SCOTUS: There is No Right To Be Executed Painlessly

Good.

Russell Bucklew’s   girlfriend broke up with him, so he threatened her. She ran to a neighbor’s house, but Bucklew chased her down. First he shot the neighbor dead. Then he beat his girlfriend and raped her. Police arrested him after a shootout, but Bucklew eventually escaped so he could attack his girlfriend’s mother with a hammer.

Bucklew was tried and convicted, then sentenced to death under Missouri law. Does this conduct, once proven in court, warrant the death penalty? Personally, I would prefer the bar to be set a bit higher, but I’m not disturbed, as a member of society, to be partially responsible for Bucklew’s demise. He made it clear that he has no intention of abiding by the social contract, and society has no obligation to let him keep breathing.

Two weeks before his schedule execution, Bucklew raised a medical condition as a unique barrier for the use on lethal injection on him, as described by the Court:

“Mr. Bucklew suffers from a disease called cavernous hemangioma, which causes vascular tumors— clumps of blood vessels—to grow in his head, neck, and throat. His complaint alleged that this condition could prevent the pentobarbital from circulating properly in his body; that the use of a chemical dye to flush the intrave- nous line could cause his blood pressure to spike and his tumors to rupture; and that pentobarbital could interact adversely with his other medications.”

Based on this, his lawyers argued that for Missouri to use its standard drug to kill him violated the  Eighth Amendment prohibiting “cruel and unusual punishment.” In its  5-4 ruling this week, the United States Supreme Court ruled that the Eighth Amendment does not guarantee a “painless death” in executions. Justice Neil Gorsuch, writing for the familiar conservative majority, argued that Russell Bucklew’s rare medical condition raising the danger of hemorrhage and choking does not constitute a constitutional barrier to execution.

That “serial rapist” Brett Kavanaugh wrote a concurring opinion  emphasizing that Bucklew had the burden to propose a practical and legal execution method if his argument was to prevail, and didn’t. Kavanaugh wrote in part, “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.” The implication is that this wasn’t a good faith claim by Bucklew, but a stalling tactic.

Gorsuch wrote in part, after pointing out that many methods of execution have been painful in the past without the Court finding that they were “cruel and unusual,”

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 distin- guishes 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., con- curring 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 . . . “

Justices Ginsberg, Breyer, Sotomayor and Kagan dissented vigorously, asserting that the unusual condition  of his prisoner made the method cruel and unusual, because there was  a “serious risk that his execution will be excruciating and grotesque.”

Are not all executions grotesque? Justice Stephen G. Breyer had no problem with the possibility that the condemned man was stalling, writing, “Today’s majority appears to believe that because “[t]he Constitution allows capital punishment,” . . . the Constitution must allow capital punishment to occur quickly.”

I see nothing wrong with speeding up the nearly endless capital punishment process. Conviction, review, appeal, then open the cell and shoot the condemned point-blank between the eyes before he knows what’s happening: quick, humane, and painless.

The opinions are fascinating and thought-provoking, and you can read them here.

Now consider the first line of Slate’s article about the opinion: “Toward the end of his appalling opinion allowing Missouri to torture a man to death…”

36 thoughts on “SCOTUS: There is No Right To Be Executed Painlessly

  1. Personally, I think that we should strive to make all executions painless, and if someone has a condition that makes injections troublesome, they should experience a different method of execution, like carbon monoxide, cyanide, the impact hammer they use to kill cattle, etc.

    Inflicting pain can NEVER be the actual point or goal. I think avoiding a situation like this with alternatives would be prudent, but it can’t get in the way of justice. The anti-death penalty people evidently forget those that were executed in agony because their activism made the original lethal injection cocktail harder to obtain. There are plenty of reasonable reasons and avenues to oppose capital punishment and convince others of its injustice, but standing in the way of a painless death that has been decreed by society is not an appropriate or ethical one. The agony of these unfortunates is entirely their fault.

    On the other hand, the way jurisdictions have been failing to give condemned inmates their last meals or even a chaplain of the proper faith… I’m beginning to falter on my certainty that the death penalty can be delivered justly. If we can’t send them to the next dimension with the assurances of whatever faff they personally believe awaits them, we should not be in the business of sending people to their ancestors.

    • Inflicting pain can NEVER be the actual point or goal.

      Correct me if I’m wrong, but I don’t think it ever has been the goal of executions to inflict pain anywhere in the United States. It may be that some states were indifferent to pain (perhaps even too indifferent for constitutional purposes), but I doubt very much it has ever been the actual goal of a legal method of execution.

