Legal Docket: The meaning of cruel and unusual

NICK EICHER, HOST: It’s Monday morning, start of a new work week for The World and Everything in It. Today is the 19th of November, 2018. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. We continue our weekly coverage of oral arguments heard at the Supreme Court.

But today, we are going to talk about a case with alarming facts and disturbing legal questions.

If you have young ones around, you may want to hit pause and come back later.

This is a death-penalty case.

EICHER: Thirty states have capital punishment on the books. But more than half of them have not executed a killer in at least five years.

Last month, Washington state became the latest to rule that as it is applied, the death penalty violates the Constitution.

It was not a statement about the constitutionality of putting someone to death.

The judges decided the “arbitrary and racially biased manner” of imposing the punishment is what is unconstitutional.

REICHARD: The case we’re talking about today arises out of Missouri and race is not an issue in it.

The condemned man is Russell Bucklew.

He’s convicted of stalking, assaulting, and later murdering Michael Sanders.

Here’s what happened.

Sanders had moved in with Bucklew’s former girlfriend, a 21-year-old woman named Stephanie Pruitt Ray.

Bucklew confronted them at home, and shot Sanders in the chest.

EICHER: While Sanders lay dying, Bucklew shot at one of the children watching this violence unfold.

He missed, and then turned his rage on his ex-girlfriend.

Bucklew handcuffed her, and dragged her away to flee with him. He would rape and torture her along the way.

About 100 miles later, police would catch up to him, and capture him after a shootout.

REICHARD: Stephanie Ray and an officer were injured, but survived.

Bucklew went to jail. But he escaped and he made his way to the home of Ray’s mother. He hid in a pantry and waited to attack her with a hammer and a knife. She survived.

Police caught Bucklew a second time. Prosecutors tried him, a jury convicted him and ultimately condemned him to death.

EICHER: For more than 20 years, this man’s been on death row. He’s filed appeal after appeal. His victims and their families endure repeated anguish every time the courts delay his sentence.

And you may think of the evil he perpetrated and decide he does not deserve the state’s clemency. He is not at all a sympathetic character.

But the circumstances surrounding his death sentence do raise constitutional questions: specifically, the meaning of the eighth amendment which prohibits cruel and unusual punishment.

And it’s important to note, this case isn’t about whether he’ll be executed, but how.

REICHARD: Here are the facts salient to the case.

Bucklew was born with a condition that causes tumors filled with blood to form in his mouth and throat. Because of that, he wants his execution to be done with lethal gas, not lethal injection. You’ll hear his theory why in a moment.  

His lawyer, Robert Hochman, focused on the difference in how his client is treated while lying in his prison cell, versus while lying on the execution table.

HOCHMAN: Nobody doubts that when he’s in his cell and he’s got trouble breathing, they give him a biohazard bag. They give him gauze. They put him on a soft diet because eating hard food can cause his throat to bleed. Of course, they take into consideration his physical condition, his concerns. And if they didn’t, the Eighth Amendment would require them to do it in his cell. Their view of the alternative method requirement is, as soon as he walks into the execution chamber, the Eighth Amendment changes

REICHARD: That view had the sympathy of the most outspoken critic of capital punishment on the bench, Justice Sonia Sotomayor.  Listen as Missouri’s Solicitor General, John Sauer, explains the usefulness of lethal injection. That’s the procedure Bucklew doesn’t want.  

SAUER: Missouri’s single-drug protocol using pentobarbital is the most humane and effective method of execution that is currently known. Missouri has used it 20 times without any significant incident. Petitioner offers an extremely…

SOTOMAYOR: How many people have had the same condition as Mr. Bucklew?

SAUER: Zero, your honor.

SOTOMAYOR: All right. So let’s go to his unique circumstance.

REICHARD: And that’s the crux of this particular appeal.

Hochman argued for Bucklew that his unique circumstance ought to dictate another method of execution. There is a risk his client might gag on his own blood, essentially drown if the tumors in his throat burst during the injection procedure.

But Sauer for Missouri argued there is no evidence Bucklew really would suffer any less with the lethal gas method he says he wants. Sauer saw a different storyline going on here: manipulation and delay.

SAUER: If you really thought that he was going to suffer this excruciatingly, he has an option available. He can plead all kinds of alternative methods of execution that are not completely untested and completely unknown.  He can plead hanging. He can plead firing squad. He was aware he could plead firing squad, but he strategically decided not to do that. Of course, if he had plead -­pleaded firing squad, it’s possible that Missouri could have executed him by firing squad, but his litigation conduct indicates that that is not the goal here. The goal is to have challenge after challenge after challenge. This is his third method of execution challenge… And now, 14 days before his first scheduled execution, for the very first time, he comes forward with an as-applied challenge that is based on a medical condition that he has had since birth.

REICHARD: Justice Stephen Breyer suggested perhaps the better course is to just send the case back for a hearing to see if there really is a special problem to correct here.

