Bucklew v. Precythe

OBJECTIVE RISKS OF THE INMATE’S MEDICAL CONDITION

Russell Bucklew contends that when an inmate who suffers from a medical condition challenges the constitutionality of an execution method as it is applied to him, the court must consider the objectively known risks that arise because of the medical condition. He argues that when the Court fails to consider these risks, it converts the as-applied challenge into an attack on the execution protocol itself. According to Bucklew, when these risks are not taken into account, the court assumes that the execution will go “as intended.” But this assumption, Bucklew maintains, ignores the core of the inmate’s challenge—that his particular medical condition creates unique circumstances guaranteeing that his execution will not go as planned.

Bucklew further argues that the Court’s failure to consider the objectively known risks violates the Eighth Amendment. He maintains that when state officials know an inmate suffers from a serious medical condition that makes him “uniquely likely to suffer gratuitous suffering” under the standard execution protocol, deciding to proceed with that protocol constitutes cruel and unusual punishment. Bucklew contends that although unforeseeable accidents that arise in the course of an execution do not pose a constitutional problem, the same is not true for predictable failures. According to Bucklew, state officials can objectively evaluate, in advance, the risks raised by the interaction between the execution protocol and the unique circumstances of the inmate’s medical condition.

In light of this, Bucklew argues that an inmate who knows that he suffers from a complicating medical condition is entitled to discovery to “test the experience, knowledge, and training” of the execution team’s medical members. Such discovery, Bucklew contends, would reveal how predictable a “botched” execution attempt would be. Bucklew maintains that allowing discovery on this issue is consistent with Federal Rule of Civil Procedure 26(b)(1).

The Department of Corrections, on the other hand, argues that the Eighth Circuit properly assumed that Bucklew’s execution would go as intended. The DOC asserts that absent evidence to the contrary, a court must assume that the DOC will carry out an execution in a constitutional manner. The DOC contends that any botched execution attempts are nothing more than “isolated mishaps.” Such mishaps, the DOC claims, do not violate the Eighth Amendment because they do not suggest cruelty. The DOC maintains that the challenged execution method includes sufficient safeguards to protect against an unconstitutional risk of harm.

Next, the DOC argues that discovery into the medical team’s training is relevant only to show that mishaps might occur during the execution. But mere mishaps, the DOC contends, do not violate the Eighth Amendment. Further, the DOC asserts that Bucklew’s discovery request is irrelevant because he did not argue that different medical training would diminish his risk of pain and suffering. Moreover, the DOC maintains that Bucklew’s assertion that additional discovery would demonstrate that he will suffer from botched execution attempts is speculative and contrary to the record. As such, the DOC argues that additional discovery would be disproportionate to the needs of the case.

KNOWN-AND-AVAILABLE-ALTERNATIVES REQUIREMENT

Bucklew argues that the known-and-available-alternatives requirement that is applicable in facial challenges to execution methods is not relevant in the context of as-applied challenges. The requirement, he contends, serves two primary concerns. First, Bucklew asserts, in the absence of an alternative method, a facial challenge could deprive the government of the only available means of carrying out capital punishment. Second, Bucklew notes, because there is a risk of pain in any execution, a comparative method is necessary to determine if the execution technique at issue is indeed “cruel and unusual.”

Bucklew avers, however, that neither of the two concerns is present in the context of as-applied challenges. First, despite the outcome of an inmate’s as-applied challenge, Bucklew points out that the state remains able to use the challenged execution protocol with other inmates. Additionally, in other contexts, Bucklew notes the Court has analogously recognized that the Eighth Amendment may prohibit executing particular individuals—such as the mentally disabled—altogether, without threatening capital punishment itself. Second, Bucklew maintains that the constitutional challenge in as-applied cases is not that the execution method itself is cruel and unusual, but rather that it is cruel and unusual to use the method on a particular inmate, with a known vulnerability to gratuitous suffering. Bucklew asserts that indifference to an inmate’s vulnerability is unconstitutionally cruel regardless of whether he has identified an alternative execution method.