      On the other hand, the way jurisdictions have been failing to give condemned inmates their last meals or even a chaplain of the proper faith… I’m beginning to falter on my certainty that the death penalty can be delivered justly.

      Last meals are not being denied. Choice of last meals is being denied in some jurisdictions. I can’t for the life of me quite grasp why a taxpayer should be on the hook for the exorbitance of found guilty of a crime so heinous he is condemned to death. At least the family doesn’t get billed for the method of execution, as they do in China. To be honest, I wouldn’t be the least bit offended if the cost of the execution were billed to any estate the condemned man was able to retain.

      As to last rites, that’s a bit more problematic for me, but for the irreligious it wouldn’t be. Suppose the condemned person requires rites from a satanic cult or other uncommon religious faith that requires extraordinary circumstances, like the sacrifice of a live animal or something similarly unorthodox? When we make accommodation for one, we must make accommodation for all.

      I think a reasonable good-faith effort to invite any willing minister of a particular faith to attend is sufficient, and if the last rites don’t interfere with the execution, allow them. If none come forward or the last rites interfere, the condemned must make his own peace with God.

    • If we can’t send them to the next dimension with the assurances of whatever faff they personally believe awaits them, we should not be in the business of sending people to their ancestors.

      Why should their personal assurance be factored into the equation? If they’ve committed an offense subject to death, I don’t think they are entitled to such assurance. We should afford them access to ordinary rites, but I don’t think they’re owed more that that.

  2. I’m not a fan of capital punishment, I just don’t think that’s a power the State needs to have in order to fulfill its function in society. However, given that we have it, it seems strange to me that we should be preoccupied with making executions painless. A painless death, after all, is not something that’s in the cards for the vast majority of innocent people. I fail to see why a shotgun to the head is too cruel for a murderer while the crushing pain and terror of a heart attack, or months of torture from cancer, is acceptable for someone like me.

    • I fail to see why a shotgun to the head is too cruel for a murderer while the crushing pain and terror of a heart attack, or months of torture from cancer, is acceptable for someone like me.

      Perhaps the accused should be executed in the manner in which he killed his victims. That would work for me. However, it might be hard to find someone willing to beat a man to death with a hammer, like his last attempted murders.

      • And if we could find someone willing to beat a man to death with a hammer then I would want to keep well away from that person.

        • Perhaps we allow the condemned to execute each other? They have little to do while their case winds through the legal system, and they can only die once in each case. I bet a serial killer would not have a problem with adapting his/her methods to kill in the manner their victim did.

  3. A grotesque topic, yet it seems to me that a shot to the head with a high-powered rifle can only result in instant death and a painless one. A high-powered rifle with a special round: what could be cheaper, more effective?

    The punishments get ‘cruel and unusual’, IMO, when they involve strange injection technologies. The mental anguish must be very real. But one shot? It is over in a millisecond.

    • I have always thought a firing squad a fine method of execution. Inexpensive, too. Have some aim for the CNS and some for the heart. It would work 100% of the time, and I expect there would be no pain at all.

  4. Ok Jack, one of those areas that I disagree as the condition cause this form of lethal injection to create conditions that are basically torturing him to death, gas, the firing squad, hanging, electrocution, would all provide less trauma. I disagree with capital punishment due to my religious beliefs, so those who feared that. A majority of Catholics on the court would mean their religious beliefs would get in the way need not fear those Catholics on the court. But my feelings on capital punishment aside, if we must have it it must be humane as possible. In this case the method is not humane and as such I agree with those that dissent that it is cruel, unfortunately in our society that is not that unusual.-Rip

    • Rip, an important element in the decision was that the plaintiff did not offer an alternative and was seen as a delay tactic.

      • But the claim he’s making about his medical condition and the consequences of it are either true or false, and should be decided on that merit alone. It doesn’t matter that it may result in delay.

        And personally I don’t understand the burden on the convict to suggest an alternative. The option, sure. That’s just in his own best interests. But it’s not as if he holds the power to compel the State to execute him by any particular method, so why is it his responsibility to advocate for an alternative??? He literally has no say in the matter except where a court order might be in line with his wishes (and in that case it’s the court who has a say, not him).

