Bucklew v. Precythe

139 S.Ct. 1112

203 L.Ed.2d 521

Russell BUCKLEW, Petitioner

v.Anne L. PRECYTHE, Director, Missouri Department of Corrections, et al.

No. 17-8151

Supreme Court of the United States.

Argued November 6, 2018

Decided April 1, 2019

Cheryl A. Pilate, Morgan Pilate LLC, Kansas City, MO, Robert N. Hochman, Lawrence P. Fogel, Steven J. Horowitz, Kelly J. Huggins, Suzanne B. Notton, Matthew J. Saldaña, Heather B. Sultanian, Sidley Austin LLP, Chicago, IL, for Petitioner.

Joshua D. Hawley, Attorney General, Office of the Missouri, Attorney General, Jefferson City, MO, D. John Sauer, State Solicitor, Joshua M. Divine, Julie Marie Blake, Peter T. Reed, Deputy Solicitors, Michael Joseph Spillane, Assistant Attorney General, for Respondents.

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 with a knife. Frightened to remain in the home they had shared, Ms. Ray sought refuge with her children in Michael Sanders' nearby residence. But then one night Mr. Bucklew invaded that home. Bearing a pistol in each hand, he shot Mr. Sanders in the chest; fired at Mr. Sanders' 6-year-old son (thankfully, he missed); and pistol-whipped Ms. Ray, this time breaking her jaw. Then Mr. Bucklew handcuffed Ms. Ray, drove her to a secluded spot, and raped her at gunpoint. After a trooper spotted Mr. Bucklew, a shootout followed and he was finally arrested. While all this played out, Mr. Sanders bled to death. As a coda, Mr. Bucklew escaped from jail while awaiting trial and attacked Ms. Ray's mother with a hammer before he could be recaptured.

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, 119 S.Ct. 826, 142 L.Ed.2d 683 (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, 122 S.Ct. 374, 151 L.Ed.2d 284 (2001) ; Bucklew v. Luebbers , 436 F.3d 1010 (CA8), cert. denied, 549 U.S. 1079, 127 S.Ct. 725, 166 L.Ed.2d 565 (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 out using three drugs: sodium thiopental, pancuronium bromide, and potassium chloride. And by that time, too, various inmates were in the process of challenging the constitutionality of the State's protocol and others like it around the country. See Taylor v. Crawford , 457 F.3d 902 (CA8 2006) ; Note, A New Test for Evaluating Eighth Amendment Challenges to Lethal Injections, 120 Harv. L. Rev. 1301, 1304 (2007) (describing flood of lethal injection lawsuits around 2006 that "severely constrained states' ability to carry out executions"); Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L. Rev. 49, 102–116 (2007).

Ultimately, this Court answered these legal challenges in Baze v. Rees , 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (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, 128 S.Ct. 1520. 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, 128 S.Ct. 1520. Justice BREYER reached the same result because he saw no evidence that the protocol created "a significant risk of unnecessary suffering." Id. , at 113, 128 S.Ct. 1520. And though Justice Stevens objected to the continued use of the death penalty, he agreed that petitioners' evidence was insufficient. Id. , at 87, 128 S.Ct. 1520. 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 (CA8 2007), cert. denied, 553 U.S. 1004, 128 S.Ct. 2047, 170 L.Ed.2d 793 (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 contravention of Missouri's Administrative Procedure Act. Middleton v. Missouri Dept. of Corrections , 278 S.W.3d 193 (Mo.), cert. denied, 556 U.S. 1255, 129 S.Ct. 2430, 173 L.Ed.2d 1331 (2009). They also unsuccessfully challenged the protocol in federal court, this time alleging it was pre-empted by various federal statutes. Ringo v. Lombardi , 677 F.3d 793 (CA8 2012). And Mr. Bucklew sought to intervene in yet another lawsuit alleging that Missouri's protocol violated the Eighth Amendment because unqualified personnel might botch its administration. That lawsuit failed too. Clemons v. Crawford , 585 F.3d 1119 (CA8 2009), cert. denied, 561 U.S. 1026, 130 S.Ct. 3507, 177 L.Ed.2d 1092 (2010).

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. Bucklew now contended that the State's protocol would cause him severe pain because of his particular medical condition. 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 intravenous line could cause his blood pressure to spike and his tumors to rupture; and that pentobarbital could interact adversely with his other medications.

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, 134 S.Ct. 2333, 189 L.Ed.2d 206 (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. ––––, 135 S.Ct. 2941, 192 L.Ed.2d 976 (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. ––––, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015), rejecting a challenge to Oklahoma's lethal injection protocol. There, the Court clarified that THE CHIEF JUSTICE's plurality opinion in Baze was controlling under Marks v. United States , 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d...