BUCKLEW v. PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT OF CORRECTIONS, ET AL.
No. 17–8151
SUPREME COURT OF THE UNITED STATES
Decided April 1, 2019
587 U. S. ____ (2019)
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
Argued November 6, 2018
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Syllabus
In Baze v. Rees, 553 U. S. 35, a plurality of this Court concluded that a State’s refusal to alter its execution protocol could violate the Eighth Amendment only if an inmate first identified a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain.” Id., at 52. A majority of the Court subsequently held Baze’s plurality opinion to be controlling. See Glossip v. Gross, 576 U. S. ___.
Petitioner Russell Bucklew was convicted of murder and sentenced to death. The State of Missouri plans to execute him by lethal injection using a single drug, pentobarbital. Mr. Bucklew presented an as-applied Eighth Amendment challenge to the State’s lethal injection protocol, alleging that, regardless whether it would cause excruciating pain for all prisoners, it would cause him severe pain because of his particular medical condition.
The District Court dismissed his challenge. The Eighth Circuit, applying the Baze-Glossip test, remanded the case to allow Mr. Bucklew to identify a feasible, readily implemented alternative procedure that would significantly reduce his alleged risk of pain. Eventually, Mr. Bucklew identified nitrogen hypoxia, but the District Court found the proposal lacking and granted the State’s motion for summary judgment. The Eighth Circuit affirmed.
Held:
1. Baze and Glossip govern all Eighth Amendment challenges, whether facial or as-applied, alleging that a method of execution inflicts unconstitutionally cruel pain. Pp. 8–20.
(a) The Eighth Amendment forbids “cruel and unusual” methods of capital punishment but does not guarantee a prisoner a painless
(b) Precedent forecloses Mr. Bucklew’s argument that methods posing a “substantial and particular risk of grave suffering” when applied to a particular inmate due to his “unique medical condition” should be considered “categorically” cruel. Because distinguishing between constitutionally permissible and impermissible degrees of pain is a necessarily comparative exercise, the Court held in Glossip, identifying an available alternative is “a requirement of all Eighth Amendment method-of-execution claims” alleging cruel pain. 576 U. S., at ___. Mr. Bucklew’s argument is also inconsistent with the original and historical understanding of the Eighth Amendment on which Baze and Glossip rest: When it comes to determining whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment superadds pain well beyond what’s needed to effectuate a death sentence. And answering that question has always involved a comparison with available alternatives, not an abstract exercise in “categorical” classification. The substantive meaning of the Eighth Amendment does not change depending on how broad a remedy the plaintiff chooses to seek. Mr. Bucklew’s solution also invites pleading games, and there is little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative. Pp. 14–20.
2. Mr. Bucklew has failed to satisfy the Baze-Glossip test. Pp. 20–28.
(a) He fails for two independent reasons to present a triable question on the viability of nitrogen hypoxia as an alternative to the
(b) Even if nitrogen hypoxia were a viable alternative, neither of Mr. Bucklew’s theories shows that nitrogen hypoxia would significantly reduce a substantial risk of severe pain. First, his contention that the State may use painful procedures to administer the lethal injection, including forcing him to lie flat on his back (which he claims could impair his breathing even before the pentobarbital is administered), rests on speculation unsupported, if not affirmatively contradicted, by the record. And to the extent the record is unclear, he had ample opportunity to conduct discovery and develop a factual record concerning the State’s planned procedures. Second, Mr. Bucklew contends that while either method will cause him to experience feelings of suffocation for some period of time before he is rendered fully unconscious, the duration of that period will be shorter with nitrogen than with pentobarbital. But nothing in the record suggests that he will be capable of experiencing pain for significantly more time after receiving pentobarbital than he would after receiving nitrogen. His claim to the contrary rested on his expert’s testimony regarding a study of euthanasia in horses that everyone now agrees the expert misunderstood or misremembered. Pp. 23–28.
883 F. 3d 1087, affirmed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, and KAVANAUGH, JJ., joined. THOMAS, J., and KAVANAUGH, JJ., filed concurring opinions. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined as to all but Part III. SOTOMAYOR, J., filed a dissenting opinion.
RUSSELL BUCKLEW, PETITIONER v. ANNE L. PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT OF CORRECTIONS, ET AL.
No. 17–8151
SUPREME COURT OF THE UNITED STATES
April 1, 2019
587 U. S. ____ (2019)
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
JUSTICE GORSUCH delivered the opinion of the Court.
Russell Bucklew concedes that the State of Missouri lawfully convicted him of murder and a variety of other crimes. He acknowledges that the U. S. Constitution permits a sentence of execution for his crimes. He accepts, too, that the State’s lethal injection protocol is constitutional in most applications. But because of his unusual medical condition, he contends the protocol is unconstitutional as applied to him. Mr. Bucklew raised this claim for the first time less than two weeks before his scheduled execution. He received a stay of execution and five years to pursue the argument, but in the end neither the district court nor the Eighth Circuit found it supported by the law or evidence. Now, Mr. Bucklew asks us to overturn those judgments. We can discern no lawful basis for doing so.
I
A
In 1996, when Stephanie Ray announced that she wanted to end their relationship, Mr. Bucklew grew violent. He cut her jaw, punched her in the face, and threatened her
After a decade of litigation, Mr. Bucklew was seemingly out of legal options. A jury had convicted him of murder and other crimes and recommended a death sentence, which the court had imposed. His direct appeal had proved unsuccessful. State v. Bucklew, 973 S. W. 2d 83 (Mo. 1998), cert. denied, 525 U. S. 1082 (1999). Separate rounds of state and federal post-conviction proceedings also had failed to yield relief. Bucklew v. State, 38 S. W. 3d 395 (Mo.), cert. denied, 534 U. S. 964 (2001); Bucklew v. Luebbers, 436 F. 3d 1010 (CA8), cert. denied, 549 U. S. 1079 (2006).
B
As it turned out, though, Mr. Bucklew’s case soon became caught up in a wave of litigation over lethal injection procedures. Like many States, Missouri has periodically sought to improve its administration of the death penalty. Early in the 20th century, the State replaced hanging with the gas chamber. Later in the century, it authorized the use of lethal injection as an alternative to lethal gas. By the time Mr. Bucklew’s post-conviction proceedings ended, Missouri’s protocol called for lethal injections to be carried
Ultimately, this Court answered these legal challenges in Baze v. Rees, 553 U. S. 35 (2008). Addressing Kentucky’s similar three-drug protocol, THE CHIEF JUSTICE, joined by JUSTICE ALITO and Justice Kennedy, concluded that a State’s refusal to alter its lethal injection protocol could violate the Eighth Amendment only if an inmate first identified a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain.” Id., at 52. JUSTICE THOMAS, joined by Justice Scalia, thought the protocol passed muster because it was not intended “to add elements of terror, pain, or disgrace to the death penalty.” Id., at 107. JUSTICE BREYER reached the same result because he saw no evidence that the protocol created “a significant risk of unnecessary suffering.” Id., at 113. And though Justice Stevens objected to the continued use of the death penalty, he agreed that petitioners’ evidence was insufficient. Id., at 87. After this Court decided Baze, it denied review in a case seeking to challenge Missouri’s similar lethal injection protocol. Taylor v. Crawford, 487 F. 3d 1072 (2007), cert. denied, 553 U. S. 1004 (2008).
