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The Opinion of the Court in the Bucklew Case

On its face, the U.S. Supreme Court case of Bucklew v. Precythe, No. 17-8151, seemed to present a fairly narrow issue. The State of Missouri is generally among the best of the states in the way it carries out executions. That state has remained able to acquire the drug of choice, pentobarbital. Even so, Bucklew claimed that due to his unusual medical condition use of the barbiturate-only lethal injection method would be unconstitutionally cruel as applied to him.

The opinion of the Court by Justice Gorsuch for a bare majority not only rejects that argument, but sweeps in a lot along the way. At the beginning of the discussion of the law (i.e., part II, after the summary of facts and case) we have this remarkable paragraph:

The Constitution allows capital punishment. [Cites to Glossip and Baze and discussion of founding-era punishment and recognition of capital cases in Fifth Amendment.] Of course, that doesn't mean the American people must continue to use the death penalty. The same Constitution that permits States to authorize capital punishment also allows them to outlaw it. But it does mean that the judiciary bears no license to end a debate reserved for the people and their representatives.

That is the strongest statement of the unquestionable constitutionality of capital punishment that I have ever seen in an opinion of the Court, rather than in a concurring or dissenting opinion. It is as emphatic as the absolute statement of Justice Hugo Black (who was fond of absolute statements) nearly half a century ago in McGautha v. California.

Does that mean that states could bring back whipping, which also was common in the founding era and authorized by the same Congress that proposed the Eighth Amendment? No, there is enough leeway in originalism to recognize that a form of punishment that was "usual" in 1791 could become constitutionally "unusual" through its complete abandonment in American law. The opinion hints at that on pages 9-10.

We sometimes hear claims that the Eighth Amendment today guarantees a murderer a painless death. No: "[T]he 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." I particularly like the recognition that most people are going to suffer pain in death, so it is incongruous to wring our hands over similar degrees of pain suffered by murderers. Relatively few of us will go out with as little pain as most executed murderers feel, and that includes the executions that the press just loves to call "botched."

Cruel methods are those that "superadd" needless pain to the necessary task of carrying out the sentence.

There are some legitimate reasons may not adopt the latest and best method. First and foremost, "a State can't be faulted for failing to use lethal injection drugs that it's unable to procure through good-faith efforts."

Justices Scalia and Thomas have long asserted that the Eighth Amendment only restricts punishments intended to inflict unnecessary pain. Today's opinion refers to that position as "demand[ing] slightly more" than the Baze plurality standard. Only slightly? Then the standard is higher than I thought.

The opinion rejects any suggestion that the requirement of showing a substantially better alternative is not limited to "facial" attacks but also applies to "as applied" challenges. "As we've explained, the alternative-method requirement is compelled by our understanding of the Constitution, not by mere policy concerns." Having a radically different requirement for the two types would "invite[] pleading games."

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.
Excellent. Justice Gorsuch and a majority of the Court get it. Method-of-execution litigation is not primarily about preventing extreme pain in execution. It is primarily about increasing delay and cost.

The opinion does confirm that the alternative method need not be one authorized by state law. That means that it is conceivable that a state may have to amend its law to maintain its death penalty. In some states this could be a major problem because the opponents may have enough political strength to block an amendment even though they do not have the strength to pass a repeal. That is why New York, for example, had no death penalty in practice for a very long time even though it was on the books. The state's highest court had required a procedural amendment (wrongly, IMHO), and all it took was one house of the legislature to block the amendment.

Part III of the opinion provides more information about what kind of alternative is required. Simply alleging something general like "nitrogen hypoxia" is not enough. Proposing as the alternative a new method not yet used by any state is unlikely to be successful. Further, the alternative needs to "significantly reduce a substantial risk of severe pain.... A minor reduction in risk is insufficient...."

In the final part of the opinion, the Court notes the importance of timely enforcement and the inordinate delay that Bucklew succeeded in creating in this case. " 'Both the State and the victims of crime have an important interest in the timely enforcement of a sentence.' Hill, 547 U. S., at 584."

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. 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.

I will address the other opinions in this important case in a separate post.


One state should establish its own laboratory to manufacture execution drugs. It could indeed offset the costs of this policy by also selling the drugs to other states needing them and to the federal government. I think Oklahoma would have already resumed executions if it had chosen this way instead of trying to invent a new method.

(I thought at first that the drugs should be made by the FDA, but such policy could be reversed by a later administration, something less likely to happen in Oklahoma or another red state.)

Great news, of course, but should we really praise the Court for essentially saying :"Water is wet."?

And wasn't Hill v. McDonough supposed to be the end of all the bogus stays?

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