        –Dwayne

        • This probably has to do with the fact that the risk is only a possibility and probably a remote one. If you come before the court and say “You can’t execute me because I have a rare condition that has a 0.1% chance of having a complication and that complication has a 5% chance of making my execution painful” and you don’t suggest an alternative execution method (and most states have several), they don’t take your objection seriously. If you say “I have a rare condition that could make my execution painful by the preferred method, I would rather die by firing squad”, they take your complaint more seriously.

      • That fact is the pain his condition would cause makes it cruel, the state in question use to use gas which would be less painful. Lethal injections were instituted as they were seen as more humane, in this case they are not. It should be upto the state to find the most humane way to carry out the execution in this case.
        To Wayne below this is why the court was incorrect but that is why we have a legislative to now fix this hole in the law. If they will. Our three divisions of Government allow for checks and balances this is when it helps us find things we have not addressed yet, states is we are going to have capital punishment Ned to have more then one option available in cases like this. Which are rare his condition affects less then 1% of the population. We should also make sure right religious obligations are met.

  5. This seems like a slippery slope to me, requiring painless executions: What if some convicted murderer claims he will suffer emotional distress when he walks the Green Mile? The court decided correctly.

      • That seems a patch for this whole painless folderol. This execution was decided for a particularly heinous crime that society, in the form of even our flawed justice system decided, decided to remove the threat permanently like a rabid animal. Next someone would say they can’t be executed because someone loves them. Of course, that ignores the ones that loved the dead neighbor and the torture of the fleeing girlfriend and mother.

        The buck stops here with the execution.

        I see the cruel and unusual punishment as just as much about other crimes as capital crimes, that copying a VHS for your own use does not merit drawing and quartering. For capital crimes, after the appeals period, humane and quick should be more the standard.

        Executing in some slower and some accident prone method like hanging is not as much an issue because it is painful. If someone has murdered in such a way they are being expelled like a poison, they really cannot claim mercy for pain after what they inflicted. I thin the ctuel and unusual punishment for executions is more what the criminal’s death does to the witnesses and public. Executions were often crowd-pleasers, from the guillotine to hangings. “Bring a picnic, make a day of it!” Now that desensitizes and makes painful death people were jolly about, No matter how vile the criminal, having a large audience on bleachers watching someone be killed, cannot be good. Executions when absolutely necessary should be solemn: grief and respect for the direct and indirect victims- even the criminal’s family. We should not encourage schadenfreude in executions, but that does not mean executions are to be banned.

        I’m just surprised it was that close. Didn’t they want to support and believe the women involved?

  6. What stuck out to me is the penultimate paragraph in Breyer’s dissent, in which he states that as we move forward there may be no constitutional way to implement the death penalty. That, I submit, is one more reason we need to either get that sixth conservative justice on the Court or get Breyer out of there. Breyer already came within one step of saying the death penalty should be outlawed in a 2015 dissent in which only Justice Ginsburg joined (surprise surprise) and which got a pretty severe smackdown from Justice Scalia. There is something fundamentally wrong with a way of thinking that worries so much about the pain, humiliation, or other bad consequence suffered by a murderer and thinks almost not at all about his victim. It’s that kind of thinking that keeps Peter Sutcliffe (the Yorkshire Ripper) sitting in a UK prison on the taxpayers’ dime, Fowzi Nejad (the only terrorist to survive Operation Nimrod) living in London on the public dole, and means Michael Adebowale (who participated in what I can only describe as the assassination of Drummer Lee Rigby, for no reason other than he was a soldier) will see the parole board in 45 years. It’s also that kind of thinking that enabled Charles Manson to dodge death until the ripe old age of 83 and would have kept William Spengler (the West Webster shooter, who wrote that, “I still have to get ready to see how much of the neighborhood I can burn down, and do what I like doing best, killing people,”[ before setting a fire and ambushing the responding firemen, killing two of them) alive, perhaps to be paroled a second time, since he had already been imprisoned for 18 years after killing his grandmother with a hammer, had he not saved the authorities the trouble by killing himself.

    Frankly, I don’t think this thinking even represents respect for the system, misguided compassion, or the overwhelming fear that someone innocent will suffer the one punishment that can’t be undone nor compensated for. All too often abolition is couched in terms of moral absolutes based on following the group (the U.S. is one of a very few industrialized nations to retain the penalty), irrelevance that sounds relevant (too many blacks get executed) or just plain lazy thinking (all the hip, cool people are against it).