But that still was not the end of it. Next, Mr. Bucklew and other inmates unsuccessfully challenged Missouri’s protocol in state court, alleging that it had been adopted in
While all this played out, pressure from anti-death-penalty advocates induced the company that manufactured sodium thiopental to stop supplying it for use in executions. As a result, the State was unable to proceed with executions until it could change its lethal injection protocol again. This it did in 2012, prescribing the use of a single drug, the sedative propofol. Soon after that, Mr. Bucklew and other inmates sued to invalidate this new protocol as well, alleging that it would produce excruciating pain and violate the Eighth Amendment on its face. After the State revised the protocol in 2013 to use the sedative pentobarbital instead of propofol, the inmates amended their complaint to allege that pentobarbital would likewise violate the Constitution.
C
Things came to a head in 2014. With its new protocol in place and the necessary drugs now available, the State scheduled Mr. Bucklew’s execution for May 21. But 12 days before the execution Mr. Bucklew filed yet another lawsuit, the one now before us. In this case, he presented an as-applied Eighth Amendment challenge to the State’s new protocol. Whether or not it would cause excruciating pain for all prisoners, as his previous lawsuit alleged, Mr.
These latest protocol challenges yielded mixed results. The district court dismissed both the inmates’ facial challenge and Mr. Bucklew’s as-applied challenge. But, at Mr. Bucklew’s request, this Court agreed to stay his execution until the Eighth Circuit could hear his appeal. Bucklew v. Lombardi, 572 U. S. 1131 (2014). Ultimately, the Eighth Circuit affirmed the dismissal of the facial challenge. Zink v. Lombardi, 783 F. 3d 1089 (en banc) (per curiam), cert. denied, 576 U. S. ___ (2015). Then, turning to the as-applied challenge and seeking to apply the test set forth by the Baze plurality, the court held that Mr. Bucklew’s complaint failed as a matter of law to identify an alternative procedure that would significantly reduce the risks he alleged would flow from the State’s lethal injection protocol. Yet, despite this dispositive shortcoming, the court of appeals decided to give Mr. Bucklew another chance to plead his case. The court stressed that, on remand before the district court, Mr. Bucklew had to identify “at the earliest possible time” a feasible, readily implemented alternative procedure that would address those risks. Bucklew v. Lombardi, 783 F. 3d 1120, 1127–1128 (2015) (en banc).
Shortly after the Eighth Circuit issued its judgment, this Court decided Glossip v. Gross, 576 U. S. ___ (2015), rejecting a challenge to Oklahoma’s lethal injection proto-
D
Despite the Eighth Circuit’s express instructions, when Mr. Bucklew returned to the district court in 2015 he still refused to identify an alternative procedure that would significantly reduce his alleged risk of pain. Instead, he insisted that inmates should have to carry this burden only in facial, not as-applied, challenges. Finally, after the district court gave him “one last opportunity,” App. 30, Mr. Bucklew filed a fourth amended complaint in which he claimed that execution by “lethal gas” was a feasible and available alternative method that would significantly reduce his risk of pain. Id., at 42. Mr. Bucklew later clarified that the lethal gas he had in mind was nitrogen, which neither Missouri nor any other State had ever used to carry out an execution.
The district court allowed Mr. Bucklew “extensive discovery” on his new proposal. 883 F. 3d 1087, 1094 (CA8 2018). But even at the close of discovery in 2017, the district court still found the proposal lacking and granted
This time, a panel of the Eighth Circuit affirmed. The panel held that Mr. Bucklew had produced no evidence that the risk of pain he alleged “would be substantially reduced by use of nitrogen hypoxia instead of lethal injection as the method of execution.” 883 F. 3d, at 1096. Judge Colloton dissented, arguing that the evidence raised a triable issue as to whether nitrogen gas would “render Bucklew insensate more quickly than pentobarbital.” Id., at 1099. The full court denied rehearing en banc over a dissent by Judge Kelly, who maintained that, while pris-
On the same day Mr. Bucklew was scheduled to be executed, this Court granted him a second stay of execution. 583 U. S. ___ (2018). We then agreed to hear his case to clarify the legal standards that govern an as-applied Eighth Amendment challenge to a State’s method of carrying out a death sentence. 584 U. S. ___ (2018).
II
We begin with Mr. Bucklew’s suggestion that the test for lethal injection protocol challenges announced in Baze and Glossip should govern only facial challenges, not as-applied challenges like his. In evaluating this argument, we first examine the original and historical understanding of the Eighth Amendment and our precedent in Baze and Glossip. We then address whether, in light of those authorities, it would be appropriate to adopt a different constitutional test for as-applied claims.
A
The Constitution allows capital punishment. See Glossip, 576 U. S., at ___–___ (slip op., at 2–4); Baze, 553 U. S., at 47. In fact, death was “the standard penalty for all serious crimes” at the time of the founding. S. Banner, The Death Penalty: An American History 23 (2002) (Banner). Nor did the later addition of the Eighth Amendment outlaw the practice. On the contrary—the Fifth Amendment, added to the Constitution at the same time as the Eighth, expressly contemplates that a defendant may be tried for a “capital” crime and “deprived of life” as a penalty, so long as proper procedures are followed. And the First Congress, which proposed both Amendments, made a
While the Eighth Amendment doesn’t forbid capital punishment, it does speak to how States may carry out that punishment, prohibiting methods that are “cruel and unusual.” What does this term mean? At the time of the framing, English law still formally tolerated certain punishments even though they had largely fallen into disuse—punishments in which “terror, pain, or disgrace [were] superadded” to the penalty of death. 4 W. Blackstone, Commentaries on the Laws of England 370 (1769). These included such “[d]isgusting” practices as dragging the prisoner to the place of execution, disemboweling, quartering, public dissection, and burning alive, all of which Blackstone observed “savor[ed] of torture or cruelty.” Ibid.
Methods of execution like these readily qualified as “cruel and unusual,” as a reader at the time of the Eighth Amendment’s adoption would have understood those words. They were undoubtedly “cruel,” a term often defined to mean “[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting,” 1 S. Johnson, A Dictionary of the English Language (4th ed. 1773), or “[d]isposed to give pain to others, in body or mind; willing or pleased to torment, vex or afflict; inhuman; destitute of pity, compassion or kindness,” 1 N. Webster, An American Dictionary of the English Language (1828). And by the time of the founding, these methods had long fallen out of use and so had become “unusual.” 4 Blackstone, supra, at 370; Banner 76; Baze, 553 U. S., at 97 (THOMAS, J., concurring in judgment); see also Stinneford, The Original Meaning of
Contemporary evidence confirms that the people who ratified the Eighth Amendment would have understood it in just this way. Patrick Henry, for one, warned that unless the Constitution was amended to prohibit “cruel and unusual punishments,” Congress would be free to inflict “tortures” and “barbarous” punishments. 3 Debates on the Federal Constitution 447–448 (J. Elliot 2d ed. 1891). Many early commentators likewise described the Eighth Amendment as ruling out “the use of the rack or the stake, or any of those horrid modes of torture devised by human ingenuity for the gratification of fiendish passion.” J. Bayard, A Brief Exposition of the Constitution of the United States 140 (1833); see B. Oliver, The Rights of an American Citizen 186 (1832) (the Eighth Amendment prohibits such “barbarous and cruel punishments” as “[b]reaking on the wheel, flaying alive, rending asunder with horses, . . . maiming, mutilating and scourging to death”). Justice Story even remarked that he thought the prohibition of cruel and unusual punishments likely “unnecessary” because no “free government” would ever authorize “atrocious” methods of execution like these. 3 J. Story, Commentaries on the Constitution of the United States §1896, p. 750 (1833).
