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SCOTUS Takes Method of Execution Case

Methods of execution are back on the docket of the U.S. Supreme Court.  This time the claim involves a generally valid method which the murderer claims would be cruel as applied to him because of his rare medical condition.  Here is what the person now claiming that pentobarbital is cruel did to four other people, according to the federal court of appeals' panel opinion:

In March 2006, Bucklew stole a car; armed himself with pistols, handcuffs, and a roll of duct tape; and followed his former girlfriend, Stephanie Ray, to the home of Michael Sanders, where she was living. Bucklew knocked and entered the trailer with a pistol in each hand when Sanders's son opened the door. Sanders took the children to the back room and grabbed a shotgun. Bucklew began shooting. Two bullets struck Sanders, one piercing his chest. Bucklew fired at Sanders's six-year-old son, but missed. As Sanders bled to death, Bucklew struck Ray in the face with a pistol, handcuffed Ray, dragged her to the stolen car, drove away, and raped Ray in the back seat of the car. He was apprehended by the highway patrol after a gunfight in which Bucklew and a trooper were wounded.

Missouri still has pentobarbital, and the single-drug method with that drug is the best method presently in widespread use.  It is routinely used in animal euthanasia.  Bucklew's claim is that could cause of "prolonged and extremely painful execution" because of his cavernous hemangioma.

After twice failing to meet the Glossip v. Gross requirement of identifying an available alternative with substantially less risk of pain, Bucklew finally made the assertion that "lethal gas" would be better, specifically "death through nitrogen gas-induced hypoxia."
Does this case squarely present the question of whether nitrogen-induced hypoxia has less risk of pain than lethal injection of a pentobarbital overdose?  No, because this case is about the unique circumstance of a person whose medical condition will alleged cause him to choke in the interval between loss of control over breathing and swallowing and the full loss of consciousness that prevents feeling pain.  The state's expert says there is no certainty that nitrogen hypoxia would be any better for this unique problem.

There are four Questions Presented, three from the petition and one added by the Court:

From the petition (written by counsel for the petitioner):

1.   Should a court evaluating an as-applied challenge to a state's method of execution based on an inmate's rare and severe medical condition assume that medical personnel are competent to manage his condition and that the procedure will go as intended?

2.  Must evidence comparing a state's proposed method of execution with an alternative proposed by an in-mate be offered via a single witness, or should a court at summary judgment look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate?

3.  Does the Eighth Amendment require an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state's proposed method of execution based on his rare and severe medical condition?

Added (and written) by the Court:

4.  Whether petitioner met his burden under Glossip v. Gross, 576 U. S. ____ (2015), to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State's method of execution.
The case is Bucklew v. Precythe, No. 17-8151

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