By David G. Savage
The Supreme Court ruled Monday that the Constitution does not guarantee a "painless death" for condemned murderers, deciding that a Missouri inmate may be executed by a lethal injection despite a rare condition that could cause him to suffocate.
By a 5-4 vote, the court rejected an appeal from Russell Bucklew, who maintained the state must seek out another method of execution, such as lethal gas, to carry out his execution.
The justices halted his execution last year, when Justice Anthony M. Kennedy cast a fifth vote with the four liberals. But after hearing the full appeal, the court rejected his constitutional claim, with Justice Brett M. Kavanaugh _ who joined the court after Kennedy's retirement _ in the majority with the other four conservatives.
Bucklew had been facing execution for nearly two decades, but raised his claim about the lethal injections "less than two weeks before his scheduled execution," said Justice Neil M. Gorsuch. Then, after five more years of litigation, he and his lawyers were unable to point to a better and more effective way of carrying out the execution.
"The 8th Amendment has never been understood to guarantee a condemned inmate a painless death," Gorsuch said in the courtroom. "What the 8th Amendment does guarantee is a method of execution that's not 'cruel and unusual.' And ever since the founding, people have understood that the only way to tell if a method is cruel is to compare it with other known and available alternatives, to see if the state is inflicting substantially more pain than necessary to carry out its lawful sentence."
In Bucklew vs. Precythe, Gorsuch said the inmate had the burden of showing there is an "alternative method of execution that's available for the state to use and that would significantly reduce the inmate's risk of pain."
He said Bucklew's lawyers failed to present evidence that nitrogen gas would be less painful. It would take longer for him to be rendered unconscious with gas than with an injection, Gorsuch said. "No state has ever actually carried out an execution using nitrogen gas," Gorsuch said. "Nor does the Constitution require a state to develop a novel method of execution."
The court's four liberals said the decision creates a "serious risk that his execution will be excruciating and grotesque." Justice Stephen G. Breyer said Bucklew has tumors in his throat and elsewhere that could hemorrhage and cause him to suffocate.
Breyer also argued that the majority was wrong to look back to the country's founding to decide what is cruel and unusual punishment. "The 8th Amendment is not a static prohibition that prohibits the same things that it proscribed in the 18th Century. Rather it forbids punishments that would be considered cruel and unusual today." Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined in dissent.
Bucklew went on a violent rampage in 1996 in which he shot and killed a neighbor and raped a woman. He was arrested after a shootout with police. Later he escaped from jail and attacked another woman with a hammer.
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