Consistent with the Constitution’s original understanding, this Court in Wilkerson v. Utah, 99 U. S. 130 (1879), permitted an execution by firing squad while observing that the Eighth Amendment forbade the gruesome methods of execution described by Blackstone “and all others in the same line of unnecessary cruelty.” Id., at 135–136. A few years later, the Court upheld a sentence of death by
It’s instructive, too, to contrast the modes of execution the Eighth Amendment was understood to forbid with those it was understood to permit. At the time of the Amendment’s adoption, the predominant method of execution in this country was hanging. Glossip, 576 U. S., at ___ (slip op., at 2). While hanging was considered more humane than some of the punishments of the Old World, it was no guarantee of a quick and painless death. “Many and perhaps most hangings were evidently painful for the condemned person because they caused death slowly,” and “[w]hether a hanging was painless or painful seems to have been largely a matter of chance.” Banner 48, 170. The force of the drop could break the neck and sever the spinal cord, making death almost instantaneous. But that was hardly assured given the techniques that prevailed at the time. More often it seems the prisoner would die from loss of blood flow to the brain, which could produce unconsciousness usually within seconds, or suffocation, which could take several minutes. Id., at 46–47; J. Laurence, The History of Capital Punishment 44–46 (1960); Gardner, Executions and Indignities: An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 39 Ohio St. L. J. 96, 120 (1978). But while hanging could and often did result in significant pain, its use “was virtually never questioned.” Banner 170. Presumably that was because, in contrast to punishments like burning and disemboweling, hanging wasn’t “intended to be painful”
What does all this tell us about how the Eighth Amendment applies to methods of execution? For one thing, it tells us 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. Glossip, 576 U. S., at ___ (slip op., at 4). Instead, what unites the punishments the Eighth Amendment was understood to forbid, and distinguishes them from those it was understood to allow, is that the former were long disused (unusual) forms of punishment that intensified the sentence of death with a (cruel) “‘superadd[ition]’” of “‘terror, pain, or disgrace.’” Baze, 553 U. S., at 48; accord, id., at 96 (THOMAS, J., concurring in judgment).
This Court has yet to hold that a State’s method of execution qualifies as cruel and unusual, and perhaps understandably so. Far from seeking to superadd terror, pain, or disgrace to their executions, the States have often sought more nearly the opposite, exactly as Justice Story predicted. Through much of the 19th century, States experimented with technological innovations aimed at making hanging less painful. See Banner 170–177. In the 1880s, following the recommendation of a commission tasked with finding “‘the most humane and practical method known to modern science of carrying into effect the sentence of death,’” the State of New York replaced hanging with electrocution. Glossip, 576 U. S., at ___ (slip op., at 2). Several States followed suit in the “‘“belief that electrocution is less painful and more humane than hanging.”’” Ibid. Other States adopted lethal gas after concluding it was “‘the most humane [method of execution] known to modern science.’” Ibid. And beginning in the 1970s, the search for less painful modes of execution led many States to switch to lethal injection. Id., at ___ (slip op., at 3); Baze, 553 U. S., at 42, 62; see also Banner 178–181, 196–197, 297. Notably, all of these innovations occurred not through this Court’s intervention, but through the initiative of the people and their representatives.
Still, accepting the possibility that a State might try to carry out an execution in an impermissibly cruel and unusual manner, how can a court determine when a State has crossed the line? THE CHIEF JUSTICE’s opinion in Baze, which a majority of the Court held to be controlling in Glossip, supplies critical guidance. It teaches that where (as here) the question in dispute is whether the State’s chosen method of execution cruelly superadds pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason. See Glossip, 576 U. S., at ___–___ (slip op., at 12–13); Baze, 553 U. S., at 52. Glossip left no doubt that this standard governs “all Eighth Amendment method-of-execution claims.” Glossip, 576 U. S., at ___ (slip op., at 1).
In reaching this conclusion, Baze and Glossip recognized that the Eighth Amendment “does not demand the avoidance of all risk of pain in carrying out executions.” Baze, 553 U. S., at 47. To the contrary, the Constitution affords a “measure of deference to a State’s choice of execution procedures” and does not authorize courts to serve as “boards of inquiry charged with determining ‘best practices’ for executions.” Id., at 51–52, and nn. 2–3. The Eighth Amendment does not come into play unless the risk of pain associated with the State’s method is “substantial when compared to a known and available alternative.” Glossip, 576 U. S., at ___ (slip op., at 13); see Baze, 553 U. S., at 61. Nor do Baze and Glossip suggest that traditionally accepted methods of execution—such as hanging, the firing squad, electrocution, and lethal injection—are
As we’ve seen, two Members of the Court whose votes were essential to the judgment in Glossip argued that establishing cruelty consistent with the Eighth Amendment’s original meaning demands slightly more than the majority opinion there (or the Baze plurality opinion it followed) suggested. Instead of requiring an inmate to establish that a State has unreasonably refused to alter its method of execution to avoid a risk of unnecessary pain, JUSTICE THOMAS and Justice Scalia contended that an inmate must show that the State intended its method to inflict such pain. See Glossip, 576 U. S., at ___ (THOMAS, J., concurring) (slip op., at 1); Baze, 553 U. S., at 94–107 (THOMAS, J., concurring in judgment). But revisiting that debate isn’t necessary here because, as we’ll see, the State was entitled to summary judgment in this case even under the more forgiving Baze-Glossip test. See Part III, infra.
B
Before turning to the application of Baze and Glossip, however, we must confront Mr. Bucklew’s argument that a different standard entirely should govern as-applied chal-
The first problem with this argument is that it’s foreclosed by precedent. Glossip expressly held that identifying an available alternative is “a requirement of all Eighth Amendment method-of-execution claims” alleging cruel pain. 576 U. S., at ___ (slip op., at 1) (emphasis added). And just as binding as this holding is the reasoning underlying it. Distinguishing between constitutionally permissible and impermissible degrees of pain, Baze and Glossip explained, is a necessarily comparative exercise. To decide whether the State has cruelly “superadded” pain to the punishment of death isn’t something that can be accomplished by examining the State’s proposed method in a vacuum, but only by “compar[ing]” that method with a viable alternative. Glossip, 576 U. S., at ___ (slip op., at 13); see Baze, 553 U. S., at 61. As Mr. Bucklew acknowledges when speaking of facial challenges, this comparison “provides the needed metric” to measure whether the State is lawfully carrying out an execution or inflicting “gratuitous” pain. Brief for Petitioner 42–43. Yet it is that very comparison and needed metric Mr. Bucklew would now have us discard. Nor does he offer some per-
Mr. Bucklew’s argument fails for another independent reason: It is inconsistent with the original and historical understanding of the Eighth Amendment on which Baze and Glossip rest. As we’ve seen, when it comes to determining whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment “superadds” pain well beyond what’s needed to effectuate a death sentence. And answering that question has always involved a comparison with available alternatives, not some abstract exercise in “categorical” classification. At common law, the ancient and barbaric methods of execution Mr. Bucklew cites were understood to be cruel precisely because—by comparison to other available methods—they went so far beyond what was needed to carry out a death sentence that they could only be explained as reflecting the infliction of pain for pain’s sake. Meanwhile, hanging carried with it an acknowledged and substantial risk of pain but was not considered cruel because that risk was thought—by comparison to other known methods—to involve no more pain than was reasonably necessary to impose a lawful death sentence. See supra, at 9–12.
