A Missouri death-row inmate with a rare condition will argue before the U.S. Supreme Court this week that the state’s lethal-injection method is unconstitutional as it applies to his circumstances.

The case could result in a ruling that is narrowly tailored to address only his case — or so wide as to unload the burden of other inmates to show that their states’ method of execution would violate the 8th Amendment prohibition against cruel and unusual punishment.

The case centers on Russell Bucklew, 50, who was sentenced to death after being convicted in 1998 of first-degree murder, kidnapping, burglary, forcible rape and armed criminal action. He was convicted for stalking and raping a former girlfriend, killing her new boyfriend and wounding a police officer two years earlier.

Bucklew suffers from cavernous hemangioma, a congenital, progressive disease that causes unstable, blood-filled tumors to grow in his head, neck and throat.

According to his petition seeking the court’s review, less than 0.2 percent of the general population have the condition. Less than 1 percent of those cases include tumors in and around the mouth of the affected person.

The condition is so rare, his attorneys say, that Missouri never has executed an inmate with cavernous hemangioma, and there’s no reason to believe any of the members of his execution team ever would have seen a patient with the same condition.

Bucklew’s attorney, Robert Hochman of Sidley Austin in Chicago, wrote that the tumors easily rupture and bleed, and a tumor in Bucklew’s throat often blocks his airway.

Hochman wrote that Bucklew is likely to experience the excruciating pain of prolonged suffocation from the obstruction of his airway during the execution, as well as the likely rupture of his throat tumor, which would cause him to cough and choke on his own blood.

“Bucklew’s execution will not go smoothly,” Hochman wrote. “He faces identifiable severe risks from the procedure both before and after the medical team gains venous access and the non-medical team begins to administer the lethal drug.”

Three questions

On appeal, Bucklew is not challenging the validity of his conviction or his death sentence. Instead, he challenges the particular method: lethal injection. He has sought to be executed by lethal gas instead, which also is permitted by state law. The state no longer has a gas chamber, however, and it has not used lethal gas in an execution since 1965.

Already, Bucklew’s appeals have resulted in two stays of execution from the U.S. Supreme Court. The latest was granted on March 20 — his most recent scheduled date for execution.

The vote for the stay was 5-4, with Chief Justice John Roberts, and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch voting against the stay. Justice Anthony Kennedy, a crucial swing vote for inmates in death-penalty matters, has since retired. He was replaced in October by Justice Brett Kavanaugh.

The case highlights three questions for the Supreme Court.

The first is whether courts evaluating an as-applied challenge to a state’s method of execution — or a challenge of a method’s constitutionality as it is applied to one’s individual case — should assume that the execution will go as intended for an inmate with a rare and severe medical condition.

If so, the following question is whether the courts should allow a death-row inmate to engage in discovery into the training and skills of the medical personnel administering the execution.

In Bucklew’s case, the courts refused to allow such discovery. His attorneys argued it was necessary because the medical team charged with administering Bucklew’s execution will be ignorant of key details about his condition, yet it will be empowered to make decisions during the procedure that could increase his suffering.

The second question is whether an inmate needs to present a single witness to provide comparative evidence distinguishing the inmate’s proposed alternative method for execution from the state’s method.

The third question is related to the second: It asks whether inmates must propose an alternative execution procedure when raising an as-applied challenge to a state’s execution method.

The second and third questions stem from the 2015 U.S. Supreme Court case Glossip v. Gross.

In that case, the court ruled that prisoners challenging the method of execution as a violation of the 8th Amendment on its face must demonstrate that the method poses a “risk of severe pain” that is “substantial when compared to the known and available alternatives.”

Bucklew, however, is raising a different type of challenge in his as-applied challenge. If he receives a favorable ruling on these questions, his case could be a road map for others to challenge the method of execution through as-applied challenges.

AG: Bucklew ‘could not win on the merits’

In the state’s briefs, Attorney General Josh Hawley argued that while Bucklew has delayed his execution for a decade, he is no closer to succeeding on his claims than he was when he began his challenges.

“As Bucklew presented his claim to the Eighth Circuit, Bucklew must prove a long line of factual predicates to have any hope of succeeding,” Hawley wrote.

Hawley said that even if the Supreme Court were to find that Bucklew had submitted sufficient evidence for every factual predicate, he still would lose on the merits.

“Even the dissenting opinion suggested that Bucklew could not win on the merits because he presented his evidence through an expert with obvious personal biases and a demonstrated lack of credibility,” he said. “Bucklew also faces substantial procedural hurdles on which no court has yet ruled.”

Hawley also argued that any delay in the case only impedes the victims’ and state’s interest in administering a death sentence in a timely fashion.

Kansas City attorney Cheryl A. Pilate, of Morgan Pilate, who has represented Bucklew since 2001 under the Criminal Justice Act, said she also will be present for arguments.

While she declined to comment on aspects of the pending case or its potential impact, she said her client has been greatly helped by the assistance of Sidley Austin, which has offered both personnel and other resources to the case pro bono.

“There are so many things that have happened in the case as a result of having the resources and personnel of a large firm,” she said.

“It’s a real demonstration of why you need resources in capital litigation — if we had not had these resources, I d​​on’t know where we would be right now.”

The case is Bucklew v. Precythe et al., 17-8151.

By: Jessica Shumaker | Missouri Lawyers Weekly