Months before the U.S. Supreme Court sparked fresh outrage over the death penalty by upholding the planned execution of a man who risks drowning in his own blood, Justice Stephen Breyer invited Missouri Solicitor General D. John Sauer to consider the matter “as a person rather than a lawyer.” It was November 2018. Oral arguments in Bucklew v. Precythe were about halfway done. The issue at hand: Russell Bucklew, condemned to die for a murder and rape committed in 1996, suffered from a rare medical condition called cavernous hemangioma. Blood-filled tumors in his throat, neck, and mouth made it difficult for him to breathe — at night he slept at a 45 degree angle to avoid choking. If subjected to a lethal injection, experts warned, the tumors could rupture, causing a gruesome death. To avoid this fate — and as required by law when challenging a state’s execution protocol — Bucklew chose a different way to die: nitrogen gas, currently allowed in Missouri and three other states. But his proposal was rejected without a trial or hearing. The courts conceded that Bucklew may well suffer under lethal injection, but found “no basis to conclude that Bucklew’s risk of severe pain would be substantially reduced by use of nitrogen hypoxia instead.” But a dissenting judge on the 8th Circuit Court of Appeals was not convinced. There were too many lingering questions. Would Bucklew be lying flat during the execution — and would his airway be blocked as a result? How much pain would he experience if subjected to Missouri’s one-drug pentobarbital protocol versus nitrogen gas? The state’s medical expert claimed that the pentobarbital would render him immune very quickly. Bucklew’s expert disagreed. Then there were unsettling questions brought up in the first half of the oral argument. Shielded by Missouri’s secrecy law, the state would not disclose the identities of anyone involved in carrying out the execution. So there was no way to know their qualifications — or their preparedness should something go wrong. The last time Missouri was poised to execute Bucklew, his attorney told the justices, the execution team “got a one-page summary of his condition. … It didn’t mention the tumor in his throat. It did not indicate any breathing issues.” With so many lingering uncertainties, Breyer suggested to Sauer, it seemed logical to do more fact-finding. “Go back and hold a full hearing on it,” he said. Present the evidence and consider the alternatives. “Why not?” Untried and Untested One answer is that’s just not how the death penalty works. Medical practitioners may gather all information to ensure a risky procedure goes smoothly, but lethal injection is only designed to look clinical. The end goal, after all, is death. Besides, prosecutors aren’t the people who will be faced with killing a man strapped to a gurney. They have different priorities. “First, the state of Missouri has a compelling interest in seeing this just and lawful sentence is carried out as quickly as possible,” Sauer told Breyer. To send the case back for further inquiry “would interject yet more delay before the execution of a sentence that’s been in place for 22 years now.” Plus, there was a problem with Bucklew’s chosen alternative. “At this time, no protocol exists for execution by nitrogen hypoxia. No state has ever tried it.” In its 2008 ruling in Baze v. Rees, Sauer argued, the court said repeatedly “that an alternative method of execution that is untried and untested, that no state has ever used, that no study supports showing its efficacy, is not an alternative that’s reasonable.” For anyone who has paid attention to the controversies over lethal injection in the past decade, this argument was specious at best. It was a distortion of Baze, for one. (In that decision, which rejected a challenge to the country’s prevailing execution protocol, Chief Justice John Roberts wrote that it did not violate the Eighth Amendment to deny condemned prisoners the option of “untried and untested” alternatives to lethal injection — not that new alternatives should never be an option at all.) But more to the point, “untried and untested” has been the name of the game for years when it comes to executions. After Baze, states strayed wildly from the three-drug protocol upheld by the court, swapping out old drugs with products never before used in lethal injection. One-drug, two-drug, and three-drug combinations were tried and discarded across the country, with a series of botched executions generating revulsion and controversy along the way. Death penalty opponents have decried these executions as human “experiments.” But Dr. Joel Zivot, a veteran anesthesiologist and the expert in the Bucklew case, argues that it is actually worse than that. An experiment is a scientific inquiry; the testing of a hypothesis based on some kind of foundation. The states’ approach to lethal injection has been far more reckless and cruel. Calling it an experiment, Zivot said, “gives credibility where no credibility is deserved.”

