John Simon, Associate Member, University of Cincinnati Law Review
Next month, the Supreme Court will hear oral arguments in the case of Bucklew v. Precythe involving an Eighth Amendment challenge to the use of lethal injection as the mode of execution. Russell Bucklew argues that his serious medical conditions, including compromised veins and blood-filled tumors in his airways, would cause needless suffering. Thus, Bucklew requested that he be permitted to be executed by lethal gas as an alternative method of execution, a method which he claims would be less cruel.
Between 1890 and 2010, an estimated 276 executions were botched; this number represents approximately three percent of all executions during that time period. More recently, botched executions have made headlines, begging the question of whether mistakes are becoming a more common occurrence. Botched executions raise a number of issues that need to be addressed regarding capital punishment. As the Supreme Court noted in 1958, application of “the [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Does recent history, and Bucklew’s peculiar case, present the Supreme Court with sufficient justification to revisit death penalty concerns?
Current Capital Punishment Standard
In 1972, the Supreme Court effectively voided death penalty statutes in forty states by finding that the specific death penalty statutes at issue were unconstitutionally arbitrary and, thus, violated the Eighth and Fourteenth Amendments. Four years later, the Supreme Court reversed course finding that the rewritten death penalty statutes at issue provided sufficient guidance for jurors deciding a convicted defendant’s fate; the Court determined that the death penalty did not per se violate the Constitution. Following that case, the Court has narrowed the scope of death penalty application: the death penalty cannot be applied against juvenile offenders; the death penalty cannot be applied against those with intellectual handicaps; and, the death penalty cannot be applied when the victim did not die. Moreover, the Court has held that the “unnecessary and wanton infliction of pain” constitutes cruel and unusual punishment.
States have broad discretion to determine the mode of execution. The Supreme Court noted: “Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment…and our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment.” Since the reinstatement of the death penalty in 1976, states have carried out approximately 1,483 executions, and the primary method of execution has shifted to lethal injection.
Lethal injection, since the 1970s, has taken the form of a three-drug protocol whereby states would inject the subject with a combination of three drugs leading to the subject’s death. The first drug, a barbiturate, serves as an anesthesia to force the subject into a state of deep unconsciousness. The two drugs that follow serve to stop respiration and the heart. Recently, the protocol used has sparked controversy because of pharmaceutical manufacturers refusing to sell their drugs for use in capital punishment. Thus, states have been forced to test other drug combinations to carry out executions. The Supreme Court, addressing a challenge to Oklahoma’s updated “lethal cocktail” maintained that “while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.” Further, the Court maintained that a challenge to a state’s lethal injection protocol requires: “‘A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. [And] [h]e must show that the risk is substantial when compared to the known and available alternatives.’” States are provided considerable deference to determine the process by which an inmate is executed.
Over half of the thirty-one states maintaining active death penalty statutes provide lethal injection as the sole method of execution. A small proportion of the thirty-one states permit the inmate to select an alternative method. Missouri provides lethal gas as an alternate method of execution, but the law is unclear as to whether the inmate may request the method of execution.
Bucklew’s brief provides a detailed account of his medical conditions. He suffers from compromised veins, as well as cavernous hemangioma which causes inoperable, blood-filled tumors to grow in his throat and around his face. The condition has progressed to the extent that Bucklew’s uvula has become enlarged restricting his ability to breathe. Bucklew experiences suffocation, especially when laying supine.
According to Bucklew’s brief, the lethal injection process likely will cause needless harm. Inserting a catheter without issue may be impossible due to his compromised veins. Even if a catheter is successfully inserted, the process of laying supine while the drugs are injected would cause Bucklew to struggle for air. His distressed state and the convulsions associated with suffocation would cause the blood-filled tumors to burst. Bucklew would likely suffocate or choke to death on his own blood before the drugs could stop his heart.
While lethal gas would also cause Bucklew to suffocate, the suffocation would last for approximately thirty seconds which is considerably less than the time Bucklew would suffocate if subjected to lethal injection.
Bucklew’s case has also gathered unlikely support. A group of former prison officials, including wardens, commissioners, and executioners, have filed an amicus brief describing the impact of executions on those responsible for carrying out executions. The brief states: “The weight of the [execution] lands squarely on the execution teams’ shoulders. Even in the best of circumstances, it is difficult to bear.” For Bucklew’s case in particular, in which it is unlikely that a lethal injection execution would go as planned, the brief contends that “[w]hen, as here, an execution is unlikely to go smoothly, and is likely to result in unnecessary pain and suffering, the burden of participation becomes unbearable. Such executions do not serve the State’s interests in finality or justice. Instead, they make public servants parties to barbarism.” According to the former prison officials, the execution in this case “is not what the Founders envisioned when they adopted the Eighth Amendment.” Therefore, the Court should find lethal injection to be unconstitutional in this instance.
