WASHINGTON — In a 5-to-4 decision that revealed fault lines and considerable friction over the use of the death penalty, the Supreme Court on Monday ruled that a death row inmate in Missouri may be executed by lethal injection notwithstanding a rare medical condition that he says will cause excruciating pain. The majority accused the inmate of gamesmanship and delay. The decision made clear that feelings are still raw at the court over its 5-to-4 decision in February to allow the execution of a Muslim inmate in Alabama after his request to have his imam be present was denied, with the majority saying he should have asked sooner. Last week, the court stayed the execution of a Buddhist inmate in Texas in similar circumstances, over two noted dissents, with the majority apparently satisfied that the request had been timely. On Monday, Justice Neil M. Gorsuch, writing for the majority, said the Missouri inmate, Russell Bucklew, had waited too long to object to the way the state planned to execute him. “Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay,” Justice Gorsuch wrote. He added that the dissenting justices were “seeking to relitigate” the February decision concerning the Muslim inmate in Alabama.<doc-sep>The highest criminal justice priority of the current Supreme Court majority is apparently to make the state’s machinery of death work as efficiently as possible — and if this means some major rights violations along the way, they seemed to say on Monday, so be it. That was made evident when a bare majority of the court held that the Eighth Amendment’s prohibition on “cruel and unusual punishment” does not forbid the state of Missouri from executing a prisoner in a way that would effectively torture him to death. If that outcome seems perverse to you, you’re right. But the Roberts Court is committed to allowing states to execute people in any barbaric manner, no matter how difficult such executions are to square with the text of the Constitution. The current issue is thus: The state of Missouri has had to adjust its lethal injection protocols because drug suppliers are increasingly unwilling — as is their prerogative — to participate in a practice that is considered contrary to basic principles of human rights by most democratic nations. Missouri’s proposed solution to the lack of availability of its preferred execution drugs is a method of lethal injection would be particularly cruel to Russell Bucklew, who was convicted of murder and other crimes 22 years ago. As Justice Breyer described it in his dissent, Bucklew presented evidence that “executing him by lethal injection will cause the tumors that grow in his throat to rupture during his execution, causing him to sputter, choke and suffocate on his own blood for up to several minutes before he dies.” Bucklew, then, was not arguing that the death penalty is categorically unconstitutional, or even that the method of lethal injection used by Missouri was always unconstitutional, but that the method applied in his particular case would be “cruel and unusual” because of his particular medical condition. The majority opinion, written by Trump nominee Neil Gorsuch and joined by the other four Republican nominees, nonetheless dismissed Bucklew’s argument. According to Gorsuch, “the Eighth Amendment does not guarantee a prisoner a painless death — something that, of course, isn’t guaranteed to many people, including most victims of capital crimes.” Inflicting even excruciating pain on a prisoner in the course of executing him, therefore, does not necessarily violate the Eighth Amendment in the view of the Roberts Court. Based on the majority’s textualist reading of the Eighth Amendment, a method of execution is unconstitutional only if a form of punishment is a “long disused” one that represents a “superaddition” of “terror, pain or disgrace.” Because lethal injection has been the dominant form of execution in the United States for decades, as states mostly abandoned the more visibly brutal methods of hangings, firing squads, electric chairs and gas chambers, the disuse condition makes challenges to lethal injection almost impossible to win no matter what the consequences — which of course it the point. Gorsuch’s opinion also extends a very weak argument made by Justice Alito in Glossip v. Gross in 2015. Because of Glossip, even if a petitioner could show that a method of execution would inflict excruciating pain, the execution was constitutional unless the condemned prisoner could identify a less painful method available to the state. Gorsuch applied that standard to this case, arguing that Bucklew was required to demonstrate “a feasible and readily implemented alternative method of execution the state refused to adopt without a legitimate reason.” Because of the availability of drugs commonly used in lethal objection has become heavily restricted by the manufacturers (a function of, you know, capitalism), this effectively sets up a Catch-22 for defendants: Legal representatives must imagine alternative forms of putting their clients to death and show that they are feasible and available but the state refused to adopt them. In other words, it puts the onus on criminal defense lawyers, many of whom are dedicated to limiting the application of the death penalty, to find alternative methods of execution for the state to adopt against their clients. As Justice Sonia