Photo: Janelle Stecklein, Community Newspaper Holdings Inc. via AP

State-Sanctioned Torture The chaos over lethal injection eventually led to the case that is the precursor to Bucklew, and which is critical to understanding it: Glossip v. Gross, decided in 2015. Following the gruesome 2014 execution of Clayton Lockett in Oklahoma, a man named Charles Warner, who was next in line to die, sought an injunction in district court, protesting the “ever-changing array of untried drugs of unknown provenance.” The courts denied the challenge — Neil Gorsuch, a 10th Circuit judge at the time, was among those who rejected his petition — and Warner was executed in January 2015. Witnesses reported his last words were “my body is on fire.” Just days after his death, however, the Supreme Court granted certiorari in the challenge to Oklahoma’s execution protocol, with a man named Richard Glossip replacing Warner as the named plaintiff. The drug at the center of the case was midazolam. Experts insisted the sedative was incapable of rendering a person insensate to the pain associated with lethal injection. But that didn’t seem to trouble conservatives on the court. “Because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain,” Justice Samuel Alito reasoned in Glossip. “After all, while most humans wish to die a painless death, many do not have that good fortune.” Glossip was a travesty. The oral arguments were spiteful and tense; Alito and and then-Justice Antonin Scalia blamed anti-death penalty activists for making it impossible for states to acquire reliable execution drugs, making clear that they would settle for a lesser alternative. The 5-4 decision sanctioned an execution protocol that was rooted in junk science and peddled by a state that would be revealed to have misled the court. Most devastating, Glossip imposed a grim new requirement that would make it nearly impossible to challenge lethal injection: People on death row now had to offer an alternative way for the state to kill them. This “second prong” of Glossip, as it is known in legal terms, put a major burden on the condemned and their attorneys. It also put medical experts in an ethical quandary; few would be willing to overtly endorse a method of execution as a reasonable alternative. As death penalty lawyers lost case after case, new evidence emerged that states had been quietly torturing people to death on the gurney. It came to light at a trial over Tennessee’s lethal injection protocol last summer, where a slew of witnesses testified to disturbing scenes during executions using midazolam. Their descriptions were backed up by a pathologist who had reviewed every available autopsy of people executed with the drug and found evidence of pulmonary edema, a buildup of fluid in the lungs, indicating that the condemned had drowned in their own fluids. A federal judge in Ohio was so disturbed by this evidence earlier this year, he issued a ruling decrying midazolam executions as akin to waterboarding — a finding that led the newly elected governor to put scheduled executions on hold. It is against this backdrop that the Supreme Court handed down its controversial 5-4 decision in Bucklew earlier this week. In his opinion, Gorsuch reiterated what Alito wrote in Glossip, that the Constitution “does not guarantee a prisoner a painless death — something that of course, isn’t guaranteed to many people, including most victims of capital crimes.” Only executions that were deliberately cruel would be considered unconstitutional. Gorsuch’s opinion sparked shock and indignation. Commentators called it “bloodthirsty,” “medieval,” and “immoral,” a guarantee that more people will die “in agonizing pain.” Legal analysts warned that it dismantled the “evolving standards of decency” framework that has been so fundamental to Eighth Amendment jurisprudence, while marking “the start of a new, brutal era in American capital punishment.” In truth, it is hard to know how Bucklew might impact Eighth Amendment law beyond death penalty cases. And on this front, it would be hard to do more damage than has already been done. Neither Baze nor Glossip had much to say about “evolving standards of decency.” Both rulings upheld methods of lethal injection — once seen as advanced and enlightened — at the very moment they were being revealed to be just as cruel as its predecessors. Although the Supreme Court has curtailed the execution of vulnerable populations — juvenile defendants, people with mental disabilities — it has always given constitutional cover to even the most grotesque executions. While the ruling in Bucklew is certainly callous and cruel, it is also a reminder of how little most Americans have paid attention to what states have been doing in their name. For the people on death row, the court legalized torture long ago.

