Supreme Court death penalty case may rest on Kavanaugh vote

A majority of the Supreme Court on Tuesday seemed to be sympathetic to the pleas of a Missouri man on death row, who argues the state’s method of lethal injection will cause him needless suffering due to a medical condition.

But the court grappled with whether Russell Bucklew should have to suggest a less painful way to die and if the lower court was right in assuming the medical professionals carrying out his execution are qualified.


President TrumpDonald John TrumpThe Hill's Morning Report - White House, Congress: Urgency of now around budget GOP presses Trump to make a deal on spending Democrats wary of handing Trump a win on infrastructure MORE’s newest court appointee, Justice Brett KavanaughBrett Michael KavanaughSupreme Court sides with Native American hunter as Gorsuch joins liberals Clash with Trump marks latest break with GOP leaders for Justin Amash ACLU, Women's March to hold nationwide protests over abortion bans MORE, who could be the swing vote in the case, asked if the state can go forward with the execution “even if the method creates gruesome and brutal pain.”

State Solicitor John Sauer argued anyone claiming the state’s method of execution would cause gruesome and brutal pain must offer an alternative under the court’s own ruling in Glossip v. Gross.

In the 2015 case, the justices ruled that inmates have to propose a reasonable alternative that would significantly lower their risk of pain to claim successfully that the state’s method of execution would violate the Constitution's ban on cruel and unusual punishment.

“Is there any limit to that?” Kavanaugh asked.

Sauer said if there is an attempt to deliberately inflict pain for the sake of pain, an alternative method would not be required.

He noted that the court has recognized it’s impossible to completely eliminate all risks of pain when it comes to execution.

Bucklew suffers from a rare medical disease known as cavernous hemangioma, which causes blood-filled tumors to grow in his head, neck and throat. If the state follows its lethal injection protocol, he says the tumors are likely to rupture, causing him to suffocate on his own blood, according to court documents.

The state argues Bucklew has failed to show he is “sure or very likely” to suffer severe pain from Pentobarbital, the state’s lethal injection drug.

Justice Sonia Sotomayor, an Obama appointee, wanted to know Bucklew’s current condition, particularly if the tracheostomy tube that was inserted for a tracheotomy surgery is still in place.

She asked if the trach moots much of Bucklew’s claim, asking if it will minimize the risk of him choking on his own blood.

Bucklew’s attorney, Robert Hochman, said his client still has the trach but there’s no indication of how long it will be in. 

“I don't think it can moot out the case because if the trach is removed, all of the problems return,” Hochman said, but he could not ascertain whether it would be in place for the execution.

"Isn't it your job to find out if it can be removed now?" Sotomayor asked, seemingly perturbed by the lack of information.

She stated that the court is hearing a totally different case if Bucklew has a trach. 

While Bucklew argues he’s not required to provide an alternative method of execution, he has proposed death by nitrogen hypoxia, or lethal gas.

State officials, however, say lethal nitrogen is not a reasonable alternative.

“Nitrogen hypoxia has never been tried by any state, Sauer said. “At this time, no protocol exists for execution by nitrogen hypoxia. No state has ever tried it.”


It was this argument that appeared to resonate with Chief Justice John Roberts, a George W. Bush appointee. He asked Bucklew’s attorney how it can be a reasonable alternative if it's never been used before.

“Well, one of the things we see often in the Eighth Amendment cases is the point or allegation that things can go wrong regardless of the method of execution. And it seems to me that if you have a method that no state has ever used, that danger is magnified,” he said.

Bucklew, who was convicted of forcibly raping and kidnapping his ex-girlfriend, murdering her boyfriend, and shooting at police in 1996, was scheduled to be put to death on March 20 until the Supreme Court stayed his execution by a 5-4 vote. 

The chief justice, along with Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, of the court’s conservative wing, said they would have denied his request for a stay.

Since Kavanaugh was not yet on the bench, he could prove to be the deciding vote in the case. 

A ruling is due to be released before the end of June.

-- Updated 1:55 p.m.