Russell Bucklew v. Anne Precythe
883 F.3d 1087
8th Cir.2018Background
- Russell Bucklew convicted of murder, kidnapping, and rape and sentenced to death; he has a congenital cavernous hemangioma causing large vascular tumors that partially obstruct his airway and compromise peripheral veins.
- Bucklew filed an as-applied Eighth Amendment § 1983 challenge, alleging Missouri's lethal-injection protocol using pentobarbital poses a substantial risk of severe pain (bleeding/choking/hemmorrhage) given his condition.
- After this Court’s en banc remand (Bucklew I) directing limited proceedings, the district court required Bucklew to identify a feasible alternative; he proposed nitrogen hypoxia (authorized by Missouri statute) and argued no lethal-injection modification would be adequate.
- Competing expert testimony: Bucklew’s expert (Dr. Zivot) opined a prolonged "twilight" period (study-based estimates up to ~4 minutes) in which Bucklew could be conscious and suffocate/bleed; State expert (Dr. Antognini) testified pentobarbital produces rapid unconsciousness (20–30 seconds) and that lethal gas would be no faster.
- The district court granted summary judgment for defendants, concluding Bucklew failed to show that nitrogen hypoxia (the proposed alternative) would in fact significantly reduce the substantial risk of severe pain. The panel affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Missouri's lethal-injection protocol, as applied to Bucklew, poses a risk "sure or very likely" to cause severe pain | Bucklew: his vascular tumors and compromised veins make lethal injection likely to cause prolonged choking, hemorrhage, and severe pain before unconsciousness | State: pentobarbital causes rapid deep unconsciousness; competing expert testimony undermines Bucklew's claim of prolonged awareness | Court: factual disputes exist but record does not establish the necessary comparative showing for relief; first prong not resolved in Bucklew's favor on summary judgment when coupled with second-prong failure |
| Whether Bucklew identified a feasible, readily implemented alternative that would "significantly reduce" the substantial risk of severe pain | Bucklew: nitrogen hypoxia (statutorily authorized) would render him insensate quickly and avoid airway bleeding/choking risks | State: nitrogen hypoxia is not shown to be more rapid or safer than pentobarbital; no reliable comparative evidence in the record | Court: Bucklew failed to present evidence that nitrogen hypoxia would in fact significantly reduce the risk; summary judgment for defendants affirmed |
| Whether discovery into execution-team medical members (M2/M3) was required | Bucklew: their qualifications and likely conduct could illuminate risk and whether central-line placement or positioning would be performed properly | State: court should assume competent, qualified personnel; isolated mishaps do not establish Eighth Amendment violation | Court: district court did not abuse discretion denying that discovery; Baze/Glossip analysis assumes competent execution personnel and standard protocol |
| Whether Baze/Glossip alternative-method requirement applies to severely unusual medical conditions | Bucklew: argues severely anomalous physical conditions should be exempt (analogous to Ford for mental incompetency) | State: Supreme Court has not recognized a categorical exemption; Baze/Glossip governs as-applied claims | Court: Baze/Glossip applies; no categorical exemption recognized; plaintiff must satisfy both prongs |
Key Cases Cited
- Baze v. Rees, 553 U.S. 35 (2008) (two-part test for method-of-execution Eighth Amendment challenges)
- Glossip v. Gross, 135 S. Ct. 2726 (2015) (clarified burden: prove method presents substantial risk and identify feasible alternative that significantly reduces it)
- Bucklew v. Lombardi (Bucklew I), 783 F.3d 1120 (8th Cir. en banc 2015) (remanded as-applied claim for limited proceedings)
- Zink v. Lombardi, 783 F.3d 1089 (8th Cir. 2015) (facial challenge to Missouri protocol rejected)
- Ford v. Wainwright, 477 U.S. 399 (1986) (incompetency as categorical bar to execution discussed)
- McGehee v. Hutchinson, 854 F.3d 488 (8th Cir. 2017) (applying Glossip standard)
- Williams v. Kelley, 854 F.3d 998 (8th Cir. 2017) (insufficient equivocal evidence does not satisfy Baze/Glossip)