Justices halt Missouri execution after Alito intervenes; case is sent back to lower courts

The Supreme Court halted on Wednesday night the execution of a Missouri death-row inmate who said he is afflicted with a rare condition that means lethal injection would be likely to cause him an unconstitutional degree of pain and suffering.

In an unsigned opinion with no reported dissents, the justices sent the case back to lower courts for further consideration and left open whether there was a need for an evidentiary hearing. The three-sentence order gave no reason.

The action puts on hold what would have been the first execution since a botched lethal injection in Oklahoma last month raised new questions about the procedure.

Justice Samuel A. Alito Jr. late Tuesday night had temporarily stopped the execution of 46-year-old Russell Bucklew just before it was set to proceed. Missouri’s 24-hour warrant authorizing the execution was scheduled to expire at 12:01 a.m. Thursday.

Bucklew was sentenced to death nearly two decades ago for shooting and killing a man in 1996 before going on to abduct, beat and rape an ex-girlfriend.

The planned execution received unusual scrutiny because of what happened in Oklahoma. The lethal injection of murderer Clayton Lockett was called off after a vein collapsed and he writhed and grimaced in pain. He died from a heart attack shortly thereafter.

Bucklew’s attorneys said he suffers from untreatable vascular tumors — “cavernous hemangioma” — that fill his head, neck and throat. It creates a “substantial likelihood” that the injection of lethal drugs will cause hemorrhaging and suffocation and that Bucklew could choke on his own blood.

That would violate the constitutional protection against cruel and unusual punishment, the lawyers said.

“Lethal injection, as recent executions have demonstrated, is not a one-size-fits-all procedure,” Bucklew’s petition states. “What may be deemed constitutional for one prisoner may be gravely risky and in fact torturous for another.”

When the Supreme Court in 2008 upheld the constitutionality of lethal injection, Chief Justice John G. Roberts Jr. wrote in a controlling opinion that a defendant challenging a method of execution must show “a substantial risk of serious harm” or an “objectively intolerable risk of harm.”

Some courts have also interpreted the court’s ruling as requiring the inmate to show another method that would not carry such a risk.

Bucklew’s attorneys said he had proved the risk, and on Tuesday a panel of the U.S. Court of Appeals for the 8th Circuit agreed. It granted a 60-day stay after finding that undisputed medical evidence made it clear that Bucklew would probably 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, Alito — the justice designated to hear emergency pleadings from the 8th Circuit — 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 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.”

Bucklew attorney Cheryl Pilate said she was “extremely pleased and relieved” by the court’s action.

“What this means is that the appeals court will hear Mr. Bucklew’s claims under the Eighth Amendment that he faced a great likelihood of a prolonged and tortuous execution because of the unique and severe medical condition that causes vascular tumors to grow in his head and throat,” she said in a statement.

Bucklew has said that the botched lethal injection 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 going to get all screwed up here? Are they going to screw it up?”

If Bucklew’s execution is halted, it would 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 could review what happened and its protocols. The Oklahoma attorney general has agreed to delay that 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. Denno, a Fordham University professor and a death-penalty expert, said it seems the botched execution 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 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 to force the state to reveal where it is obtaining the drugs for lethal injections.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
Mark Berman is a reporter on the National staff. He runs Post Nation, a destination for breaking news and developing stories from around the country.
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