tumors obstruct his airway and make it difficult for him to breathe. His difficulty breathing is chronic, but is particularly acute when he lies flat and gravity pulls his engorged uvula into his airway. He often has to adjust the positioning of his head to prevent his uvula from obstructing his breathing. He sleeps at a 45-degree angle to facilitate breathing, and he often wakes up in the middle of the night gasping for air. ”

“ At oral argument in this Court, the State suggested that the firing squad would be such an available alternative, if adequately pleaded. Tr. of Oral Arg. 63–64 (“He can plead firing squad.... Of course, if he had... pleaded firing squad, it’s possible that Missouri could have executed him by firing squad”) . ”

“ Bucklew nor the dissent even attempts to address.
Take this one. A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications. So classifying a lawsuit as facial or as-applied affects the extent to which the invalidity of the challenged law must be demonstrated and the corresponding “breadth of the remedy,” but it does not speak at all to the substantive rule of law necessary to establish a constitutional violation. Citizens United v. ”

“ Last-minute stays should be the extreme exception, not the norm, and “the last-minute nature of an application” that “could have been brought” earlier, or “an applicant’s attempt at manipulation,” “may be grounds for denial of a stay.” ”

“ This time, a panel of the Eighth Circuit affirmed. The panel held that Mr. Bucklew had produced no evidence that the risk of pain he alleged “would be substantially reduced by use of nitrogen hypoxia instead of lethal injection as the method of execution.” 883 F. 3d, at 1096. Judge Colloton dissented, arguing that the evidence raised a triable issue as to whether nitrogen gas would “render Bucklew insensate more quickly than pentobarbital.” ”

“ Justice Sotomayor has likewise explained that the firing squad is an alternative method of execution that generally causes an immediate and certain death, with close to zero risk of a botched execution. ”

“ Courts examine the stay applicant’s likelihood of success on the merits, whether the applicant will suffer irreparable injury without a stay, whether other parties will suffer substantial injury from a stay, and public interest considerations. ”

“ As Judge Colloton pointed out in dissent below, attacks on the “reliability and credibility of Dr. Zivot’s opinion,” including “his possible misreading of the horse study on which he partially relied,” give rise to factual disputes. ”

“ Zivot’s testimony and says it means Mr. Bucklew could experience pain during the entire time between injection and death. Post, at 6, 13 (quoting App. 222) . But the dissent clips the relevant quotation. As the full quotation makes clear, Dr. Zivot claimed that Mr. Bucklew might be unable to “maintain the integrity of his airway” until he died—but he carefully avoided claiming that Mr. Bucklew would be capable of feeling pain until he died. [3] To avoid this problem, the dissent quotes Dr. Zivot’s assertions that pentobarbital might not produce “‘rapid unconsciousness’” and that Mr. ”

“ The proper role of courts is to ensure that method-of-execution challenges to lawfully issued sentences are resolved fairly and expeditiously. Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay. ”

“ To the contrary, our precedent suggests just the opposite. In the related context of an Eighth Amendment challenge to conditions of confinement, we have seen “no basis whatever” for applying a different legal standard to “deprivations inflicted upon all prisoners” and those “inflicted upon particular prisoners.” Wilson v. Seiter, 501 U. S. 294, 299, n. 1 (1991) .
Here’s yet another problem with Mr. Bucklew’s argument: It invites pleading games. The line between facial and as-applied challenges can sometimes prove “amorphous,” Elgin v. ”

“ When pressed, however, he referenced a study on euthanasia in horses. He claimed that the horses in the study had displayed some amount of brain activity, as measured with an electroencephalogram (or EEG) , for up to four minutes after they were given a large dose of pentobarbital. ”

“ Fed. Rule Civ. Proc. 56 (a) ; see also Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 248 (1986) . On review, we examine the record as a whole, which includes “depositions, documents, [and] affidavits or declarations.” Rule 56 (c) . And we must construe the evidence in the light most favorable to Bucklew and draw every justifiable inference in his favor. See Tolan v. Cotton, 572 U. S. 650, 651 (2014) (per curiam) .
A
Bucklew has easily established a genuine issue of material fact regarding whether an execution by lethal injection would subject him to impermissible suffering. ”