Challenging the Constitutionality of Lethal Injection “As-Applied” Under the Eighth Amendment & a Defendant’s Obligation to Provide an Alternative Means of Execution

By: Suzanne Norman

Senior Associate Editor, American Journal of Trial Advocacy

The Supreme Court of the United States will hear oral arguments next week concerning the Constitutionality of execution by lethal injection.[1] Attorneys for Russell Bucklew are expected to argue that their client should not be subject to this manner of execution based on his rare illness that, he claims, will result in “a gruesome death” for Mr. Bucklew, in violation of the Eighth Amendment to the Constitution of the United States.[2]

Grounds to Challenge an Execution

The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.”[3] In the case being heard by the Court next week, Mr. Bucklew will argue the unconstitutionality of the manner of execution “as applied,” rather than a facial challenge of the legality.[4]

One of the main issues addressed by Mr. Bucklew, in his Petition for Certiorari, is whether a defendant making an “as-applied” challenge must provide the court with an alternative means of execution.[5] Mr. Bucklew’s Petition for Certiorari notes that defendants, regardless of whether their challenges is “as applied” or facial, must provide “a feasible, readily implemented alternative procedure that will significantly reduce a substantial risk of severe pain and that the State refuses to adopt.”[6] This position adopted by the Eighth Circuit is also the rule of the Florida Supreme Court, the Eleventh Circuit, “and suggested by the Sixth Circuit.”[7] Mr. Bucklew argues that this requirement for “as applied” challenges is improper because the challenge is applicable only to that specific inmate.[8] Whereas, the reasoning behind the requirement for alternatives in a facial challenges are rooted in their potential effect on all death-row inmates.[9]

Supreme Court Precedent & Application in the Circuit Courts

In 2015, the Supreme Court reiterated that an inmate challenging the method of execution based on the Eighth Amendment must provide an alternative method of execution in order to succeed in his or her challenge.[10] This was based on the opinion delivered by the Court in Baze v. Rees, requiring that prisoners “identify a known and available alternative method for execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims.”[11]

The Eighth Circuit has used this language and approach in determining the merits of an inmate’s claim in holding that even in “as applied” challenges, the alternative method must be provided.[12] The Eleventh Circuit also cited Baze and Glossip in holding that an inmate challenging the method of execution must provide a “known and available method [ ] of execution that are feasible for use in and can be readily implemented by

Russell Bucklew’s Condition

In his argument to the Supreme Court, Mr. Bucklew outlines his specific and rare disease that is the basis of his “as applied” argument.[14] He “suffers from an exceedingly rare medical condition – cavernous hemangioma – that causes inoperable, blood-filled tumors to grow in his throat and around his face, head, and neck.”[15] Because of the rarity of Mr. Bucklew’s condition (this particular type of disease affects “.002% of the general population”), his attorneys argue that the challenge in his case should not be subject to the same criteria as the inmates who have challenged the death penalty on its face.[16]

Mr. Bucklew has argued that the lethal injection method will cause “undue agony” and suggests that he be executed by lethal gas as an alternative.[17] However, this has argument has been met by opposition, because the State asserts that “Bucklew has not provided any evidence showing that he is sure or very likely to suffer serious pain as a result of lethal injection.”[18] Further, the lower court addressed “whether using lethal gas would reduce the likelihood that Bucklew would experience pain – a fact that the court of appeals said Bucklew would need to establish with just one witness.”[19]

The Impact of a Supreme Court Decision

Constitutional challenges to the death penalty, originating from states that allow capital punishment, is nothing new. However, with the Court’s recent granting of multiple petitions for certiorari, new case law could affect inmates with particular illnesses like Mr. Bucklew, as well as other classes of inmates.[20] For example, the Supreme Court has recently weighed the merits of whether or not age and dementia are grounds for removing the death penalty as punishment in Alabama and Ohio cases.[21]

Additionally, should the Court find in favor of Mr. Bucklew’s argument that he should not be forced to provide an alternate method of execution because he has brought an “as-applied”, it will affect the current law in the Eleventh Circuit.[22] Because this specific issue will likely affect the manner in which capital punishment appellants raise their claims, it could affect a great number of those inmates currently on death row throughout the country.

[1] Amy Howe, Argument Preview: Justices to Consider Another Lethal-Injection Challenge, This Time by Inmate with Complicated Medical History, (Oct. 31, 2018).

[2] Id.

[3] U.S. Const., amend. VIII.

[4] Howe, supra note 1.

[5] Petition for a Writ of Certiorari, Bucklew v. Precythe, 138 S.Ct. 1323 (2018) No. 17-3052.

[6] Id. at 29.

[7] Id.

[8] Id. at 30.

[9] Id.

[10] Glossip v. Gross, 135 S.Ct. 2726, 2738 (2015) (stating that “[o]ur first ground for affirmance is based on petitioners’ failure to satisfy their burden of establishing that any risk of harm was substantially outweighed when compared to a known and available alternative method of execution”).

[11] Id. at 2731 (citing Baze v. Rees, 553 U.S. 35, 61 (2008)).

[12] See, e.g.,Williams v. Kelly, 854 F.3d 998 (8th Cir. 2017); Bucklew v. Lombardi, 783 F.3d 1120 (8th Cir. 2015).

[13] Boyd v. Warden, Holman Correctional Facility, 865 F.3d 853, 866 (11th Cir. 2017).

[14] Petition for a Writ of Certiorari, supra note 5, at 8-10.

[15] Id. at 8.

[16] Id. at 5, 8.

[17] Lawrence Hurley, U.S. Top Court to Hear Missouri Murder’s Lethal Injection Case, (April 30, 2018).

[18] Howe, supra note 1.

[19] Id.

[20] Adam Liptak, Supreme Court to Hear Cases on Death Penalty and Class Actions, (Apr. 30, 2018).

[21] Id.

[22] Petition for a Writ of Certiorari, supra note 5, at 7.

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