Bucklew versus Precythe is a case involving the question of whether it was cruel and unusual
to execute an offender via lethal injection.
The two issues then are, number one, whether people who make an as-applied challenge have
to show some alternative method that's feasible and readily implemented and that significantly
reduces the chance of extreme suffering.
And, number two, if they do have to meet that burden, did Bucklew meet it by proposing nitrogen
hypoxia as a method of execution?
Bucklew says that the one-drug lethal injection protocol is cruel and unusual as to him because
his medical condition, the condition called cavernous hemangioma, creates risks of suffering
resulting from this protocol that don't exist with respect to most other prisoners.
Bucklew tried to raise two arguments in this case.
The first argument was that the requirement that the offender has to come up with a feasible,
readily implementable alternative method of execution should not apply to as-applied challenges.
Bucklew's second argument was that he had, in fact, identified a feasible, readily implementable
alternative method of punishment that would not create the same risk of suffering for
him that the lethal injection protocol would create.
Missouri argued that the requirement that offenders have to identify a feasible, readily
implementable alternative method of execution should be applied to all challenges, not just
facial challenges but also to as-applied challenges.
Missouri also argued that it should not have to implement the nitrogen hypoxia method of
execution as a result of Bucklew's challenge because it was not clear that it would significantly
reduce the risk of suffering in this particular case.
The ultimate ruling in this case was that the requirement that offenders have to identify
an alternative method of execution that's feasible, readily implementable, and significantly
reduces the risk of pain and suffering applies to all challenges to methods of execution,
whether those challenges are facial or as-applied.
The Court's second ruling was that Bucklew's proposal, nitrogen hypoxia, was not shown
to be feasible, readily implementable, nor that it would significantly reduce the risk
of pain and suffering in this case.
It's an originalist opinion in the sense that the Court explicitly appealed to the original
and historical understanding of the cruel and unusual punishments clause.
On the other hand, the constitutional doctrine that was most directly at issue in this case,
that is, the requirement that offenders have to identify a feasible, readily implementable
alternative method of punishment that will significantly reduce the risk of pain and
suffering, is very, very non-originalist.
Justice Breyer expressed his concern about the fact that offenders are waiting for almost
20 years now after they get sentenced to death before they are executed.
In particular, he disagrees with the Court's idea that the remedy for this should be finding
ways to create procedural obstacles to Eighth Amendment claims and thus shorten the time
between sentence and execution.
Instead, Justice Breyer believes that these procedural safeguards are necessary but because
he does not want to eliminate procedural safeguards for those sentenced to death, he thinks that
maybe the death penalty itself needs to be eliminated because there's no way to execute
people in a way that is just and fair and reliable and that's also sufficiently speedy
to meet the requirements of justice.
This decision will make it at least marginally easier for states to impose the death penalty
by making it more difficult for offenders to challenge methods of execution as cruel
and unusual.