Sotomayor previously argued in her Glossip dissent, this argument makes very little sense. The fact that people’s moral revulsion to the death penalty makes certain forms of execution impossible for the state to carry out doesn’t render an otherwise unconstitutional execution constitutional. “A method of execution that is “barbarous,” or “involve[s] torture or a lingering death,” does not become less barbarous or torturous s just because it is the only method currently available . Even assuming, for the sake of argument, that the Constitution does not categorically forbid capital punishment as cruel and unusual punishment, it doesn’t follow from this that the state must be able to carry out clearly torturous executions because it does not have a readily available alternative to its preferred cruel method. Nor should it be the job of condemned prisoners to identify alternative methods of execution. As Breyer puts it in his dissent, “Even in the unlikely event that the state could not identify a permissible alternative in a particular case, it would be perverse to treat that as a reason to execute a prisoner by the method he has shown to involve excessive suffering.” Gorusch’s aside about how “victims of capital crimes” generally do not have a “painless death” is telling, however. While his opinion uses historical factoids and dictionary definitions to dress up its predetermined conclusion, Gorsuch is unable to hide that he’s a soldier in a culture war, not a dispassionate judge reluctantly applying the law. His opinion is filled with palpable contempt for legal challenges brought by death penalty defendants and frustration for the fact that states can’t execute people more quickly. The same contempt can also be readily seen in the recent refusal of the same five justices in today’s majority to stop a different execution, although the state’s refusal in that case to allow a condemned Muslim prisoner to have his imam be present is in flagrant violation of the First Amendment’s Establishment Clause. But compassion for crime victims should not overwhelm the precepts on which the country was founded, and making sure the machinery of execution is well-oiled by the courts is the wrong priority. As Justice Sotomayor observes in her dissent in Monday’s case, “[t]here are higher values than ensuring that executions run on time.” Ensuring that people are not tortured to death are certainly among those higher values, and had the Electoral College not selected the runner-up in the 2016 popular vote, the Supreme Court would actually have represented them again.<doc-sep>When does capital punishment become "cruel and unusual?" The Supreme Court this week, in a narrow 5-4 decision, offered a sweeping defense of the death penalty, including in cases when an inmate faces the risk of extreme pain. "The Eighth Amendment does not guarantee a prisoner a painless death," Justice Neil Gorsuch wrote for the majority in the death row appeal by Missouri convict Russell Bucklew. The amendment prohibits the infliction of "cruel and unusual punishments." Bucklew, 50, suffers from a rare condition known as cavernous hemangioma, which causes blood-filled tumors to grow on his head, face, neck and mouth. He claims a lethal injection of pentobarbital could burst the tumors, causing him to choke and suffocate on his own blood. He proposed an alternative method of execution by nitrogen gas, which has not been used in the state. "His main claim now was that he would experience pain during the period after the pentobarbital started to take effect but before it rendered him fully unconscious," Gorsuch wrote. But, he also noted that the lower courts found Bucklew "produced no evidence that his proposed alternative … would significantly reduce the risk." Gorsuch said unconstitutional punishments are those that "intensify the sentence of death with a (cruel) 'superaddition' of 'terror, pain, or disgrace.'" He ruled that Missouri's plan to execute Bucklew with pentobarbital would not. Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh joined the majority opinion. "His suit in the end amounts to little more than an attack on settled precedent," Gorsuch wrote. Bucklew was convicted in the 1996 kidnapping and rape of his ex-girlfriend; murder of her boyfriend; and shootout with police. He later escaped from jail while awaiting trial and attacked his ex-girlfriend's mother with a hammer. His decades-long legal appeals have not challenged his conviction or the constitutionality of the death sentence itself. Rather, Bucklew contends the type of drug Missouri uses for executions would cause him unreasonable pain. Missouri is one of 30 states with the death penalty. Hanging was the primary method of execution in the state until 1936 when lethal gas was added as an option, according to the Death Penalty Information Center. In 1987, the state adopted lethal injection. "The experts dispute whether Bucklew's execution will prove as unusually painful as he claims," Justice Stephen Breyer wrote in a dissenting opinion, "but resolution of that dispute is a matter for trial." "The question is not … whether a punishment is deliberately inflicted to cause unnecessary pain, but rather whether we would today consider the punishment to cause excessive suffering," Breyer said. In a separate dissent opinion, Justice Sonia Sotomayor took issue with the language in Gorsuch's opinion, warning against a rush to judgment in death penalty cases, which often get delayed for years by numerous appeals. "There are higher values than ensuring that executions run on time," Sotomayor wrote. "If a death sentence of the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness." Support for the death penalty remains near historic lows, according to recent public opinion polling. Roughly half of Americans -- 54 percent -- said they support the death penalty in a Pew Research poll released in June 2018. Thirty-nine percent said they were opposed. Three American inmates have been executed, by lethal injection, so far this year, according to the Death Penalty Information Center. In 2018, there were 25 executions nationwide.<doc-sep>