What does the principal dissent have to say about all this? It acknowledges that Glossip’s comparative re-
With that, the dissent is left only to rehash the same argument that Mr. Bucklew offers. The dissent insists that some forms of execution are just categorically cruel. Post, at 10-11. At first and like others who have made this argument, the dissent offers little more than intuition to support its conclusion. Ultimately, though, even it bows to the necessity of something firmer. If a “comparator is needed” to assess whether an execution is cruel, the dissent tells us, we should compare the pain likely to follow from the use of a lethal injection in this case with the pain-free use of lethal injections in mine-run cases. Post, at 10. But that is just another way of saying executions must always be carried out painlessly because they can be carried out painlessly most of the time, a standard the Constitution has never required and this Court has rejected time and time again. Supra, at 12. To determine whether the State is cruelly superadding pain, our precedents and history require asking whether the State had some other feasible and readily available method to carry out its lawful sentence that would have significantly reduced a substantial risk of pain.
That Mr. Bucklew and the dissent fail to respect the force of our precedents—or to grapple with the understanding of the Constitution on which our precedents rest—is more than enough reason to reject their view that as-applied and facial challenges should be treated differently. But it turns out their position on this score suffers
Take this one. A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications. So classifying a lawsuit as facial or as-applied affects the extent to which the invalidity of the challenged law must be demonstrated and the corresponding “breadth of the remedy,” but it does not speak at all to the substantive rule of law necessary to establish a constitutional violation. Citizens United v. Federal Election Comm‘n, 558 U.S. 310, 331 (2010). Surely it would be strange for the same words of the Constitution to bear entirely different meanings depending only on how broad a remedy the plaintiff chooses to seek. See Gross v. United States, 771 F.3d 10, 14-15 (CADC 2014) (“[T]he substantive rule of law is the same for both [facial and as-applied] challenges“); Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 228 (CA2 2006) (the facial/as-applied distinction affects “the extent to which the invalidity of a statute need be demonstrated,” not “the substantive rule of law to be used“). And surely, too, it must count for something that we have found not a single court decision in over 200 years suggesting that the Eighth Amendment‘s meaning shifts in this way. To the contrary, our precedent suggests just the opposite. In the related context of an
Here is yet another problem with Mr. Bucklew‘s argument: It invites pleading games. The line between facial and as-applied challenges can sometimes prove “amorphous,” Elgin v. Department of Treasury, 567 U.S. 1, 15 (2012), and “not so well defined,” Citizens United, 558 U.S., at 331. Consider an example. Suppose an inmate
Finally, the burden Mr. Bucklew must shoulder under the Baze-Glossip test can be overstated. An inmate seeking to identify an alternative method of execution is not limited to choosing among those presently authorized by a particular State‘s law. Missouri itself seemed to acknowledge as much at oral argument. Tr. of Oral Arg. 65. So, for example, a prisoner may point to a well-established protocol in another State as a potentially viable option. Of course, in a case like that a court would have to inquire into the possibility that one State possessed a legitimate reason for declining to adopt the protocol of another. See supra, at 13-14. And existing state law might be relevant to determining the proper procedural vehicle for the inmate‘s claim. See Hill v. McDonough, 547 U.S. 573, 582-583 (2006) (if the relief sought in a
III
Having (re)confirmed that anyone bringing a method of execution claim alleging the infliction of unconstitutionally cruel pain must meet the Baze-Glossip test, we can now turn to the question whether Mr. Bucklew is able to satisfy that test. Has he identified a feasible and readily implemented alternative method of execution the State refused to adopt without a legitimate reason, even though it would significantly reduce a substantial risk of severe pain? Because the case comes to us after the entry of summary judgment, this appeal turns on whether Mr. Bucklew has shown a genuine issue of material fact warranting a trial.
A
We begin with the question of a proposed alternative method. Through much of this case and despite many opportunities, Mr. Bucklew refused to identify any alternative method of execution, choosing instead to stand on his argument that Baze and Glossip‘s legal standard does not govern as-applied challenges like his (even after the Eighth Circuit rejected that argument). Only when the district court warned that his continued refusal to abide this Court‘s precedents would result in immediate dismissal did Mr. Bucklew finally point to nitrogen hypoxia. The district court then afforded Mr. Bucklew “extensive discovery” to explore the viability of that alternative.
First, an inmate must show that his proposed alternative method is not just theoretically “feasible” but also “readily implemented.” Glossip, 576 U.S., at 877-878 (slip op., at 12-13). This means the inmate‘s proposal must be sufficiently detailed to permit a finding that the State could carry it out “relatively easily and reasonably quickly.” McGehee v. Hutchinson, 854 F.3d 488, 493 (CA8 2017); Arthur v. Commissioner, Ala. Dept. of Corrections, 840 F.3d 1268, 1300 (CA11 2016). Mr. Bucklew‘s barebones proposal falls well short of that standard. He has presented no evidence on essential questions like how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some mixture of gases); how quickly and for how long it should be introduced; or how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks. Instead of presenting the State with a readily implemented alternative method, Mr. Bucklew (and the principal dissent) point to reports from correctional authorities in other States indicating that additional study is needed to develop a protocol for execution by nitrogen hypoxia. See App. 697 (Oklahoma grand jury report recommending that the State “retain experts” and conduct “further research” to “determine how to carry out the sentence of death by this method“); id., at 736 (report of Louisiana Dept. of Public Safety & Corrections stating that “[r]esearch . . . is ongoing” to develop a nitrogen hypoxia protocol). That is a proposal for more research, not the readily implemented alternative that Baze and Glossip require.
Even if a prisoner can carry his burden of showing a readily available alternative, he must still show that it would significantly reduce a substantial risk of severe pain. Glossip, 576 U.S., at 877-878 (slip op., at 13); Baze, 553 U.S., at 52. A minor reduction in risk is insufficient; the difference must be clear and considerable. Over the course of this litigation, Mr. Bucklew‘s explanation why nitrogen hypoxia meets this standard has evolved significantly. But neither of the two theories he has advanced in this Court turns out to be supported by record evidence.
First, Mr. Bucklew points to several risks that he alleges could result from use of the State‘s lethal injection protocol that would not be present if the State used nitrogen gas. For example, he says the execution team might try to insert an IV into one of his peripheral veins, which could cause the vein to rupture; or the team might instead use an allegedly painful “cut-down” procedure to access his femoral vein. He also says that he might be forced to lie flat on his back during the execution, which could impair his breathing even before the pentobarbital is administered. And he says the stress from all this could cause his tumors to bleed, further impairing his breathing. These risks, we may assume, would not exist if Mr. Bucklew were executed by his preferred method of nitrogen hypoxia.