The Supreme Court will be tasked with determining whether Bucklew has met the “known and available alternatives” standard outlined in prior cases; however, other issues should be considered.
While case law maintains that the Eighth Amendment does not require a painless execution, the Amendment does not proscribe the “unnecessary and wanton infliction of pain.”37 To ensure that the state avoids causing the “unnecessary and wanton infliction of pain,” the concept of pain cannot be regarded as essentially a commodity. The current execution method inquiry seems to focus on pain as an expectation. While pain cannot be eliminated from executions, at least presently, the Court should refine its standard to require the state to opt for the method that will likely cause the least amount of pain under the given circumstances. Any additional pain caused without consideration of alternate methods should be considered an “unnecessary and wanton infliction of pain.”
Further, as the amicus brief notes, executions take a significant toll upon those who are tasked with their completion. These effects are more strongly felt when an execution is botched. Thus, in determining what method will cause the least amount of pain, given the circumstances, the Court should, perhaps, consider the impact of the execution not just on the inmate, but also on those charged with the responsibility of carrying out the execution.
As the Supreme Court noted, “the [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” With Russell Bucklew’s case pending before the Supreme Court, the Court will be presented with the opportunity to re-evaluate the current state of the death penalty
 Jordan Rubin, Executioners Lobby for Death Row Inmate at High Court, United States Law Week, Bloomberg Law, (Oct. 18, 2018) https://www.bloomberglaw.com/document/XETPIAFO000000?jcsearch=bna%2520000001667d1cd8efaf6ffd5dcbc00000#jcite
 Botched Executions, Death Penalty Information Center (2018), https://deathpenaltyinfo.org/some-examples-post-furman-botched-executions.
 See generally, Jeffrey Stern, The Cruel and Unusual Execution of Clayton Lockett, The Atlantic, (Jun. 2015) https://www.theatlantic.com/magazine/archive/2015/06/execution-clayton-lockett/392069/ (detailing Clayton Lockett’s execution, as well as the executions of others, in which each inmate appeared to be conscious and gasping for air while each drug was administered).
 Trop v. Dulles, 356 U.S. 86, 101 (1958).
 Part I: History of the Death Penalty, Death Penalty Information Center, (2018) https://deathpenaltyinfo.org/part-i-history-death-penalty.
 See generally, Gregg v. Georgia, 428 U.S. 153 (1976).
 Roper v. Simmons, 543 U.S. 551 (2005).
 Atkins v. Virginia, 536 U.S. 304 (2002).
 Kennedy v. Louisiana, 128 U.S. 2641 (2008).
 Gregg, 428 U.S. at 173.
 Baze v. Rees, 553 U.S. 35, 62 (2008).
 States and Capital Punishment, National Conference of State Legislatures (Jun. 6, 2018), http://www.ncsl.org/research/civil-and-criminal-justice/death-penalty.aspx.
 Denise Grady, Three-Drug Protocol Persists for Lethal Injections, Despite Ease of Using One, The New York Times (May 1, 2014), https://www.nytimes.com/2014/05/02/science/three-drug-protocol-persists-for-lethal-injections-despite-ease-of-using-one.html.
 Glossip v. Gross, 135 U.S. 2726, 2733 (2015).
 Id. at 2737 (citing Baze v. Rees, 553 U.S. 35, 62 (2008)).
 Niraj Chokshi, Map: How each state chooses to execute its death row inmates, The Washington Post (Apr. 30, 2014), https://www.washingtonpost.com/blogs/govbeat/wp/2014/04/30/map-how-each-state-chooses-to-execute-its-death-row-inmates/?noredirect=on&utm_term=.aba0849b7c7a.
 Brief of Petitioner at 5, Bucklew v. Precythe, No. 17-8151 (U.S. Jul. 16, 2018).
 Id. at 6.
 Id. at 8.
 Id. at 10-11.
 Id. at 12.
 Id. at 47.
 Rubin, supra note 1.
 Brief for Former Corrections Officials Supporting the Petitioner as Amicus Curiae, p. 4, Bucklew v. Precythe, No. 17-8151.
 Id. at 3.
 Id. at 10.
 Glossip, 135 U.S. at 2637.
37 Glossip at 2733; Gregg, 428 U.S. at 173
 Trop, 356 U.S. at 101.