Courthouse Steps Decision Teleforum: Bucklew v. Precythe

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Thursday, April 4, 2019, during a live teleforum conference call held exclusively for Federalist Society members.          

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon’s topic is a Courthouse Steps Decision teleforum on Bucklew v. Precythe. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the expert on today's call.

 

Today we are fortunate to have with us, Kent Scheidegger, who is Legal Director of the Criminal Justice Legal Foundation. After our speaker gives his remarks, we will then go to audience Q&A. Thank you for sharing with us today. Kent, the floor is yours.

 

Kent Scheidegger:  This week the U.S. Supreme Court decided a method of execution case, Bucklew v. Precythe. This case is unusual because Bucklew was not challenging Missouri’s method in general but only as applied to him. In the long run, the Court’s handling of his unusual claim will likely be less important than what it said about the challenges to executions and the death penalty generally.

 

Bucklew has an unusual medical condition causing growths in this mouth that obstruct his airway and might rupture and bleed profusely. He claims that he might suffer choking in the time between when he loses conscious control of his airway and the time he becomes fully unconscious. This claim is factually weak because anesthesiologists do, in fact, anesthetize patients with this condition for surgery, and the massive dose of pentobarbital that Missouri uses induces deep unconsciousness quite quickly. However, on summary judgment against the inmate, all genuinely disputed facts are assumed in his favor.

 

Before getting to the specifics, the majority made an important statement about capital punishment and the Constitution, stating unequivocally that the Constitution allows capital punishment and, apparently, precluding an argument that this can never change. Justice Gorsuch’s opinion for the Court continues, quote, “Of course, that doesn’t mean the American people must continue to use the death penalty. The same Constitution that permits States to authorize capital punishment also allows them to outlaw it. But it does mean that the judiciary bears no license to end a debate reserved for the people and their representatives.” That is the strongest statement on this point that I have ever seen in a majority opinion. It’s as strong as Justice Black’s famous statement, concurring in McGautha v. California way back in 1971.

 

If the majority sticks to this principle, it will stop inventing new restrictions on capital punishment and may even reconsider some existing ones. The majority also notes that the Constitution does not guarantee a murderer a painless death, something relatively few of us are going to have. What the Eighth Amendment forbids is pain added on as an additional punishment, while all states today have moved to make executions as painless as they can.

 

On the specifics, the Court reaffirmed the holdings of two earlier cases, Baze v. Rees and Glossip v. Gross, that an inmate challenging a state’s method of execution must identify an alternative method that would significantly reduce a substantial risk of severe pain. The Court declined to make an exception for as-applied challenges, like Bucklew’s, versus the facial challenges in earlier cases because the line between those two kinds of challenges is not always clear, and it would simply invite pleading games.

 

Very late in the litigation, Bucklew offered nitrogen hypoxia as his alternative. That is a method in which pure nitrogen is supplied instead of air and a person goes to sleep and eventually dies. Now, I have experienced hypoxia myself in Air Force flight training, and it is indeed painless. Hypoxia may eventually become the primary method of execution in the United States, but no state has implemented it yet. That fact alone is enough to knock it out as an alternative in method of execution litigation, the Court said. The alternative must be one that the state could adopt relatively easy and relatively quickly. And a state need not be first with an untested method.

 

Bucklew also failed to show that his proposed method would be substantially better at avoiding the risk of pain that he claimed. The majority noted that the record did not support the claim, and to some extent, contradicted it. However, the Court did settle that an inmate’s proposed alternative need not be one authorized by state law. That means that a successful challenge could effectively abolish capital punishment in a state if an amendment to the state statute is required and the opponents of capital punishment have enough political strength to block the amendment. That is similar to the reason why New York, for example, has not had capital punishment for most of the time since the ‘70s, even though the death penalty has been authorized and tarried the whole time. Court decisions have required amendments and opponents have always been able to block the bills in one house of the legislature or the other or by the governor.

 

In the final part of the opinion the Court returns to the point that whether we have capital punishment is for the people, not the courts to decide. The courts, therefore, have a duty to resolve these kinds of changes expeditiously, something that was definitely not done in this case.