The problem with all of these contentions is that they rest on speculation unsupported, if not affirmatively contradicted, by the evidence in this case. Nor does the principal dissent contend otherwise. So, for example, uncontroverted record evidence indicates that the execution team will have discretion to adjust the gurney to whatever position is in Mr. Bucklew‘s best medical interests. 883 F.3d, at 1092, n. 3; App. 531. Moreover, the State agreed in the district court that it would not try to place an IV in Mr. Bucklew‘s compromised peripheral veins. Id., at 820; see Brief for Appellant in No. 17–3052 (CA8), p. 7. And,
Moreover, to the extent the record is unclear on any of these issues, Mr. Bucklew had ample opportunity to conduct discovery and develop a factual record concerning exactly what procedures the State planned to use. He failed to do so—presumably because the thrust of his constitutional claim was that any attempt to execute him via lethal injection would be unconstitutional, regardless of the specific procedures the State might use. As the court of appeals explained: “Having taken the position that any lethal injection procedure would violate the
But here again the record contains insufficient evidence to permit Mr. Bucklew to avoid summary judgment. For starters, in the courts below Mr. Bucklew maintained he would have trouble managing his airway only if he were forced to lie supine, which (as we have explained) the evidence shows he will not be. (The dissenters do not address this point.) But even indulging his new claim that he will have this difficulty regardless of position, he still has failed to present colorable evidence that nitrogen would significantly reduce his risk of pain. We can assume for argument‘s sake that Mr. Bucklew is correct that with nitrogen the twilight stage would last 20 to 30 seconds. The critical question, then, is how long that period might last with pentobarbital. The State‘s expert, Dr. Antognini, testified that pentobarbital, too, would render Mr. Buck
In fact, there is nothing in the record to suggest that Mr. Bucklew will be capable of experiencing pain for significantly more than 20 to 30 seconds after being injected with pentobarbital. For one thing, Mr. Bucklew‘s lawyer now admits that Dr. Zivot “crossed up the numbers” from the horse study. Tr. of Oral Arg. 7–8, 11–12. The study actually reported that the horses displayed isoelectric EEG between 2 and 52 seconds after infusion of pentobarbital was completed, with an average time of less than 24 seconds. App. 267. So if anything, the horse study appears to bolster Dr. Antognini‘s time estimate. For another thing, everyone now also seems to acknowledge that isoelectric EEG is the wrong measure. Dr. Zivot never claimed the horses were capable of experiencing pain until they reached isoelectric EEG. And Mr. Bucklew‘s lawyer now concedes that doctors perform major surgery on hu
Of course, the principal dissent maintains that Dr. Zivot‘s testimony supports an inference that pentobarbital might cause Mr. Bucklew to suffer for a prolonged period. But its argument rests on a number of mistakes about the record. For example, the dissent points to Dr. Zivot‘s remark that, with pentobarbital, “‘the period of time between receiving the injection and death could range over a few minutes to many minutes.‘” Post, at 4, 6 (quoting App. 222). From this, the dissent concludes that Mr. Bucklew may suffer for “up to several minutes.” Post, at 1, 6, 9. But everyone agrees that the relevant question is not how long it will take for Mr. Bucklew to die, but how long he will be capable of feeling pain. Seeking to address the problem, the dissent next points to another part of Dr. Zivot‘s testimony and says it means Mr. Bucklew could experience pain during the entire time between injection and death. Post, at 6, 13 (quoting App. 222). But the dissent clips the relevant quotation. As the full quotation makes clear, Dr. Zivot claimed that Mr. Bucklew might be unable to “maintain the integrity of his airway” until he died—but he carefully avoided claiming that Mr. Bucklew
In sum, even if execution by nitrogen hypoxia were a feasible and readily implemented alternative to the State‘s chosen method, Mr. Bucklew has still failed to present any evidence suggesting that it would significantly reduce his risk of pain. For that reason as well, the State was entitled to summary judgment on Mr. Bucklew‘s
IV
“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. Those interests have been frustrated in this case. Mr. Bucklew committed his crimes more than two decades ago. He exhausted his appeal and separate state and federal habeas challenges more than a decade ago. Yet since then he has managed to secure delay through lawsuit after lawsuit. He filed his current challenge just days before his scheduled execution. That suit has now carried on for five years and yielded two appeals to the Eighth Circuit, two 11th-hour stays of execution, and plenary consideration in this Court. And despite all this, his suit in the end amounts to little more than an attack on settled precedent, lacking enough evidence even to survive summary judgment—and on not just one but many essential legal elements set forth in our case law and required by the Constitution‘s original meaning.
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 law
*
The judgment of the court of appeals is
Affirmed.
RUSSELL BUCKLEW, PETITIONER v. ANNE L. PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT OF CORRECTIONS, ET AL.
No. 17–8151
SUPREME COURT OF THE UNITED STATES
[April 1, 2019]
587 U.S. 119
THOMAS, J.
I adhere to my view that “a method of execution violates the
I write separately to explain why JUSTICE BREYER‘s dissenting opinion does not cast doubt on this standard. Post, at 15–16. As I explained in Baze, “the evil the
Contrary to JUSTICE BREYER‘s suggestion, my view does not render the
RUSSELL BUCKLEW, PETITIONER v. ANNE L. PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT OF CORRECTIONS, ET AL.
No. 17–8151
SUPREME COURT OF THE UNITED STATES
[April 1, 2019]
587 U.S. 119
KAVANAUGH, J.
When an inmate raises an as-applied constitutional challenge to a particular method of execution—that is, a challenge to a method of execution that is constitutional in general but that the inmate says is very likely to cause him severe pain—one question is whether the inmate must identify an available alternative method of execution that would significantly reduce the risk of severe pain. Applying our recent decisions in Glossip v. Gross, 576 U.S. 863 (2015), and Baze v. Rees, 553 U.S. 35 (2008) (plurality opinion), the Court‘s answer to that question is yes. Under those precedents, I agree with the Court‘s holding and join the Court‘s opinion.
I write to underscore the Court‘s additional holding that the alternative method of execution need not be authorized under current state law—a legal issue that had been uncertain before today‘s decision. See Arthur v. Dunn, 580 U.S. 1141 (2017) (slip op., at 9–11) (SOTOMAYOR, J., dissenting from denial of certiorari). Importantly, all nine Justices today agree on that point. Ante, at 19; post, at 14 (BREYER, J., dissenting).
As the Court notes, it follows from that additional holding that the burden of the alternative-method requirement “can be overstated.” Ante, at 19. Indeed, the Court
In other words, an inmate who contends that a particular method of execution is very likely to cause him severe pain should ordinarily be able to plead some alternative method of execution that would significantly reduce the risk of severe pain. At oral argument in this Court, the State suggested that the firing squad would be such an available alternative, if adequately pleaded. Tr. of Oral Arg. 63–64 (“He can plead firing squad. . . . Of course, if he had . . . pleaded firing squad, it‘s possible that Missouri could have executed him by firing squad“). JUSTICE SOTOMAYOR has likewise explained that the firing squad is an alternative method of execution that generally causes an immediate and certain death, with close to zero risk of a botched execution. See Arthur, 580 U.S., at 17-18. I do not here prejudge the question whether the firing squad, or any other alternative method of execution, would be a feasible and readily implemented alternative for every State. See McGehee v. Hutchinson, 854 F.3d 488, 493–494 (CA8 2017). Rather, I simply emphasize the Court‘s statement that “we see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative.” Ante, at 20.
RUSSELL BUCKLEW, PETITIONER v. ANNE L. PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT OF CORRECTIONS, ET AL.
No. 17–8151
SUPREME COURT OF THE UNITED STATES
[April 1, 2019]
587 U.S. 119
BREYER, J.
The Court‘s decision in this case raises three questions. The first is primarily a factual question, namely, whether Bucklew has established genuine issues of material fact concerning whether executing him by lethal injection would cause him excessive suffering. The second is primarily a legal question, namely, whether a prisoner like Bucklew with a rare medical condition must identify an alternative method by which the State may execute him. And the third is a more general question, namely, how to minimize delays in executing offenders who have been condemned to death.
I disagree with the majority‘s answers to all three questions. Bucklew cites 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. That evidence establishes at this stage of the proceedings that executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering. The majority holds that the State may execute him anyway. In my view, that holding violates
I
I begin with a factual question: whether Bucklew has established that, because of his rare medical condition, the State‘s current method of execution risks subjecting him to excessive suffering. See Glossip v. Gross, 576 U. S. ___, ___ (2015) (slip op., at 13) (requiring “a demonstrated risk of severe pain“); see also Baze v. Rees, 553 U. S. 35, 50 (2008) (plurality opinion) (requiring “a substantial risk of serious harm” (internal quotation marks omitted)).
