A lethal Judgement: A Critical Analysis of Bucklew vs Precythe


Author: Ms. Teresa Dhar, CNLU, Patna


In 1996, Missouri, Russell Bucklew had brutally murdered his girlfriend, her mother and the family that had given shelter and protection to the girlfriend. The brutality of the murder had led to his conviction by the Missouri jury which couldn’t be overturned and the legal challenges were completed by 2006. However, during this several states including Missouri changed the protocol for a death sentence from legal gas exposure to lethal injection of drugs. Several executions had to stay and only two inmates had been executed in 4 years. Bucklew (who suffered from a terrible infliction called cavernous hemangioma) and other inmates argued this as a violation of their Eighth Amendment. However, during this time two judgments:  Baze v. Rees and Glossip v. Gross, were decided. Both the judgments upheld and affirmed that lethal injection by drugs was constitutional and did not violate the Eighth Amendment and a challenge to capital punishment puts the onus on inmates to show that there exists an alternative that is “feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.


The fundamental issues that were raised by the parties themselves before the court were:

  1. Should the court, in evaluating an as-applied challenge to a state’s method of executing an inmate with a rare and severe medical condition, assume that medical personnel are competent to manage his condition and the procedure will go as intended;
  2. To decide, on comparing the evidence as to the risk posed by both the state’s method of execution and the alternative given by the inmate, what are the significant differences in the risk posed to the inmate;
  3. Whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition; and
  4. Whether petitioner Bucklew met his burden under Glossip v. Gross to prove-what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution.


The American Civil Liberties Union (ACLU) which had represented Mr. Bucklew, had argued about their client’s rare condition – cavernous hemangioma, would cause excruciating pain if executed by the lethal injection and that would violate the Inter-American Convention on Human Rights’ prohibition on cruel and inhuman punishment and torture. They elaborated on how the lethal injection would cause the blood to fill his tumors and due to a rupture, he may suffocate in his own blood for up to 4 minutes.  They claimed that such intense and prolonged suffering cannot be meted out by The State of Missouri as it would be in contravention to global standards of decency, reflected in international and national law the world over.

By a 5-4 decision, the court affirmed the ruling of the United States Court of Appeals for the 8th Circuit and endorsed its precedential decisions given in Baze vs Rees and Glossip vs Gross (which governed all the Eight Amendment challenges) stating that Bucklew had failed to establish: 

1) A feasible and readily available method that would significantly reduce a substantial risk of severe pain

2) That the state refused to adopt the method without a legitimate penological reason


1. J. Gorsuch delivered the opinion of the court joined by C.J. Roberts, Alito, Thomas and Kavanaugh. Gorsuch categorically reasons that though the Eighth Amendment “forbids ‘cruel and unusual’ methods of capital punishment”, it “does not guarantee a prisoner a painless death” When an inmate claims that “State’s chosen method cruelly super-adds pain to the death sentence”, then he must be willing to show a “feasible and readily implemented alternative” and the fact that the presented alternative (in this case, nitrogen hypoxia) will significantly reduce the pain.

2. J. Thomas unequivocally supports the legal injection method with the support of some studies, citing them to be more humane than rest of the method and draws a comparison of the 18th century methods of punishing people to the modern method to finally conclude that State, on the contrary, doesn’t “attempt to devise such diabolical punishments”.

3. J. Kavanaugh concurring simply propounds his disbelief at the fact that if an inmate has found that the State chose the method of execution to be discomforting and brutal for him, then he can’t find any other alternative to that which may be feasibly and readily implemented by the State. He agrees with J. Gorsuch that the alternative as provided by Bucklew isn’t satisfying, well-researched or guarantees a painless death to the petitioner as it leaves a lot of ambiguity about the procedure of execution.


1. Justice Breyer wrote the dissent, and he was joined by the liberal judges-Ginsburg, Sotomayor and Kagan. He identifies the issues as – a) Whether the petitioner has established genuine concerns regarding his excessive suffering from lethal injection; b) Whether the petitioner must compulsorily identify an alternative to the present method of execution; c) How to minimize delays in executing offenders who have been condemned to death. He opined that in accordance with precedents, it was sufficiently shown (with evidence and testimony of the witness) by Bucklew that the state’s execution method would cause him excessive suffering and along with cases and study cited, he adduced that unlike the majority, he felt that the nitrogen hypoxia wouldn’t cause extreme suffering nor would it be a complicated procedure. He felt that asking an inmate with limited resources to research upon the alternative means was an “insurmountable hurdle” and justified the time taken to reward justice and disagrees with the majority stand that just because the death penalty is constitutional doesn’t mean that the method to carry it out is so.

2. Justice Sonia Sotomayor wrote a separate opinion, asserting that “There are higher values than ensuring that executions run on time.” She doesn’t agree with the dismissive nature of the majority opinion stating that each request to consider capital punishment must be given a “careful hearing on its own merits.” She agreed that court may deny relief when the claims are mere “speculative or “dilatory” but when there is human life at stake, courts have a “duty to search for constitutional error” so as not to stain the Constitution due to a miscalculated, hurried execution.


On introspection, this judgment passed by 5-4 majority seems erroneous mainly for the absurd demands necessitated by the petitioner who is an inmate. J. Gorsuch is known for his apparent compassion for human life and dignity, someone who practices double standards by endorsing kindness and respect for human life in theory but has been found vehemently opposed to it in practicality. The author of The Future of Assisted Suicide and Euthanasia who had in his book, propounded whole-heartedly that an inmate cannot be euthanized if it causes extreme pain and without proper physician and contrary to that opinion, he has upheld the death sentence of Mr. Bucklew. One of the major flaws that can be pointed is the irrational demand made of the inmate to elaborate on the nitty-gritty of the alternative offered – nitrogen hypoxia, but it is an impossible burden for a prisoner to investigate on such complex matter when under 24/7 vigilance and little or no resources. The judgment fails to recognize the fact it has been put as an “as-applied challenge” and not a “facial challenge” and should be seen in the context of the present case and focus only on the unique nature of Mr. Bucklew’s unique health condition that has led to this case. Another point that needs a mention is how nonchalantly the Conservative majority dismiss the case on the grounds of stalling justice but they seemed to be unaware of the rare nature of the case which allows delay and seemed to opine that speed of the trial is more important than the outcome of it. The majority conveniently evaded the judgment of Trop v. Dulles which held that the ban on “cruel and unusual punishments” is not limited to the ideas prevalent in the 18th century (when crimes were sometimes punished by hanging, whipping, branding, etc.) – instead, it “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” In this case, too, considering the health condition of the petitioner, the Supreme Court should have evolved to assess the constitutionality of the State’s method of execution. 

However, it seems the dissenting judges only sympathize with the petitioner and have made an effort to understand the underlying problem unlike the mentality of the concurring judges who seem more interested to dismiss this case as quickly as possible than serve justice. The dissenting group can discern the predicament of the inmate if he is to do comprehensive research on the alternative to the current method of execution and rightly so. The petitioner had provided the state with an alternative and the court should take up a little responsibility to find out about the feasibility of it. As J Sotomayor cautiously puts, “There are higher values than ensuring that executions run on time” and that is exactly what the majority should have considered and not pass a judgment based on assumptions.