WASHINGTON (Reuters) - The U.S. Constitution does not guarantee a prisoner sentenced to capital punishment “a painless death,” a divided Supreme Court said on Monday, paving the way for the execution of a convicted murderer who sought to die by lethal gas rather than lethal injection because of a rare medical condition. FILE PHOTO: The building of the U.S. Supreme Court is pictured in Washington, U.S., March 18, 2019. REUTERS/Erin Scott/File Photo Russell Bucklew, 50, had argued that lethal injection might inflict undue agony by rupturing blood-filled tumors on his face, head, neck and throat caused by a congenital condition called cavernous hemangioma in violation of the Constitution’s Eighth Amendment, which bars cruel and unusual punishment. In a decision that exposed stark divisions among the justices on the death penalty, the court ruled 5-4 that Bucklew had failed to present enough evidence to pursue his request to be executed by lethal gas. The court’s five conservatives were in the majority and its four liberals dissented. Referring to the history of capital punishment, conservative Justice Neil Gorsuch wrote for the court’s majority that “the Eighth Amendment does not guarantee a prisoner a painless death - something that, of course, isn’t guaranteed to many people, including most victims of capital crimes.” “The state of Missouri and the victims of Russell Bucklew’s crimes have waited 23 long years for this just and lawful sentence to be carried out,” said a spokesman for Missouri Attorney General Eric Schmitt, a Republican. “With today’s ruling we are one step closer to justice.” Bucklew’s lawyers did not immediately respond to a request for comment. Monday’s ruling was in line with a 2015 decision in which the court rejected a challenge to Oklahoma’s method of execution by lethal injection. In that case, the court held that inmates challenging a method of execution must come up with an alternative option that was less painful. Bucklew failed to show that lethal gas could be “readily implemented” as required under Supreme Court precedent, the court ruled. There also was no evidence that his chosen alternative, lethal gas, would be less painful, it concluded. Gorsuch, appointed by President Donald Trump in 2017, noted that Bucklew is awaiting execution for crimes committed more than two decades ago. “Yet since then, he has managed to secure delay through lawsuit after lawsuit,” Gorsuch wrote, echoing a view often expressed by death penalty advocates. Fellow conservative Justice Samuel Alito said in 2015 that the legal challenge to Oklahoma’s method of execution case was part of a “guerilla war” against the death penalty. Bucklew was convicted of the 1996 murder in southeastern Missouri of Michael Sanders, who was living with Bucklew’s former girlfriend Stephanie Ray at the time. Bucklew fatally shot Sanders at his trailer home, kidnapped and raped Ray, shot at Sanders’ 6-year-old son and wounded a police officer before being apprehended, according to court papers. Bucklew’s appeal neither contested his guilt nor sought to avoid execution. The case did not challenge the constitutionality of the death penalty itself. The court has barred the execution of juveniles and mentally disabled people, but there are no signs that its conservative majority is inclined to find capital punishment unconstitutional. ‘VIGILANCE AND CARE’ Liberal Justice Sonia Sotomayor took issue with Gorsuch, writing in a dissenting opinion that questions about legal tactics that lead to delays are “wholly irrelevant” to the case before the court. “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,” Sotomayor wrote. When death row inmates seek last-minute stays of execution, courts should individual cases on their merits, Sotomayor said. “Our jurisprudence must remain one of vigilance and care, not one of dismissiveness,” Sotomayor added. Liberal Justice Stephen Breyer in another dissenting opinion repeated his assertion, first raised in the 2015 case, that if prisoners cannot be executed quickly without violating their rights “it may be that ... there simply is no constitutional way to implement the death penalty.” In Missouri, execution is authorized using either injection or gas but the state in practice uses only lethal injection. The high court last year blocked Bucklew’s execution on a 5-4 vote. The conservative justice who voted with the court’s four liberals to grant the stay, Anthony Kennedy, has since retired and was replaced by Trump’s appointee Brett Kavanaugh, who joined the conservative majority in Monday’s decision. Other recent cases also illustrated the court’s differences over the death penalty.