There is no dispute as to the applicable summary judgment standard. Because the State moved for summary judgment, it can prevail if, but only if, it “shows that there is no genuine dispute as to any material fact.”
A
Bucklew has easily established a genuine issue of material fact regarding whether an execution by lethal injection would subject him to impermissible suffering.
The record indicates that Bucklew suffers from a congenital condition known as cavernous hemangioma that causes tumors filled with blood vessels to grow throughout his body, including in his head, face, neck, and oral cavity. The condition is rare. One study estimates that hemangiomas in the oral cavity occur in less than one percent of the population, and that hemangiomas like Bucklew‘s have been identified in five cases. See Wang, Chen, Mojica, & Chen, Cavernous Hemangioma of the Uvula, 8 N.
Tumors grow out of Bucklew‘s lip and over his mouth, as well as on his hard and soft palates. One tumor also grows directly on Bucklew‘s uvula, which has become “grossly enlarged” as a result. App. 225. (The uvula is the “pendent fleshy lobe” that hangs from the back of the throat. Merriam-Webster‘s Collegiate Dictionary 1379 (11th ed. 2003).) Bucklew‘s tumors obstruct his airway and make it difficult for him to breathe. His difficulty breathing is chronic, but is particularly acute when he lies flat and gravity pulls his engorged uvula into his airway. He often has to adjust the positioning of his head to prevent his uvula from obstructing his breathing. He sleeps at a 45-degree angle to facilitate breathing, and he often wakes up in the middle of the night gasping for air.
Due to the sensitivity of his tumors, even minimal contact may cause them to hemorrhage. He has described past hemorrhages as “‘squirting‘” or “leaking” blood, and he states that the first thing he does each morning is to wipe the blood off his face that leaked from his nose and mouth as he slept. Bucklew‘s condition is progressive and, due to the risk of significant blood loss caused by the sensitivity of his tumors, cannot be treated by surgery.
Bucklew maintains that, as a result of this medical condition, executing him by lethal injection would prove excruciatingly painful. In support of this claim, Bucklew submitted sworn declarations and deposition testimony from an expert witness, Dr. Joel Zivot, an anesthesiologist. Dr. Zivot provided extensive testimony regarding the pain that Bucklew would likely endure in an execution by lethal injection:
- Dr. Zivot testified that in light of “the degree to which Mr. Bucklew‘s airway is compromised by the hemangiomas” and “the particular psychological and physical effects of lethal injection, it is highly likely that Mr.
Bucklew would be unable to maintain the integrity of his airway during the time after receiving the lethal injection and before death.” App. 221. - Dr. Zivot explained that, as a result of “the highly friable and fragile state of the tissue of Mr. Bucklew‘s mouth and airway,” Bucklew “will likely experience hemorrhaging and/or the possible rupture of the tumor” on his uvula during his execution. Id., at 222.
- Dr. Zivot added that the “hemorrhaging will further impede Mr. Bucklew‘s airway by filling his mouth and airway with blood, causing him to choke and cough on his own blood.” Ibid.
- Dr. Zivot concluded that “it is highly likely that Mr. Bucklew, given his specific congenital medical condition, cannot undergo lethal injection without experiencing the excruciating pain and suffering” of “suffocation, convulsions, and visible hemorrhaging.” Id., at 223.
Dr. Zivot also testified about the duration of pain to which an execution by lethal injection would subject Bucklew, describing it as “prolonged.” Id., at 234.
- Dr. Zivot stated that the effects of a pentobarbital injection “are highly unlikely to be instantaneous and the period of time between receiving the injection and death could range over a few minutes to many minutes.” Id., at 222 (emphasis added).
- Dr. Zivot “strongly disagree[d] with [the State‘s expert‘s] repeated claim that the pentobarbital injection would result in ‘rapid unconsciousness.‘” Id., at 233.
- Dr. Zivot explained that Bucklew “would likely experience unconsciousness that sets in progressively as the chemical circulates through his system” and that it was during this period that Bucklew was “likely to experience prolonged feelings of suffocation and excruciating pain.” Id., at 233-234.
The State asked the District Court to grant summary judgment in its favor on the theory that Bucklew failed to identify a genuine factual issue regarding whether an execution would be impermissibly painful. The District Court refused. The court believed that Bucklew had adequately shown that for up to several minutes he “could be aware that he is choking or unable to breathe but be unable to ‘adjust’ his breathing to remedy the situation.” Id., at 827. Recognizing that the State‘s evidence suggested that Bucklew would experience this choking sensation for a shorter period, the District Court concluded that the dispute between the experts was “a factual dispute that the Court cannot resolve on summary judgment, and would have to be resolved at trial.” Ibid.
The District Court was right. The evidence, taken in the light most favorable to Bucklew, creates a genuine factual issue as to whether Missouri‘s lethal injection protocol would subject him to several minutes of “severe pain and suffering,” Glossip, 576 U. S., at ___ (slip op., at 13), during which he would choke and suffocate on his own blood. In my view, executing Bucklew by forcing him to choke on his grossly enlarged uvula and suffocate on his blood would exceed “the limits of civilized standards.” Kennedy v. Louisiana, 554 U. S. 407, 435 (2008) (internal quotation marks omitted); see also Trop v. Dulles, 356 U. S. 86, 100-101 (1958) (plurality opinion). The experts dispute whether Bucklew‘s execution will prove as unusually painful as he claims, but resolution of that dispute is a matter for trial.
The majority, while characterizing the matter as “critical,” says that there is “nothing in the record to suggest that Mr. Bucklew will be capable of experiencing pain for significantly more than 20 to 30 seconds after being injected with pentobarbital.” Ante, at 26. But what about Dr. Zivot‘s testimony that the time between injection and death “could range over a few minutes to many minutes“? App. 222. What about Dr. Zivot‘s characterization of the pain involved as “prolonged“? Id., at 234. What about Dr. Zivot‘s “stron[g] disagree[ment] with [the State‘s expert‘s] repeated claim that the pentobarbital injection would result in ‘rapid unconsciousness‘“? Id., at 233.
The majority construes Dr. Zivot‘s testimony to show only that Bucklew might remain alive for several minutes after the injection, not that he will be capable of feeling pain for several minutes after the injection. Ante, at 27. But immediately following his prediction that the time between injection and death could range up to many minutes, Dr. Zivot stated that “beginning with the injection of the Pentobarbital solution and ending with Mr. Bucklew‘s death several minutes to as long as many minutes later, Mr. Bucklew would be highly likely to experience feelings of ‘air hunger’ and the excruciating pain of prolonged suffocation.” App. 222 (emphasis added). Dr. Zivot thus testified both that lethal injection would take up to several minutes to kill Bucklew and that Bucklew would experience excruciating pain during this period. And it is not the case, as the majority believes, that Dr. Zivot “carefully avoided claiming that Mr. Bucklew would be capable of feeling pain until he died,” ante, at 28, particularly given that the record must be construed in the light most favorable to Bucklew.
The majority also justifies its refusal to credit Dr. Zivot‘s testimony on the ground that Dr. Zivot gave a response during his deposition suggesting that he misinterpreted a
Whether any mistake about the importance of a single study makes all the difference to Bucklew‘s case is a matter not for this Court to decide at summary judgment, but for the factfinder to resolve at trial. As Judge Colloton pointed out in dissent below, attacks on the “reliability and credibility of Dr. Zivot‘s opinion,” including “his possible misreading of the horse study on which he partially relied,” give rise to factual disputes. See 883 F. 3d 1087, 1099 (CA8 2018). Judge Colloton therefore concluded that “[t]he district court did not err in concluding that it could not resolve the dispute between the experts on summary judgment.” Ibid. I agree.
