Supreme Court rejects anti-death penalty appeal

The Supreme Court has ruled in a 5-4 decision that a death-row inmate cannot challenge an execution method that he says will cause him excrutiating pain.

The case is Bucklew v. Precythe, decided on April 1. The Eighth Amendment prohibits executions if they cause unnecessarily cruel pain, but the inmate can only win the case if he can show the state is not using more humane ways of killing him, and that the state is refusing that alternative method without a legitimate reason. In this case, Bucklew has a rare disorder that will cause his blood pressure to spike once the state injects him with the death serum, causing his tumors to rupture and result in serious pain. The dissenting opinion describes the day-to-day reality of Bucklew's physical condition, and it is nothing you want to read over breakfast. (Bucklew leaks blood onto his face and has to wipe his face clean every morning).

Years ago, when I was reading about the late Chief Justice Rehnquist, someone noted that when he took on criminal procedure cases, Rehnquist did not hesitate to describe the inmate's crime in detail. Such a discussion was not really necessary, because criminal procedure does not usually turn on the horrendous crimes these people have committed, but, as someone said in describing Rehnquist's writing style, someone has to pay for this crime. I am reminded of this as I read the Bucklew decision; Justice Gorsuch lays out Bucklew's crimes, and it's positively awful, something out of a b-grade horror movie. This is the kind of case that even death penalty advocates sometimes point to in claiming the death penalty is appropriate in rare circumstances. Gorsuch knows that Bucklew's victims suffered horrible deaths, and that actually factors into the analysis.

And speaking of the anti-death penalty advocates, Gorsuch addresses them in this ruling, noting the many times Bucklew tried to stave off execution with new arguments that extended the case over the course of many years. Bucklew's crime spree -- at least for purposes of this case -- began in 1996, more than 20 years ago. Gorsuch repeatedly notes how the case dragged along with new arguments and legal theories. But that legal strategy is now over. Bucklew will die for his crimes.

Since this is a 5-4 ruling, you can't help but wonder how this case would have turned out had the time-space continuum taken a few detours. What if Mitch McConnell gave Obama's Supreme Court choice, Merrick Garland, an up-and-down vote? (Gorsuch was the beneficiary of that maneuver). What if the Democrats won a few extra Senate seats and rejected Brett Kavanaugh for the Court? What if Hillary Clinton campaigned in Wisconsin? But the horse is out of the barn. We have a rock-solid 5-4 conservative majority on most legal issues for the first time since the New Deal. We will be seeing more decisions like this.

Gorsuch summarizes the history of the death penalty in the U.S. and the Eighth Amendment jurisprudence that the Supreme Court has crafted over the years to ensure that people do not suffer cruel and unusual punishment. What the majority says in this case is 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." In the end, the Eighth Amendment "does not demand the avoidance of all risk of pain in carrying out executions," and the Constitution offers the states some deference in their choice of execution procedures. While Bucklew says the death injection will cause unspeakable pain, the Court concludes, he has not identified any alternative method of execution, and even if he did, he would have to show that any alternative method "would significantly reduce a substantial risk of severe pain."