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WASHINGTON – Three years after narrowly upholding lethal injection in executions, the Supreme Court appeared troubled Tuesday that it could cause “gruesome and brutal pain” for a Missouri prisoner with a rare medical condition. 19659005] Despite two lower court rulings maintaining the state’s plan to execute convicted murderer Russell Bucklew by lethal injection, a slim majority of justices seemed likely to send the case back for further review, including consideration of alternative methods.
Such a decision would expose a potential problem with the high court’s 2008 and 2015 decisions upholding lethal injection. In the latter case from Oklahoma, the court’s conservative justices ruled that the method must be shown to be more risky than a known alternative.
Bucklew, 50, has proposed the use of nitrogen gas, a method that has not been tested in any State, rather than those used in recent years: electrocution in Tennessee and firing squad in Utah. The state argues its one-drug lethal injection is safer.
“Are you saying if the method creates gruesome and brutal pain, you can still do it because there’s no alternative?” New Associate Justice Brett Kavanaugh, who may hold the deciding vote, asked State Solicitor D. John Sauer. “Is there any limit on that?”
Bucklew was convicted of murder, rape and kidnapping in 1996 and has not challenged his conviction or death sentence. Instead, he claims that a rare and incurable condition that causes blood-filled tumors in his throat, the neck and face creates the risk of extreme pain and suffocation.
Missouri convicted murderer Russell Bucklew is fighting for the right to be executed by lethal gas, rather than lethal injection. (Photo: MISSOURI DEPARTMENT OF CORRECTIONS / HANDOUT, EPA)
Kavanaugh succeeded Kennedy last month following a contentious confirmation battle that he won 50-48. The most recent action was by a 5-4 vote, with Associate Justice Anthony Kennedy siding with the court’s four liberals.
The Supreme Court ruled 5-4 in 2015 that Oklahoma could use a more controversial, three-drug lethal injection protocol because challengers had not proven Det ville ikke maskere overdreven smerte og hadde ikke identifisert et bedre alternativ. That decision, written by Associate Justice Samuel Alito, prompted Associate Justices Stephen Breyer and Ruth Bader Ginsburg to suggest that capital punishment itself might be unconstitutional.
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“While most people want to have a painless death, many do not have that good fortune,” Alito wrote in 2015. “Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether . “
During Tuesday’s oral argument, Alito appeared most dissatisfied with Bucklew’s challenge. Told by his attorney, Robert Hochman, that nitrogen gas would be a quicker death than lethal injection, Alito said, “What are the numbers? And where does that come from?”
Chief Justice John Roberts expressed concern that Bucklew’s chosen alternative has never been used, even though several states authorize it.
“Things can go wrong regardless of the method of execution,” he said. “And it seems to me that if you have a method that no state has ever used, that danger is magnified.”
In the 2015 case, Associate Justice Sonia Sotomayor wrote the principal dissent for the four more liberal justices, charging that the ruling “leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake.”
On Tuesday, Breyer raised both that specter and the feeling of being “drowned to death slowly over a period of time.” Han spurte om Missouri var arguing such pain and suffering should be allowed.
“The Constitution would rule out burning at the stake, absolutely,” Sauer said.
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