The Supreme Court granted the stay of execution on Wednesday night, halting the execution with a three-sentence order that sent it back to lower courts. There was no explanation given, and the justices left it to the lower courts to determine if an evidentiary hearing will be needed.
Cheryl Pilate, an attorney for Bucklew, said in a statement that she is “extremely pleased and relieved” that the stay was granted.
“Today’s stay of execution will give the lower federal courts time to consider Mr. Bucklew’s claim that his execution would violate his rights under the Eighth Amendment to be free from cruel and unusual punishment,” Pilate said.
A day after a series of appeals, court rulings and judicial reversals halted an execution in Missouri, the condemned inmate’s fate remained in limbo as all eyes turned to the Supreme Court for a final decision.
Russell Bucklew, 46, was sentenced to death nearly two decades ago for shooting and killing a man in 1996 before going on to beat, rape and abduct an ex-girlfriend. Missouri was prepared to execute him at 12:01 a.m. Wednesday in what would have been the country’s first execution since a botched lethal injection in Oklahoma last month. That episode saw Clayton Lockett, a convicted killer, writhe and grimace on the gurney; his vein had collapsed, so the execution was called off, but he died from a heart attack shortly thereafter.
But following a seesawing series of court announcements during several hours Tuesday night, Bucklew’s execution was ultimately halted — for the time being.
His attorneys had asked the courts for a stay of execution owing to a medical condition of Bucklew’s that they said causes weak blood vessels to grow in his face and neck, causing growths that obstruct his airway. They had filed a request for a stay with a U.S. District Court for the Western District of Missouri, which denied the request Monday. They also filed appeals requesting a stay with the U.S. Court of Appeals and the U.S. Supreme Court on Tuesday.
On Tuesday, several hours before Bucklew was scheduled to die, a federal appeals court panel halted the execution. The panel from the U.S. Court of Appeals for the 8th Circuit in Kansas City granted the 60-day stay, writing that undisputed medical evidence submitted by his attorneys made it clear that Bucklew would likely endure “unnecessary pain and suffering beyond the constitutionally permissible amount inherent in all executions.”
However, a few hours later, the full appeals court ruled that the execution could still proceed. The court offered little explanation in writing that “the stay of execution granted by the panel is vacated.”
A short time after that, Justice Samuel A. Alito Jr. halted the execution again, this time writing in an order that the execution would be stayed “pending further order” from Alito or the full court.
Missouri Attorney General Chris Koster issued a statement late Tuesday night, saying that the full Supreme Court would consider the issue Wednesday. The execution warrant allowing the state to kill Bucklew remains valid until 12 a.m. Thursday, Koster said. As a result, the court’s action — or inaction, if the court doesn’t make a decision during that window — will determine whether the state carries out its fifth lethal injection of the year Wednesday.
Bucklew’s attorneys filed an application for a stay with the Supreme Court that cited the “untreatable nature” of Bucklew’s condition. “Lethal injection, as recent executions have demonstrated, is not a one-size-fits all procedure,” the application says. “What may be deemed constitutional for one prisoner may be gravely risky and in fact torturous for another.”
Missouri calls Bucklew’s objections “vague and general.”
“Bucklew has known about his medical condition for decades, and has known for six years that a motion to set his execution date had been sustained,” according to the state’s filing. “He cannot now ask for a stay because testing might generate some proposal for changes in the way he is to be executed.”
Cheryl Pilate, one of Bucklew’s attorneys, described the wait as “pretty nerve-wracking” in a telephone interview Wednesday.
“It’s agonizing, the uncertainty is agonizing,” Pilate said from her office in downtown Kansas City. “There’s no answer, really, I can give to my client if he wants to know what’s going to happen. I can merely try to be supportive during an agonizing and almost unimaginable situation.”
Pilate said she had spoken with Bucklew several times and added that his medical condition is aggravated by stress. When she spoke with him on Wednesday, she said his breathing and speaking sounded labored.
“They have upped his medications for pain and the anxiety associated with it,” she said. “It’s just a great deal of uncertainty. No one knows what is going to happen. We try to maintain a hopeful outlook.”
The situation is also stressful for his attorneys, who have operated “at hyperspeed” as they have turned around and file pleadings as fast as they can type them, she said.
“Everyone’s exhausted, because we’ve been working as close to around the clock as our bodies will allow,” Pilate said. “We tried to get a little bit of rest at least last night because we knew today might be a long day as well.”
Bucklew has said that the botch in Oklahoma has him worried about what could happen if his execution goes awry.
“I’m sick about it not working on me. I’m afraid that it’s going to turn me into a vegetable, that I’d be brain dead,” Bucklew told the Guardian this month. “You saw what happened down in Oklahoma. I’m the next guy up – am I gonna get all screwed up here? Are they gonna screw it up?”
If Bucklew’s execution is halted, it will be the third execution called off in less than a month. Charles Warner was set to be executed in Oklahoma immediately following the botched execution, but when that lethal injection went awry, his execution was postponed so the state can review what happened and its protocols; the Oklahoma attorney general has agreed to delay his execution until at least November. An execution in Texas, scheduled to take place last week, was halted at the last minute because the inmate was deemed to have an intellectual disability.
Deborah W. Deno, a Fordham University professor and a death penalty expert, said it seemed like the botch in Oklahoma has made courts more tentative when it comes to approving executions.
“It seems like Oklahoma has legally thrown everyone through a loop,” she said. “It seems to have an effect. It seems to make courts take everything with a greater caution.”
Missouri Gov. Jay Nixon (D) denied Bucklew’s clemency request Tuesday, saying in a statement that Bucklew’s “heinous crimes warranted the death penalty.”
The state, which switched to carrying out executions using an injection of the drug pentobarbital, has executed four people so far this year. That is as many executions as it carried out between 2006 and 2013.
Attorneys for Bucklew have also criticized the secrecy surrounding the state’s lethal injection procedures. Missouri’s refusal to reveal where it obtains the drugs is the subject of a lawsuit filed last week by several news organizations. The Associated Press, the Guardian and three other media organizations sued the Missouri Department of Corrections to try and force the state to reveal where it is obtaining the drugs for lethal injections.