Bucklew v. Precythe: The Decision [SCOTUSbrief]
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Bucklew v. Precythe: The Decision [SCOTUSbrief]


Bucklew versus Precythe is a case involving
the question of whether it was cruel and unusual to execute an offender via lethal injection. The two issues then are, number one, whether
people who make an as-applied challenge have to show some alternative method that’s feasible
and readily implemented and that significantly reduces the chance of extreme suffering. And, number two, if they do have to meet that
burden, did Bucklew meet it by proposing nitrogen hypoxia as a method of execution? Bucklew says that the one-drug lethal injection
protocol is cruel and unusual as to him because his medical condition, the condition called
cavernous hemangioma, creates risks of suffering resulting from this protocol that don’t exist
with respect to most other prisoners. Bucklew tried to raise two arguments in this
case. The first argument was that the requirement
that the offender has to come up with a feasible, readily implementable alternative method of
execution should not apply to as-applied challenges. Bucklew’s second argument was that he had,
in fact, identified a feasible, readily implementable alternative method of punishment that would
not create the same risk of suffering for him that the lethal injection protocol would
create. Missouri argued that the requirement that
offenders have to identify a feasible, readily implementable alternative method of execution
should be applied to all challenges, not just facial challenges but also to as-applied challenges. Missouri also argued that it should not have
to implement the nitrogen hypoxia method of execution as a result of Bucklew’s challenge
because it was not clear that it would significantly reduce the risk of suffering in this particular
case. The ultimate ruling in this case was that
the requirement that offenders have to identify an alternative method of execution that’s
feasible, readily implementable, and significantly reduces the risk of pain and suffering applies
to all challenges to methods of execution, whether those challenges are facial or as-applied. The Court’s second ruling was that Bucklew’s
proposal, nitrogen hypoxia, was not shown to be feasible, readily implementable, nor
that it would significantly reduce the risk of pain and suffering in this case. It’s an originalist opinion in the sense that
the Court explicitly appealed to the original and historical understanding of the cruel
and unusual punishments clause. On the other hand, the constitutional doctrine
that was most directly at issue in this case, that is, the requirement that offenders have
to identify a feasible, readily implementable alternative method of punishment that will
significantly reduce the risk of pain and suffering, is very, very non-originalist. Justice Breyer expressed his concern about
the fact that offenders are waiting for almost 20 years now after they get sentenced
to death before they are executed. In particular, he disagrees with the Court’s
idea that the remedy for this should be finding ways to create procedural obstacles to Eighth
Amendment claims and thus shorten the time between sentence and execution. Instead, Justice Breyer believes that these
procedural safeguards are necessary but because he does not want to eliminate procedural safeguards
for those sentenced to death, he thinks that maybe the death penalty itself needs to be
eliminated because there’s no way to execute people in a way that is just and fair and
reliable and that’s also sufficiently speedy to meet the requirements of justice. This decision will make it at least marginally
easier for states to impose the death penalty by making it more difficult for offenders
to challenge methods of execution as cruel and unusual.

2 Comments

  • Sathyajith Shankar

    This is the most stupid precedent ever- how are prisoners expected to come up alternative methods? The subject of lethal injection is increasingly complex, and nobody can just come up with a different method. Gorsuch once again, shows his hypocrisy by practising judicial activism.

  • Danish

    If the state has the right to finance the regulated killing of a person, surely that should govern state-funding of abortions, right? After all, a fetus is a person.

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