II
This case next presents a legal question. The Court in Glossip held in the context of a facial challenge to a State‘s execution protocol that the plaintiffs were required not only to establish that the execution method gave rise to a “demonstrated risk of severe pain,” but also to identify a “known and available” alternative method. 576 U. S., at 878 (slip op., at 13). The Court added that the alternative must be “feasible, readily implemented, and in fact significantly reduc[e] a substantial risk of severe pain.” Id., at 877-78 (slip op., at 12-13) (internal quotation marks omitted).
I joined the dissent in Glossip, but for present purposes
A
The plaintiffs in Glossip undertook an across-the-board attack against the use of a particular execution method, which they maintained violated the
First, these differences show that the reasons that underlie Glossip‘s “alternative method” requirement do not apply here.
The Glossip Court stressed the importance of preventing method-of-execution challenges from becoming a backdoor means to abolish capital punishment in general. The Court wrote that “because it is settled that capital punishment is constitutional, it necessarily follows that there must be a constitutional means of carrying it out.” Glossip, 576 U. S., at ___ (slip op., at 4) (alterations omitted). The Court added that “we have time and again reaffirmed that capital punishment is not per se unconstitutional.”
The Glossip Court, in adopting the “alternative method” requirement, relied on THE CHIEF JUSTICE‘S plurality opinion in Baze, which discussed the need to avoid “intrud[ing] on the role of state legislatures in implementing their execution procedures.” 553 U. S., at 51; see also ante, at 13 (we owe “a measure of deference to a State‘s choice of execution procedures” (internal quotation marks omitted)). But no such intrusion problem exists in a case like this one. When adopting a method of execution, a state legislature will rarely consider the method‘s application to an individual who, like Bucklew, suffers from a rare disease. It is impossible to believe that Missouri‘s legislature, when adopting lethal injection, considered the possibility that it would cause prisoners to choke on their own blood for up to several minutes before they die. Exempting a prisoner from the State‘s chosen method of execution in these circumstances does not interfere with any legislative judgment.
The Court in Glossip may have also believed that the
Second, precedent counsels against extending Glossip. Neither this Court‘s oldest method-of-execution case, Wilkerson v. Utah, 99 U. S. 130 (1879), nor any subsequent decision of this Court until Glossip, held that prisoners who challenge a State‘s method of execution must identify an alternative means by which the State may execute them. To the contrary, in Hill v. McDonough, 547 U. S. 573 (2006), the Court squarely and unanimously rejected the argument that a prisoner must “identif[y] an alternative, authorized method of execution.” Id., at 582. The Court noted that any such requirement would “change the traditional pleading requirements for
Third, the troubling implications of today‘s ruling provide the best reason for declining to extend Glossip‘s “alternative method” requirement. The majority acknowledges that the
B
Even assuming for argument‘s sake that Bucklew must bear the burden of showing the existence of a “known and available” alternative method of execution that “significantly reduces a substantial risk of severe pain,” id., at ___ (majority opinion) (slip op., at 13) (alteration and internal quotation marks omitted), Bucklew has satisfied that burden. The record contains more than enough evidence on the point to raise genuine and material factual issues that preclude summary judgment.
Bucklew identified as an alternative method of execu-
How then can the majority conclude that Bucklew has failed to identify an alternative method of execution? The majority finds Bucklew‘s evidence inadequate in part because, in the majority‘s view, it does not show that nitrogen hypoxia will “significantly reduce” Bucklew‘s risk of pain as compared with lethal injection. Ante, at 23. But the majority does not dispute the evidence suggesting that nitrogen hypoxia would be “quick and painless” and would take effect in 20 to 30 seconds. The majority instead believes that “nothing in the record” suggests that lethal injection would take longer than nitrogen gas to take effect. Ante, at 26. As I have already explained, the majority reaches this conclusion by overlooking considerable evidence to the contrary—such as Dr. Zivot‘s testimony that Bucklew‘s pain would likely prove “prolonged,” App.
The majority additionally believes that Bucklew‘s evidence fails to show that nitrogen hypoxia would be easy to implement. Ante, at 21. But the reports from Oklahoma and Louisiana tell a different story. The Louisiana report states that nitrogen hypoxia would be “simple to administer.” App. 737. The Oklahoma report similarly concludes that “[d]eath sentences carried out by nitrogen inhalation would be simple to administer.” Id., at 746; see also id., at 696. The reports explain that nitrogen hypoxia would “not require the use of a complex medical procedure or pharmaceutical products,” id., at 747, would “not require the assistance of licensed medical professionals,” id., 736, and would require only materials that are “readily available for purchase,” id., at 739. Further, “[b]ecause the protocol involved in nitrogen induced hypoxia is so simple, mistakes are unlikely to occur.” Id., at 748. And both studies recommend the development of protocols for actual implementation. See id., at 697 (Oklahoma report recommending development of “a nitrogen hypoxia protocol“); id., at 736 (Louisiana report noting that although “the exact protocol” has not been finalized, the report recommends “that hypoxia induced by the inhalation of nitrogen be considered for adoption“); see also Murphy, Oklahoma Says It Plans To Use Nitrogen for Executions, USA Today, Mar. 15, 2018 (quoting the Oklahoma attorney general‘s
Presented with evidence such as Bucklew‘s, I believe a State should take at least minimal steps to determine the feasibility of the proposed alternative. The responsible state official in this case, however, acknowledged that he “did not conduct research concerning the feasibility of lethal gas as a method of execution in Missouri.” Id., at 713; see also Record in No. 14-800 (WD Mo.), Doc. 182-6, p. 16 (different official acknowledging that, “to be candid, no, I did not go out and try to find answers to those questions“).
The majority sensibly recognizes that an inmate seeking to identify an alternative method of execution “is not limited to choosing among those presently authorized by a particular State‘s law.” Ante, at 19. But the majority faults Bucklew for failing to provide guidance about the administration of nitrogen hypoxia down to the last detail. The majority believes that Bucklew failed to present evidence “on essential questions” such as whether the nitrogen should be administered “using a gas chamber, a tent, a hood, [or] a mask“; or “in what concentration (pure nitrogen or some mixture of gases)” it should be administered; or even how the State might “protec[t the execution team] against the risk of gas leaks.” Ante, at 21.
Perhaps Bucklew did not provide these details. But Glossip did not refer to any of these requirements; today‘s majority invents them. And to insist upon them is to create what, in a case like this one, would amount to an insurmountable hurdle for prisoners like Bucklew. That hurdle, I fear, could permit States to execute even those who will endure the most serious pain and suffering, irrespective of how exceptional their case and irrespective of how thoroughly they prove it. I cannot reconcile the majority‘s decision with a constitutional Amendment that
C
JUSTICE THOMAS concurs in the majority‘s imposition of an “alternative method” requirement, but would also permit Bucklew‘s execution on the theory that a method of execution violates the
For one thing, JUSTICE THOMAS’ view would make the constitutionality of a particular execution turn on the intent of the person inflicting it. But it is not correct that concededly torturous methods of execution such as burning alive are impermissible when imposed to inflict pain but not when imposed for a subjectively different purpose. To the prisoner who faces the prospect of a torturous execution, the intent of the person inflicting the punishment makes no difference.
