The Supreme Court next term will consider a Missouri inmate’s contention that the state’s preferred method of executing him could cause him to choke on his own blood and will review a kind of class-action settlement in which no payments go to the members of the lawsuit.
The court announced Monday it is taking the cases, and will hear them in the term that begins in October.
The court, on a 5-to-4 vote in March, issued a last-minute stay to the planned execution of 49-year-old Russell Bucklew, who suffers from a rare disease called cavernous hemangioma. It causes blood-filled tumors to grow in his head, neck and throat, which his lawyers say could rupture during the state’s lethal injection process.
Bucklew’s attorneys have said Missouri should execute him using nitrogen gas rather than lethal injection, a method that has been floated elsewhere but never used by a state seeking to execute someone.
Earlier this year, Oklahoma said it would become the first state to use nitrogen gas for all executions going forward, a dramatic response to the inability of states nationwide to obtain the drugs used for lethal injections. Mississippi last year adopted nitrogen gas as a potential method of execution there.
Bucklew is not contesting his conviction for a particularly gruesome crime.
In 1996, Bucklew stalked his former girlfriend to another man’s trailer. He shot the man, tried to shoot the woman’s fleeing child and then captured the woman. He handcuffed and raped her, then wounded a police officer in a subsequent gunfight.
Bucklew later escaped from jail and attacked the rape victim’s mother with a hammer before he was recaptured.
In a brief to the court, Missouri Attorney General Joshua D. Hawley said Bucklew is simply trying to prolong his execution, and has not presented verifiable evidence that another manner of death would prevent suffering.
While Missouri’s law authorizes the use of lethal gas, “the state has no protocol in place . . . because that method has not been used since 1965,” Hawley wrote. “The state’s only gas chamber not only is inoperable; it sits in a museum.”
Bucklew’s lawyer, Robert N. Hochman, says Bucklew’s actions should not justify an indifference from society that he might suffer during execution.
“We refuse to punish with cruelty to protect ourselves against being party to cruelty,” they write. “We do so even when the temptation is powerful because the crime we are punishing was itself barbaric and cruel.”
In accepting the case, the justices told the state and Bucklew’s lawyers that they should address whether Bucklew has met the burden, announced in a previous death penalty case, “to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution.”
Bucklew’s lawyers said the court should clarify that inmates “need not custom-design their own method of execution in light of the idiosyncratic reasons the state’s generally lawful method of execution will prove cruel as applied to them.”
The case is Bucklew v. Precythe.
The court also said it will review an $8.5 million class-action settlement involving Google in which the money went to lawyers and a group of organizations instead of the class members who brought the complaint.
The lawsuit involved complaints that Google improperly disclosed users’ Internet search terms to others.
About $2 million of the settlement went to lawyers, and the rest went to organizations and university centers that said they would use the money to promote privacy protection.
But Theodore Frank and Melissa Ann Holyoak objected to what is called a “cy pres” agreement and said Monday they were gratified the court had taken the case.
“We are hopeful that the Supreme Court’s review will result in a standard forbidding attorneys from misusing class-action settlements to selfishly put themselves and third parties ahead of their clients,” said Frank, director of litigation at the Competitive Enterprise Institute.
Google said it would have been “infeasible to distribute $5.3 million in settlement funds to 129 million class members who had been unable to plead any concrete injury resulting from the challenged feature of Internet searches.”
The Supreme Court has seemingly been looking for a case that would allow it to review cy pres (pronounced “see pray”) settlements. In declining to accept such a challenge in 2013, Chief Justice John G. Roberts Jr. nevertheless said the agreements raised “fundamental concerns,” including “when, if ever, such relief should be considered” and “how to assess its fairness as a general matter.”
The case is Frank V. Gaos.
Mark Berman contributed to this report.