 

The two junior Justices had prominent roles in the decision. Justice Gorsuch wrote the opinion for a bare 5-4 majority. Justice Kavanaugh was in the majority, but he wrote a short concurrence, emphasizing the point that the alternative need not be authorized by state law. Justice Kennedy had drifted in his later years and frequently joined with the liberal Justices to invent new constitutional restrictions on punishment. He almost certainly would not have joined the Bucklew opinion in full. His replacement by Justice Kavanaugh appears to be a shift in the prosecution’s direction and potentially an important one. But Justice Kavanaugh may be the swing vote on these issues in years to come.

 

Okay, Micah, you want to open it up to questions?

 

Micah Wallen:  Absolutely. We will now go to our first question.

 

Caller 1:  Two questions. First, the Supreme Court has -- I can’t remember the case, but has permitted corporal punishment, which to me indicates that they're fine with an infliction of pain. What I’m wondering is if that has anything at all to do with their decision in this case, or if it can be related to their decision in this case? Why wouldn’t the state be allowed to devise a death penalty mechanism that purposely inflicted pain the same way we do with corporal punishment?

 

And the second question is what’s the constitutional basis, or relation at all, for the Court saying that our state needn’t do the hypoxia method of execution because it hasn’t been implemented in any other state? What does what other states have or haven’t done have to do with the Constitution in any way at all?

 

Kent Scheidegger:  Okay. I’m not familiar with the decision you're referring to as far as corporal punishment goes. But at least as far as the death penalty, this opinion and earlier opinions do say quite clearly that the state may not deliberately add pain on to the execution of the death sentence itself and deliberately choose methods that inflict additional pain. I think the Court would be unanimous on that point.

 

Caller 1:  Even if they allow pain in the corporal punishment context. So you can inflict wanton pain on students in schools but you can’t on murderers? That’s interesting to me.

 

Kent Scheidegger:  Oh, you're talking about decisions from a long time ago that allowed paddling in schools.

 

Caller 1:  And it still stands.

 

Kent Scheidegger:  Well, okay. But you're not talking about the kinds of extreme pain that were at issue and the kinds of punishments that existed, say, at the time of the Founding – whipping was allowed, cutting off ears was allowed. I don't think those kinds of things would be allowed today.

 

Caller 1:  No, no. Nor do I. But the complete -- I mean, evidently they came up with the idea that the complete avoidance of pain isn’t a guarantee in the death penalty context. But they did say you can’t add on pain. And what I'm saying is they’ve explicitly said in other contexts you can add on pain. And pain seems to me like a punishment that might be worthy of some of our more wanton killers.

 

Kent Scheidegger:  Yeah, they deserve it, but I don't think we’re going to be seeing it added on intentionally.

 

As far as the other point, the requirement under the Glossip decision is that the alternative be readily available. There are issues in developing a new method, which why no state has implemented the hypoxia method. And so the Court is not going to require that a state go through all it takes to develop a new method.

 

Caller 1:  Yeah, my only question there was where does that relate to the Constitution? What part of the Constitution says that if a person identifies something that’s new and viable, just because other states haven’t -- it hasn’t been implemented anywhere else that the state that is executing the prisoner doesn’t have to implement it. But it doesn’t seem like --

 

Kent Scheidegger:  -- They are going to pretty far from the actual wording. Well, they’re going pretty far from the original Constitution just to allow an alternative method showing at all. So that’s kind of a limitation on something that they’ve created themselves.

 

Micah Wallen:  All right. We will now go to our next question.

 

Chris Green:  Hi, this is Chris Green from Ole Miss Law School. I have a question. So I noticed -- I’m always curious in these opinions if they ever say anything about the 14th Amendment. So this is a state case, so it’s not technically a case about the Eighth Amendment. So meaning the meaning from 1791 wouldn’t necessarily control -- was there anything in the briefing that even suggested that the 14th Amendment might be relevant? Of course, there’s a very similar argument from the Due Process Clause that you can make as with the Fifth Amendment. But it seems like a lot of these incorporated right cases, we just think, “Okay, 1791 is all that matters.” And as a matter of 14th Amendment history, I criticize that. But maybe that’s just completely gone in the Court.

 

Kent Scheidegger:  Yeah, I mean you can make an argument that it’s whatever was understood in 1868. But that’s the original understanding that is relevant and not what was understood in 1791. But I don't think it matters in these cases because the understanding is not significantly different over the course of that interval.