For another thing, we have repeatedly held that the
III
Implicitly at the beginning of its opinion and explicitly at the end, the majority invokes the long delays that now typically occur between the time an offender is sentenced to death and his execution. Bucklew was arrested for the crime that led to his death sentence more than 20 years ago. And Bucklew‘s case is not an anomaly. The average time between sentencing and execution approaches 18 years and in some instances rises to more than 40 years. See Glossip, 576 U. S., at ___ (BREYER, J., dissenting) (slip op., at 18); Reynolds v. Florida, 586 U. S. ___, ___ (2018) (BREYER, J., statement respecting denial of certiorari) (slip op., at 2).
I agree with the majority that these delays are excessive. Undue delays in death penalty cases frustrate the interests of the State and of surviving victims, who have “an important interest” in seeing justice done quickly. Hill, 547 U. S., at 584. Delays also exacerbate the suffering that accompanies an execution itself. Glossip, 576 U. S., at ___ (BREYER, J., dissenting) (slip op., at 19-23). Delays can “aggravate the cruelty of capital punishment” by subjecting the offender to years in solitary confinement, and delays also “undermine [capital punishment‘s] jurisprudential rationale” by reducing its deterrent effect and retributive value. Id., at ___, ___ (slip op., at 28, 32).
The majority responds to these delays by curtailing the constitutional guarantees afforded to prisoners like Buck-
In support of the need to end delays in capital cases, the majority refers to Dunn v. Ray, 586 U. S. ___ (2019). In that case, the Court vacated a stay of execution on the ground that the prisoner brought his claim too late. The prisoner in that case, however, brought his claim only five days after he was notified of the policy he sought to challenge. See id., at ___ (KAGAN, J., dissenting) (slip op., at 3). And in the view of some of us, the prisoner‘s claim—that prisoners of some faiths were entitled to have a minister present at their executions while prisoners of other faiths were not—raised a serious constitutional question. See id., at ___ (slip op., at 2) (characterizing the Court‘s decision as “profoundly wrong“). And therein lies the problem. It might be possible to end delays by limiting constitutional protections for prisoners on death row. But to do so would require us to pay too high a constitutional price.
Today‘s majority appears to believe that because “[t]he Constitution allows capital punishment,” ante, at 8, the Constitution must allow capital punishment to occur quickly. In reaching that conclusion the majority echoes an argument expressed by the Court in Glossip, namely, that “because it is settled that capital punishment is constitutional, it necessarily follows that there must be a
These conclusions do not follow. It may be that there is no way to execute a prisoner quickly while affording him the protections that our Constitution guarantees to those who have been singled out for our law‘s most severe sanction. And it may be that, as our Nation comes to place ever greater importance upon ensuring that we accurately identify, through procedurally fair methods, those who may lawfully be put to death, there simply is no constitutional way to implement the death penalty.
I have elsewhere written about these problems. See id., at 908-14 (BREYER, J., dissenting) (slip op., at 29-33). And I simply conclude here that the law entitles Bucklew to an opportunity to prove his claim at trial. I note, however, that this case adds to the mounting evidence that we can either have a death penalty that avoids excessive delays and “arguably serves legitimate penological purposes,” or we can have a death penalty that “seeks reliability and fairness in the death penalty‘s application” and avoids the infliction of cruel and unusual punishments. Id., at 939 (slip op., at 32). It may well be that we “cannot have both.” Ibid.
* * *
I respectfully dissent.
RUSSELL BUCKLEW, PETITIONER v. ANNE L. PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT OF CORRECTIONS, ET AL.
No. 17–8151
SUPREME COURT OF THE UNITED STATES
[April 1, 2019]
587 U.S. ___ (2019)
SOTOMAYOR, J.
As I have maintained ever since the Court started down this wayward path in Glossip v. Gross, 576 U. S. 863 (2015), there is no sound basis in the Constitution for requiring condemned inmates to identify an available means for their own executions. JUSTICE BREYER ably explains why today‘s extension of Glossip‘s alternative-method requirement is misguided (even on that precedent‘s own terms), and why (with or without that requirement) a trial is needed to determine whether Missouri‘s planned means of executing Russell Bucklew creates an intolerable risk of suffering in light of his rare medical condition. I join JUSTICE BREYER‘s dissent, except for Part III. I write separately to address the troubling dicta with which the Court concludes its opinion.
I
Given the majority‘s ominous words about late-arising death penalty litigation, ante, at 29-30, one might assume there is some legal question before us concerning delay. Make no mistake: There is not. The majority‘s commentary on once and future stay applications is not only inessential but also wholly irrelevant to its resolution of any issue before us.
II
I am especially troubled by the majority‘s statement that “[l]ast-minute stays should be the extreme exception,” which could be read to intimate that late-occurring stay requests from capital prisoners should be reviewed with an especially jaundiced eye. See ante, at 30. Were those comments to be mistaken for a new governing standard, they would effect a radical reinvention of established law and the judicial role.
Courts’ equitable discretion in handling stay requests is governed by well-established principles. See Nken v. Holder, 556 U. S. 418, 434 (2009). Courts examine the stay applicant‘s likelihood of success on the merits, whether the applicant will suffer irreparable injury without a stay, whether other parties will suffer substantial injury from a stay, and public interest considerations. Ibid.
It is equally well established that “[d]eath is a punishment different from all other sanctions in kind rather than
It is of course true that a court may deny relief when a party has “unnecessarily” delayed seeking it, Nelson v. Campbell, 541 U. S. 637, 649-650 (2004), and that courts should not grant equitable relief on clearly “‘dilatory,‘” “‘speculative,‘” or meritless grounds, ante, at 31 (quoting Hill v. McDonough, 547 U. S. 573, 584-585 (2006)); see also Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam) (vacating a stay where an inmate‘s unjustified 10-year delay in bringing a claim was an “obvious attempt at manipulation“). That is hardly the same thing as treating late-arising claims as presumptively suspect.1
The only sound approach is for courts to continue to afford each request for equitable relief a careful hearing on its own merits. That responsibility is never graver than when the litigation concerns an impending execution. See, e.g., Kyles, 514 U. S., at 422; Woodson, 428 U. S., at 303-304. Meritorious claims can and do come to light even at the eleventh hour, and the cost of cursory review in such cases would be unacceptably high. See Glossip, 576 U. S., at ___ (BREYER, J., dissenting) (slip op., at 21-22) (collecting examples of inmates who came “within hours or days of execution before later being exonerated“). A delay, moreover, may be entirely beyond a prisoner‘s control. Execution methods, for example, have been moving targets subject to considerable secrecy in recent years, which means that constitutional concerns may surface only once a State settles on a procedure and communicates its choice to the prisoner.2 In other contexts, too, fortuity
There are higher values than ensuring that executions run on time. If a death sentence or 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.
Notes
”As a result of his inability to maintain the integrity of his airway for the period of time beginning with the injection of the Pentobarbital solution and ending with Mr. Bucklew‘s death several minutes to as long as many minutes later, Mr. Bucklew would be highly likely to experience feelings of ‘air hunger’ and the excruciating pain of prolonged suffocation resulting from the complete obstruction of his airway by the large vascular tumor.” App. 222. See Connick v. Thompson, 563 U. S. 51, 55-56, and n. 1 (2011) (intentionally suppressed exculpatory crime lab report discovered a month before a scheduled execution); Ex parte Braziel, No. WR-72,186-01 (Tex. Crim. App., Dec. 11, 2018), pp. 1-2 (Alcala, J., dissenting) (disclosure by the State of “new information about possible prosecutorial misconduct” the same day as an execution).