A group of death penalty opponents hold a vigil outside St. Francis Xavier College Church in St. Louis, hours before the originally-scheduled execution of Missouri death row inmate Russell Bucklew on May 20, 2014. Photo: Jeff Roberson/AP

Build Your Own Gas Chamber So why did Bucklew strike a nerve? For one, it was one of the first death penalty rulings handed down by the new Supreme Court bench. For those seeking clues on just how cruel the new conservative court might be going forward, Bucklew certainly gives reason for alarm. Bucklew only made it to oral argument in the first place because of the bench as it existed on March 20, 2018 — the day Missouri planned to kill him. To win a stay of execution, five Supreme Court justices must vote in favor — Roberts, Gorsuch, Alito, and Clarence Thomas all voted against. (Then-Justice Anthony Kennedy, the longtime swing voter in death penalty cases, voted in favor.) A few weeks later, the justices agreed to consider Bucklew’s claim that executing him would violate the Constitution. But in the intervening months, Kennedy left the court and was replaced by Brett Kavanaugh. Bucklew would be his first death penalty case. To his credit, Kavanaugh asked some key questions during the oral argument last fall, pushing Missouri’s solicitor general to answer whether there was any constitutional limit to the suffering imposed by an execution method in the absence of a viable alternative. (“So you’re saying that even if the method imposes gruesome, brutal pain, you can still go forward?” Kavanaugh asked. Yes, Sauer said, unless the punishment was seen as “superadding terror, pain, or disgrace.”) But ultimately, Kavanaugh fell in line with his right-wing colleagues. For those in the trenches of lethal injection litigation, there is plenty to hate about Bucklew. But it is hardly a shock. “It’s disappointing that the court seems to be wedded to this idea that defendants have this obligation to endorse methods of execution,” said Tennessee Federal Public Defender Kelley Henry, calling Bucklew “an additional tie on our hands.” At the same time, Henry said, “the court did clear up a dispute in the lower courts.” Until Bucklew, it was unclear whether Glossip required the condemned to propose alternatives that were already on the books in their respective states. Bucklew held that any existing execution method that petitioners believed could reduce the risk of pain is on the table. In the through-the-looking-glass world of lethal injection litigation, this is what passes as progress. Henry points out the double standard that exists among the justices over “untried and untested” execution methods. (“It seems to me that if you have a method that no state has ever used, that that danger is magnified,” Roberts mused at oral arguments last fall.) “If the state wants to experiment on its own, that’s fine,” Henry says. “But if we want to say that the state’s method is unconstitutional,” and propose an alternative method, “we have this additional burden of proof.” Indeed, one of the most gratuitous sections of Gorsuch’s opinion is a portion criticizing Bucklew’s “bare bones proposal” of using nitrogen gas to kill him. Among the “essential questions” Bucklew failed to address: “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 other 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.” To Zivot, the alternative method requirement was already bad enough. Now “the question is, are you therefore asking Bucklew to build his own gas chamber? And then ‘with how many bricks?,’ I suppose, and ‘what kind of chair?,’ and ‘where would the nitrogen go?’ And then he would have to conduct some sort of test, I guess, with volunteers, and try them out and see perhaps a randomized prospective trial comparing, say, lethal injection to nitrogen hypoxia or some such thing. Obviously it’s absurd.” There is an additional irony in Gorsuch’s insistence on a better blueprint for executions. Like its historical predecessors, lethal injection was never the subject of rigorous study by the states that have adopted it. From its invention in the 1970s, the design was merely copied from one state to the next, with prison officials tasked with choosing drugs and figuring out doses. In recent years, states have relied on increasingly dubious sources, seeking out compounding pharmacies to acquire drugs, while occasionally breaking federal law. To ward off scrutiny, states have passed measures to keep secret their sources, claiming that intimidation by anti-death penalty zealots creates a security risk.