The State of Missouri convicted Russell Bucklew of murder and sentenced him to death. Bucklew challenged the state’s standard lethal injection method because he claimed the procedure could cause him extreme pain. Bucklew suffers from a medical condition that could prevent the drugs from working as intended. As a result, he could suffocate and may suffer longer during the execution.

Although the death penalty is controversial, the Supreme Court has ruled it does not violate the U.S. Constitution as a “cruel and unusual” method of punishment. But the execution cannot be torturous or otherwise add unnecessary pain or disgrace.

Based on these Eighth Amendment protections, courts have seen a number of cases addressing whether states’ execution protocols are valid. The Supreme Court has clarified that the states don’t need to guarantee a painless execution, and the Court has outlined what a litigant must do to succeed in a challenge to a state execution method.

Baze and Glossip

States have made several changes to their execution protocols over time. In the early 20th century, for example, Missouri replaced hanging with the gas chamber, and then later in the 20th century, the state began using the lethal injection. The injection protocol (drugs and manner) have been a source of dispute as well, and the early 21st century brought a wave of related litigation.

In 2008, the Supreme Court ruled in Baze v. Rees, in which two death row inmates challenged Kentucky’s lethal injection protocol as unconstitutional because it creates an “unnecessary risk of pain” because of the chance that the procedure would be carried out incorrectly. The Supreme Court ruled against the inmates. In the opinion, the Court addressed what degree of risk would be unacceptable and what degree of pain. To challenge a state’s execution method as unconstitutional, the Court ruled, the inmate must offer an alternative method of execution which addresses a “substantial risk of serious harm.” Specifically,

The alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.

Several years later, the Court responded to another challenge of a state’s lethal injection method, this time about the particular drugs to be used. In Glossip v. Gross, Oklahoma planned to use the first drug in the injection as the same drug that was involved in a botched execution years before. The death row inmates lost the challenge. The Court ruled the inmates had not presented a “reasonable alternative that presents a significantly lower risk of pain” than the planned method. The ruling suggested that challenging a state’s execution method would always be a comparison of the current method with another option that the inmate suggested.

Bucklew’s as-applied challenge

Prior to this case, Bucklew was a member of two other unsuccessful litigations involving Missouri’s execution method. Those challenges took issue with the execution method generally, or as it would be applied in all cases. That’s called a facial challenge – the method “on its face” has problems.

In this case, however, Bucklew presents an “as-applied” challenge. Bucklew complains that regardless of how it will apply generally (to others), it’s a problem to apply it to him. Bucklew’s particular circumstances make the method unconstitutional.

Bucklew sought to get the Court to change the Baze-Glossip test because of this difference. If an inmate just wants to challenge the execution based on how it applies to himself, then the standard could be different. Perhaps not comparative at all; perhaps at least not require the inmate to present a “feasible and readily implemented” alternative.

Bucklew won over only the dissenting Justices. The majority of the Court applied the Baze-Glossip test. The Court explained why evaluating whether a punishment is “cruel and unusual” is necessarily a comparative exercise:

When it comes to determining whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment “superadds” pain well beyond what’s needed to effectuate a death sentence. And answering that question has always involved a comparison with available alternatives, not some abstract exercise in “categorical” classification. At common law, the ancient and barbaric methods of execution Mr. Bucklew cites were understood to be cruel precisely because—by comparison to other available methods—they went so far beyond what was needed to carry out a death sentence that they could only be explained as reflecting the infliction of pain for pain’s sake. Meanwhile, hanging carried with it an acknowledged and substantial risk of pain but was not considered cruel because that risk was thought—by comparison to other known methods—to involve no more pain than was reasonably necessary to impose a lawful death sentence.

Next, the Court ruled Bucklew’s proposed alternative was lacking. As the alternative, Bucklew had offered a method of suffocation with nitrogen gas that neither Missouri nor any other state has used before. The Court ruled the method was not “feasible and readily implemented.” Furthermore, Bucklew had not presented enough evidence that his alternative would “significantly reduce a substantial risk of severe pain.” The Court ruled Bucklew’s contentions that the alternative did satisfy the standard were merely speculation and unsupported by evidence.

The dissent

Justice Breyer wrote the dissent, and he was joined by Ginsburg, Sotomayor and Kagan. The dissent would not have applied the Glossip-Baze comparative test to an as-applied challenge. They also said Bucklew had indeed provided enough evidence that the state’s execution method would cause him excessive suffering. Breyer adds a section to the end of the dissent addressing the a concern apparent in the majority opinion: that we can’t reward attempts to delay administration of the death penalty (Breyer worded the concern more politically). Breyer argues that neglecting valid constitutional arguments at the price of speed does not serve justice; and that in fact the contrary — creating consistent rules that guarantee constitutional rights — could resolve cases more efficiently. He notes that the majority worked with a premise that is not necessarily true: that just because the death penalty is constitutional, there must be a constitutional means of carrying it out. That’s what justified the majority in its comparative standard, but Breyer says the Constitution implies no such thing.