supreme court

Neil Gorsuch: Eighth Amendment ‘Does Not Guarantee a Prisoner a Painless Death’

Neil M. Gorsuch at the U.S. Capitol Rotunda on December 03, 2018, in Washington, D.C. Photo: Pool/Getty Images

On Monday, the conservative judges of the Supreme Court ruled in a 5-4 decision that the state of Missouri may execute a death-row inmate whose rare medical condition would cause “excruciating pain” during lethal injection.

Russell Bucklew — convicted for kidnapping and raping his former girlfriend in 1996, and for killing the man who was seeing her — has a condition called cavernous hemangioma, in which tumors grow on his head, neck, and throat. In his request to seek an alternative method to lethal injection by pentobarbital, Bucklew provided medical evidence that the tumors in his throat would rupture during the execution, and cause him to choke on his own blood for minutes before his death. Bucklew argued that his execution would violate the Eighth Amendment, which bars “cruel and unusual punishments,” citing two Supreme Court precedents involving inmates allowed to provide an “available alternative” that would cause less pain. Bucklew proposed nitrogen gas, a form of execution authorized for use in three states, arguing that his death from hypoxia, a lack of oxygen, would be faster and less painful for him than death by lethal injection.

However, the Supreme Court’s conservative majority disagreed with Bucklew, as well as the decision by the Eighth Circuit Court to allow him to present an “available alternative” method of execution. Justice Neil Gorsuch, writing for the majority, determined 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.” Justice Gorsuch justified the position by arguing that Bucklew did not submit his request to avoid “needless suffering” in a timely manner. In a concurring opinion, Justice Clarence Thomas wrote that the Eighth Amendment bars the deliberate infliction of pain; because there was no evidence that the state of Missouri intended to cause Bucklew to choke on his own blood during his execution, the amendment does not apply.

Justice Stephen Breyer wrote the dissent, determining that Missouri’s execution of Bucklew could constitute “excruciating and grotesque” punishment. In a separate dissent, Justice Sonia Sotomayor condemned Gorsuch’s explanation for the majority decision, writing that “there are higher values than ensuring that executions run on time …  Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.”

Monday’s decision comes almost two months after the Supreme Court determined that a Muslim man, Domineque Ray, would not be able to have an imam in the room during his execution, a ruling that the liberal justices considered a violation of the establishment clause of the First Amendment. In Ray’s execution, the Court’s conservative judges also determined that he had waited too long to submit his request. According to Gorsuch, the Court’s liberal judges were “seeking to relitigate” the February case in the Bucklew ruling. In his dissent, Breyer wrote otherwise: “ It might be possible to end delays by limiting constitutional protections for prisoners on death row. But to do so would require us to pay too high a constitutional price.”

Supreme Court Rules to Allow Execution Causing ‘Severe Pain’