Sauer for the state pushed back hard on that, arguing enough evidence is here already and more delay solves nothing. It perpetuates the harm for the families of the victims who have to relive their nightmare through repeated appeals.

Justice Samuel Alito homed in on the idea that pain is simply inescapable no matter the method of execution. Listen to this exchange with Buckley’s lawyer, Hochman.

ALITO: Any execution can cause pain. Certainly, it’s going to cause a lot of emotional pain. That’s probably going to exceed the physical pain.

HOCHMAN: Right. So you need something to compare it to. Was this too much? Well, compare it to -­ tell me what you want to compare it to. Here, we have a ready comparator. It’s a healthy inmate. It’s what the people of Missouri had in mind when they designed this protocol. Mr. Bucklew’s experience is going to be nothing at all like that, and miserably so.

Note the shades of legal argument here: Hochman isn’t saying capital punishment is always unconstitutional. He’s saying Missouri’s method of execution as applied to his client is unconstitutional.

Now you may wonder, why doesn’t Missouri just use lethal gas and get this over with? The state authorizes execution by lethal gas, but it hasn’t actually used it since the 1970s. There’s no protocol for it. And the anti-death-penalty industry has made an issue out of any single method, so it’s an invitation for more litigation by adding more methods of execution.

This case presents several legal questions. One dealt with whether the burden is on the inmate to come up with an alternative way to die.

It was in that context that Justice Brett Kavanaugh asked this pointed question to Sauer, for the state.

KAVANAUGH: Are you saying, even if the method creates gruesome and brutal pain, you can still do it because there’s no alternative?

SAUER: I believe that any petitioner who is claiming that it would create gruesome and brutal pain must, under Baze and Glossip, offer an alternative method that significantly reduces the pain.

KAVANAUGH: So you’re saying that even if the method imposes gruesome, brutal pain –you can still go forward?

SAUER: Well, I would say again that that petitioner has to if they want to -­

­KAVANAUGH: Is that a yes?

SAUER: Yes, it is, Your Honor.

REICHARD: Much discussion revolved around how much information about Bucklew’s condition the execution team would know. Would Bucklew’s head be elevated? Would he be laid flat? If he should gag before becoming unconscious, what measures would be taken?

Chief Justice John Roberts brought up how surgical patients aren’t at a zero brainwave reading on an EEG. Despite that, they don’t experience pain.  So why should we be worried about how long it would take for Bucklew to get to zero brain waves, as Hochman intimated?

ROBERTS: So why are we concerned about the time to get to zero?

HOCHMAN: Well bECAUSE there’s no way to measure exactly when, there’s no studies and there’s no way to measure exactly when you pass through the various stages of consciousness…

REICHARD: And it went like that for most of the argument.

That Bucklew might suffer, that he might have less chance of suffering before death overtakes him with lethal gas versus lethal injection.

Experts in the lower courts said conflicting things. Bucklew’s lawyer questioned whether the lethal injection team was competent enough to handle Buckley’s airway if it collapsed.

Now, I suspect you might be thinking: The state is trying to kill this man, so who cares if he dies of airway collapse?

We have to go back to the Constitution. We have an eighth amendment that prohibits “cruel and unusual” punishment. It’s not death the accused is protected from, but rather how the state brings it about. If it is cruel and unusual, the constitution does not allow it.

Sauer for the state seemed exasperated with how the argument was going.

Yes, there’s some pain involved with inserting an intravenous line to administer the drug. Yes, sometimes if a vein can’t be accessed, a minor surgery to expose the vein might be done. But experts testified below that those things were not out of the ordinary.

And Sauer reminded the justices again just how cunning it was for Bucklew to ask for precisely the kind of execution method the state isn’t set up to do.

Justice Kagan amplified that aspect.

KAGAN: So are you saying, Mr. Sauer, that we would be in a different situation in this case right now if the Petitioner had instead requested an electrocution or a firing squad?  

SAUER: It would certainly have been a stronger case.

REICHARD: Seventeen states filed briefs in support of Missouri, citing Supreme Court rulings that foreclose many of Bucklew’s claims. Another brief in support of Missouri came from the sister of the man Bucklew murdered. She raised her brother’s young sons, who were 4 and 6 at the time.

Now they’re grown up and the young men have Post Traumatic Stress related to their witnessing the murder of their father.

These briefs cite academic literature that confirm how victims experience the criminal-justice system: as a convoluted, never-ending continuation of the violence they endured the first time around.

As I researched what happened to Bucklew’s surviving victims, I came across another heartbreaking detail.

Remember Bucklew’s ex-girlfriend, Stephanie? She got married to a man named John Shuffit, then became estranged from him.

And 13 years after she survived Bucklew’s deadly rampage, Shuffit shot her dead in sight of two of her three children.

Her obituary said she was a Christian, an avid gardener, and devoted mother.

She was 34 years old.

And that’s this week’s Legal Docket.

(AP Photo/Pablo Martinez Monsivais) In this Oct. 9, 2018 photo, police office guards the main entrance to the Supreme Court in Washington. 

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