 

Chris Green:  Yeah, I think that is right.

 

Micah Wallen:  Kent, you had covered the majority opinion and concurring opinion. You didn’t mention the dissent much. Could you go into a little bit what the dissent’s argument was?

 

Kent Scheidegger:  Justice Breyer’s main point, I think, is essentially wanting to relitigate the Glossip case and the challenges, the alternative method requirement. He’s not convincing anybody who was in the majority in Glossip, nor does he convince the new Justices. But he challenges that alternative showing requirement. And without an alternative showing requirement, then a method of execution challenge would, effectively, enable a person to shut down capital punishment altogether. That’s where Glossip got it. He said basically if the Constitution permits capital punishment, then it must be possible to implement it. And so I challenge that “makes it impossible to implement” can’t stand.

 

He also in a third part of his opinion that isn’t joined by anybody else repeats his refrain, “Well, maybe we can’t implement it at all constitutionally, and we just have to get rid of it.” Of course, that’s been going back and forth in individual justice opinions for many years now. The response is that if the Constitution requirement that we have invented prevents something the Constitution clearly permits, then maybe the requirement that we invented really isn’t in the Constitution.

 

Micah Wallen:  All right. We do have another question lined up in the queue, so we will now move to the next question.

 

Caller 3:  Hi. Thank you so much for taking time to meet with us, speak with us today about this topic. I’ve been looking -- I don't know if you can elaborate a little bit of the controversy? The liberal media seems to be very upset and confused. I don't know if you can help me understand -- elaborate that a bit?

 

Kent Scheidegger:  Elaborate on the media coverage of the case?

 

Caller 3:  Well, no, no. It’s controversial. Can you explain what controversy? Maybe I just haven’t had time to take a look.

 

Kent Scheidegger:  If you accept the allegations, then this guy is facing the possibility of facing a gruesome execution, that maybe these growths in his mouth might rupture and there’d be blood all over the place and so forth. I think his factual basis for that is quite weak. But if you accept that, then that’s enough to render the case controversial.

 

Micah Wallen:  Not seeing any questions line up immediately, Kent, did you want to offer any closing remarks? And if another question pops up, I’ll hop back on. Oh, one question actually just now came in --

 

Kent Scheidegger:  Okay.

 

Micah Wallen:  -- So we will now move to that question.

 

Caller 4:  Just one last question. The media made a lot about the footnotes regarding the two different appeals -- last minute appeals regarding the type of religious guidance or provider -- the condemnee would be offered. Could you speak a little bit about those footnotes and kind of explain what was going on?

 

Kent Scheidegger:  Yeah there were a couple of cases earlier, and one went one way and one went the other way, where inmates raised a religious issue that in a couple of states a chaplain employed by the state prison could be with the inmate in the execution chamber while a spiritual advisor who was not a state employee could only counsel the prisoner outside before he went into the chamber. And that had the effect that if you were in a religion where the state doesn’t have any prison chaplains of that religion, then you couldn’t have your spiritual advisor inside the chamber, raising an equal treatment issue.

 

And so a couple of prisoners brought that up. In one case the Supreme Court said, “You brought the claim too late. It’s denied.” And in the other case they said, “Well, okay, this one is timely enough, and we’ll consider it, or we’ll grant its day.” Justice Kavanaugh was the swing vote in those cases. That’s why one went one way and one went the other. And I think that’s significant. As far as the challenges themselves go, the obvious thing for states to do is to say, “Well, okay. We won’t allow chaplains in the execution room anymore for anybody.” And Texas has, in fact, done that. So that’s what that controversy is about.

 

Micah Wallen:  All right. Not seeing any other questions lined up in the queue, Kent, did you want to offer closing remarks?

 

Kent Scheidegger:  Yeah, I think, potentially, the most important thing about this opinion is the very strong language about these issues being for the people to decide and not for the courts. The Supreme Court has been micromanaging these issues since 1972. I think maybe the Justices are tired of the micromanagement, and perhaps they may be receptive to arguments to turn some of these decisions back to the people.

 

Micah Wallen:  Well, on behalf of The Federalist Society, I would like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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