In response, the DOC argues that inmates who raise as-applied challenges to execution methods must plead and prove an alternative, feasible method. The DOC notes that the alternative-method requirement is a substantive element in all Eighth Amendment method-of-execution claims and that the Court has not previously distinguished between facial and as-applied claims.

The DOC next contends that the principle that there must be an available means to carry out capital punishment is a relevant concern in as-applied challenges—the state must have a way to execute every individual inmate who has been sentenced to death, even if he has a serious medical condition. Further, the DOC claims that the alternative-method requirement is more than a comparator for evaluating whether a particular execution method is cruel and unusual because it also guides the determination of whether state officials were subjectively culpable in adopting their chosen method. This determination is critical, the DOC maintains, because the Eighth Amendment forbids “the deliberate infliction of pain for the sake of pain.” ). Thus, the DOC argues that if there is no alternative execution method available to state officials, then they lack a subjectively culpable state of mind in selecting the challenged method. The DOC further asserts that excluding the alternative-method requirement from as-applied challenges would make such challenges easier to plead and prove, and consequently would encourage inmates to raise meritless claims.

LETHAL GAS AS AN ALTERNATIVE TO LETHAL INJECTION

Bucklew argues that even if the Court imposes the known-and-available alternative requirement in as-applied cases, he has pled and proven the existence of a feasible and available alternative that substantially reduces the risk of suffering he will face. He further contends that in determining whether he met this requirement, it is proper for the Court to consider the record holistically.

Bucklew asserts that he met the evidentiary burden to defeat the DOC’s motion for summary judgment because the DOC did not deny that lethal gas was a readily available and feasible alternative method. Beyond identifying this alternative method, Bucklew claims, there is no legal obligation for him to detail the specific procedures that would be used in the implementation of the alternative method. Further, Bucklew argues that he demonstrated that the alternative method would significantly reduce his risk of pain because he presented evidence that lethal gas would not induce prolonged suffocation.

In opposition, the DOC argues that Bucklew failed to identify a known, available, readily feasible method of execution with sufficient specificity. As an initial matter, the DOC asserts that it did not concede that lethal gas is a readily available and feasible method, but rather that it repeatedly disputed this issue in the proceedings below. Further, the DOC contends that merely stating that lethal gas is an alternative, without more, is not enough—although gas is a tool that can be used to carry out an execution, the gas itself is not a “method” of execution. Without additional details about the procedure and its administration, the DOC maintains, it cannot assess the risk of pain associated with a lethal gas execution.

In addition, the DOC argues that Bucklew failed to prove that the lethal gas method would significantly reduce his risk of pain. The DOC claims that even if breathing lethal gas does not create a sense of suffocation, that fact is irrelevant because neither does lethal injection. As such, the DOC contends that the only relevant question is whether and how quickly each method would make Bucklew unconscious. The DOC additionally asserts that to prove that its execution method violates the Eighth Amendment, Bucklew must demonstrate that the DOC has no legitimate penological justification for adhering to its method. The DOC maintains that it adheres to its method because it is considered humane and effective, while other states have yet to thoroughly test or practice Bucklew’s alternative.

PROCEDURAL BARS ON BUCKLEW’S CLAIMS

Bucklew asserts that the limitations period did not begin to run at the time the DOC alleges because his request for funding was denied. He argues that he did not obtain the factual basis for his claim until April 2014, when he had an expert examine his medical records. Further, Bucklew contends that the deadline to amend the pleadings in the Zink case preceded the date on which his medical condition was professionally examined. He also maintains that an as-applied challenge differs from a facial challenge both legally and factually, and thus he properly raised it in a separate action.

The DOC argues that Bucklew’s complaint is barred by the statute of limitations and res judicata. The DOC claims that the claim is barred because Bucklew did not raise it until six years after filing an application for funds, thereby exceeding the applicable five-year limitation period. The DOC maintains that Bucklew possessed the evidence necessary to raise his claim within the five-year period. The DOC next asserts that Bucklew’s claim is barred because he challenged the facial validity of Missouri’s lethal injection protocol in Zink v. Lombardi, but failed to plead his as-applied claim at that time. It argues that Bucklew knew of the factual basis for his claim from the beginning of the Zink litigation, yet never sought to add the claim to that suit.