Bucklew v. Precythe

Justia Summary

Under the Supreme Court’s “Baze-Glossip” test, a state’s refusal to alter its execution protocol can violate the Eighth Amendment only if an inmate identifies a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain.” Missouri plans to execute Bucklew by lethal injection using a single drug, pentobarbital. Bucklew presented an as-applied Eighth Amendment challenge, alleging that, regardless whether the protocol would cause excruciating pain for all prisoners, it would cause him severe pain because of his particular medical condition.

The Eighth Circuit and Supreme Court affirmed the rejection of Bucklew’s challenge. The Eighth Amendment does not guarantee a prisoner a painless death. To establish that a state’s chosen method cruelly “superadds” pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method that would significantly reduce a substantial risk of severe pain and that the state has refused to adopt without a legitimate penological reason. Traditionally accepted methods of execution are not necessarily unconstitutional because an arguably more humane method becomes available. Precedent forecloses 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. Identifying an available alternative is a requirement of all Eighth Amendment method-of-execution claims alleging cruel pain. Bucklew failed to present a triable question on the viability of nitrogen hypoxia as an alternative to Missouri’s protocol; he merely pointed to reports from other states indicating the need for additional study. Missouri had a “legitimate” interest in choosing not to be the first to experiment with a new, “untried and untested” method of execution.

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