    Just out of curiosity, Jack, how high should the bar be set before someone fries? I can probably name at least 20 circumstances that would be appropriate:

    1. Killing a cop, corrections officer, fireman, or EMT in the discharge of their duties. (obviously)
    2. Killing on contract (murder for hire).
    3. Killing while committing another violent offense (robbery, rape, etc.)
    4. Killing while in furtherance of the goals of a nation whose interests are adverse to ours. (Homicidal traitors are the worst)
    5. Killing someone because of a protected characteristic (race, religion, gender, orientation).
    6. Killing someone because of employment status (no targeting off-duty cops, members of the military, or veterans).
    7. Killing through use of a means designed to cause mass casualty (even if no mass casualty results).
    8. Killing more than one person in one incident.
    9. Killing a witness to a crime. (No killing someone for simply being in the wrong place at the wrong time and seeing the wrong thing).
    10. Killing someone for difference of political opinions (no targeting prominent liberals or conservatives simply because they are, no attacking someone and trying to kill him for wearing a MAGA hat).
    11. Thrill killing (If you kill someone just to see him die, you die too).
    12. Killing during the committal of a war atrocity (we must police our own).
    13. Killing by torture (including torturing someone and death resulting, even if you didn’t intend to kill him).
    14. Killing during an act of mutiny (we want to discourage the military and paramilitary turning on their superiors).
    15. Killing an elected official. (some overlap with #10, but different enough to merit a separate designation)
    16. Killing a newborn. (we want to discourage “prom moms” from killing their children and dumping them in the trash, it’s an outrage that Amy Grossberg is walking around free).
    17. Killing a child. (we don’t need any more James Bulgers killed, thank you very much)
    18. Killing during an incident of bullying (we want to discourage bullying or practical joking that could end in death).
    19. Treason.
    20. Espionage.

    Well?

    • “5. Killing someone because of a protected characteristic (race, religion, gender, orientation).”

      Steve, I agree with your list except for this one. To me, this falls under punishing someone because of what they think. Your mileage may vary, of course.

      • That may need some refinement. The idea isn’t to punish someone for what they think, but for what they act on. It’s your own affair if you like people, or you loathe people, but when you hurt or kill them just for what they are, as opposed to what they’ve done, that’s wrong. Not that the other is all that great, since we’re not supposed to take the law into our own hands, but…

    • I’d strike #5 and #10 as “thought crimes”. Maybe #18 and a few of the others as well, depending on some clarification.

    • How about this one? Case is Mason v. Commonwealth, 254 S.E.2d 116 (1979): From the opinion:
      “the record shows a crime perpetrated upon an elderly woman whom the defendant did not know. He stated that the reason for so acting was that he just made up his mind to rape and kill someone. He went to the victim’s house at night, threatened her, and forced her to disrobe. He instructed her to close the curtains. When the victim cried out for help, he knocked her ‘across the room’ and then raped her. While the victim was pleading for her life, defendant struck her several times about the head and body with an ax and ‘shoved’ the axe handle into her rectum. At some point defendant drove a nail into the victim’s left wrist and and fractured two bones in her lower left arm. After raping and beating the victim, who was then close to death, defendant place her in a chair and set fire to it. . . ”
      Case goes on to say that the next day, Mason broke into another house and raped a young girl.

      This guy shyould have been staked out at low tide.

  7. Here is the solution: nitrogen! Oklahoma is going to use nitrogen to asphyxiate criminals. Painless, non-toxic, and environmentally friendly! Don’t pay too much attention to Reuters’ ‘science’, nitrogen does not cause death any more than eating only lettuce causes death. The lack of oxygen causes death. Since the prisoner is breathing in air (without oxygen), there is no adverse feeling of suffocating. People accidentally exposed to high nitrogen concentrations just report feeling dizzy for some reason, then passing out. I had a coughing fit once where I passed out from lack of oxygen and there was no real feeling of…well anything. I was coughing, then I woke up on the floor.

    The great thing about this is that it requires no medical professional and you can actually execute an entire room full of people at once. If you are worried about the anxiety of the prisoner, you don’t even have to tell them they are being executed. You can just put them in a room and tell them to wait here for a few minutes. Pump in nitrogen and all done. We should thank the Europeans for refusing to sell us medication and forcing us to find new, inventive ways to execute dangerous criminals.

    https://www.reuters.com/article/us-oklahoma-executions/oklahoma-to-become-first-u-s-state-to-use-nitrogen-gas-for-executions-idUSKCN1GQ3CT

  8. The great thing about this is that it requires no medical professional and you can actually execute an entire room full of people at once.

    Really? It has wider potential than I’d thought.

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