By: Justin Keeton
Member, American Journal of Trial Advocacy
Since the beginning of this year, the Supreme Court has been sharply divided on the issue of the death penalty and how it relates to the Eighth Amendment’s prohibition of cruel and unusual punishment. This divide, which has resulted in the Justices openly feuding with each other, started back in February 2019 with the execution of a Muslim inmate, who was not allowed to have his Imam present with him in the execution chamber. Tensions among the members of the Court seemed to ease in March 2019 after the Court upheld the stay of execution of a Buddhist inmate unless his spiritual advisor was present in the execution chamber.
However, this sharp divide was once again made evident on April 1, 2019, when the Court vacated the stay of execution for Russell Bucklew, who alleged a medical condition that would cause him severe pain if he were executed by lethal injection. Finally, on April 12, 2019, the disagreement on the Court continued when it allowed the execution of Alabama Inmate, Christopher Price, to proceed. This divide was evident when Justice Stephen Breyer, along with the three more liberal Justices on the Court penned a furious dissent, which was released at 2:51 a.m. The dissent focused on the unfairness of the Court’s removal of stay of execution of Mr. Price, who requested to be executed by nitrogen hypoxia rather than the State’s three-drug protocol. Writing for the dissent, Justice Breyer viewed the Court’s decision as cruel and unusual punishment given the circumstances surrounding Mr. Price’s planned execution and the time he had to challenge the protocol.
Current State of the Death Penalty
The Constitution empowers the States to try and convict a defendant for a capital crime, which can deprive a person of life as a punishment. Likewise, the Eighth Amendment does not prohibit the death penalty as long as the State does not use methods that rise to the level of “cruel and unusual punishment.” To clarify, the Eighth Amendment analysis does not come into effect unless the risk of pain associated with the State’s method is “substantial when compared to a known and available alternative.” The Supreme Court has defined cruel and unusual punishment as a punishment that is intended “to add elements of terror, pain, or disgrace to the death penalty.” This definition of the Eighth Amendment means that a prisoner is not guaranteed “a painless death”, but rather only a death that is free from cruel and unusual punishment.
Under Supreme Court precedent, three factors must be present in order to successfully challenge a State’s current method of execution in favor of a proposed alternative:
- Whether an alternative method of execution is available?
- Whether the alternative method of execution is “feasible” and “readily implemented”?
- Whether the alternative procedure would “significantly reduce a substantial risk of severe pain” to the person being executed?
What is Considered an Available Alternative?
Even though a prisoner may be on death row, the individual may request a different form of execution if certain requirements are met. To clarify, the Court determined and upheld its own precedent that a death row inmate may request a different form of execution as long as the method is an available alternative. In order to identify an available alternative, the prisoner must show the requested method can be “readily implemented” rather than merely being theoretically “feasible.” The Court clarified that such a request must be “sufficiently detailed to permit a finding the State could carry it out ‘relatively easily and reasonably quickly.’”
In the case of Mr. Bucklew, the Court rejected his alternative method, nitrogen gas, because he presented what the Court viewed as “no evidence” for how the State of Missouri was to carry out the execution. In the Court’s eyes, Mr. Bucklew failed to provide the Court with an explanation for how the nitrogen gas should be administered (e.g., by using “a gas chamber, a tent, a hood, a mask, or some other delivery device . . . .”) The Court also pointed out the fact Mr. Bucklew was unable to provide evidence of whether the execution would occur by pure nitrogen or some mixture of gases. Finally, Mr. Bucklew failed to present evidence of how quickly and for how long the nitrogen gas should be introduced and how the State of Missouri might ensure the safety of the execution team, including protecting the team against the risk of gas leaks.
All of these factors were important to the Court in its decision making, especially the fact that neither Missouri nor any other State at the time had ever carried out an execution using nitrogen gas. This lack of a track record and other reasons were valid grounds for the State to deny the requested alternative. As a result of this lack of evidence, the Court denied Mr. Bucklew’s request to be executed by nitrogen gas and allowed his execution to proceed. In all cases regarding a request to change the method of execution, the burden is on the prisoner to provide answers to these “essential questions” or the removal of the stay to execution will likely be granted. However, even if a prisoner can show a readily available alternative, the individual must still show how the method would significantly reduce a substantial risk of severe pain as a result of the execution. In this analysis, a minor reduction in risk is insufficient to meet this hurdle; rather, it must be a clear and considerable difference based on facts and evidence, which cannot be speculative. In addition to the three factors above, the Court may look at the nature and timeliness of the request for stay of execution when it considers if there are grounds for the dismissal of the stay. In three of the four execution cases of this year, the Court has pointed to the timeliness of the stay execution as a factor to deny the stay.
Since the beginning of this year, the Supreme Court has been deeply divided on the issue of the death penalty and how it relates to cruel and unusual punishment. Although, the law regarding the death penalty seems settled for the time, the same cannot be said regarding a consensus among the Justices on the Court regarding the issue of the death penalty and what constitutes cruel and unusual punishment. With such differing views among the Justices, what will the future hold for prisoners seeking an alternative method of execution? Whatever the outcome may be, prisoners on death row should raise any legal challenges quickly so as not to be deemed to be using delay tactics and provide detailed answers to the questions that arise as a result of requesting an alternative form of execution.
 Dunn v. Ray, 139 S. Ct. 661, 661 (2019) [hereinafter Ray] (Kagan, J., dissenting) (mem.); Adam Liptak, Justices Allow Execution of Muslim Death Row Inmate Who Sought Imam, N.Y Times (Feb. 7, 2019), https://www.nytimes.com/2019/02/07/us/politics/supreme-court-domineque-ray.html.
 Murphy v. Collier, 139 S. Ct. 1475, 1475 (2019) (mem.).
 Bucklew v. Precythe, 139 S. Ct. 1112, 1120 (2019).
 Dunn v. Price, 139 S. Ct. 1312, 1313–1315 (2019) [hereinafter Dunn] (Breyer, J., dissenting) (mem.); Adam Liptak, Over 3 A.M. Dissent, Supreme Court Says Alabama Execution May Proceed, N.Y. Times (April 12, 2019), https://www.nytimes.com/2019/04/12/us/politics/supreme-court-alabama-execution-.html.
 Dunn, 139 S. Ct. at 1315.
 Bucklew, 139 S. Ct. at 1122.
 Id. at 1123.
 Id. at 1125 (quoting Glossip v. Gross, 135 S. Ct. 2726, 2738 (2015)).
 Id. at 1120 (Baze v. Rees, 553 U.S. 35, 107 (2008) (Thomas, J., concurring)).
 Id. at 1124.
 Id. at 1126.
 Bucklew, 139 S. Ct. at 1129.
 Bucklew, 139 S. Ct. at 1121.
 Id. at 1130.
 Id. at 1129.
 Id. at 1130.
 Id. at 1133.
 Ray, 139 S. Ct. 661, 661 (2019) (quoting Gomez v. California, 503 U.S. 653, 654 (1992) (per curiam) (“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”)); Dunn, 139 S. Ct. at 1312; Bucklew, 139 S. Ct. at 1133-34.