An inmate sentenced to death who seeks to raise an “as-applied” challenge to his method of execution must show that the State’s chosen method adds pain, and that there is a readily-implementable alternative method that would significantly reduce a substantial risk of severe pain, the U.S. Supreme Court held April 1 in Bucklew v. Precythe.


Russell Bucklew was sentenced to death in Missouri in 1996.  He then pursued a decade of unsuccessful appeals and postconviction review.


Next, he brought or joined several different suits to challenge Missouri’s lethal injection method of execution.


Twelve days before his scheduled execution in 2014, he brought the instant case as an “as-applied” Eighth Amendment challenge to the method of execution as applied to him.


Rather than claim that Missouri’s method of execution would cause excruciating pain for all prisoners – as previous lawsuits alleged – he claimed the method would cause severe pain only to him, because he had a vascular disease.


Bucklew initially argued that an “as applied” challenge should not require him to identify an alternative method that would not cause him severe pain.  But, after being pressed by the district court to identify one, he named “lethal gas” by nitrogen as an alternative.


The district court and Eighth Circuit Court of Appeals denied relief on grounds that Bucklew had produced no evidence that his proposed alternative would significantly reduce his risk of pain.


The Supreme Court granted cert to clarify the legal standards governing an “as applied” challenge.




The Court, in a 5-4 opinion, held than an inmate raising an “as applied” challenge must identify a readily-implementable alternative, so that a court may compare the alternative to the existing method of execution to decide if the existing method “superadds” pain well beyond what’s needed for execution.


The Eighth Amendment “does not guarantee a prisoner a painless death,” the Court said.  The history of the amendment shows that it was intended only to prevent the cruel “superaddition” of “terror, pain, or disgrace” to executions, the Court said.


The Court has never held that any State’s execution method is cruel, because States have historically sought to make executions less cruel, not add extra amounts of pain or terror, the Court said.


Nevertheless, “accepting the possibility that a State might try to carry out an execution in an impermissibly cruel and unusual manner,” the question is:  compared to what?


“The Eighth Amendment does not come into play unless the risk of pain associated with the State’s method is substantial when compared to a known and available alternative,” the Court said.


To prevail on an “as applied” challenge, an inmate must show both that the chosen method of execution “cruelly superadds pain,” and that there is “a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain … that the State has refused to adopt without a legitimate penological reason,” the Court ruled.


Turning to whether Bucklew had identified a readily implemented alternative, the Court ruled he had not.


Bucklew proposed a new method of execution using nitrogen gas.  But Bucklew failed to show this was feasible or readily implemented, the Court said.


“He has presented no evidence on essential questions like how nitrogen gas should be administered,” the Court said.  And Missouri had a valid reason for not switching to nitrogen gas since it was “an entirely new method – one that had never been used to carry out an execution and had no track record of successful use.”


“Choosing not to be the first to experiment with a new method of execution is a legitimate reason to reject it,” the Court said.


Finally, the Court warned lower courts not to allow “as applied” challenges to be used as a delay tactic.  “Last-minute stays should be the extreme exception, not the norm, and the last-minute nature of an application that could have been brought earlier, or an applicat’s attempt at manipulation, may be grounds for denial of a stay,” the Court said.


Justices Breyer, Ginsburg, Sotomayor and Kagan dissented.