The Next Botched Execution?

Update: The full 8th Circuit reversed the panel decision and reinstated the execution. Supreme Court Justice Samuel Alito stepped up and issued a stay pending a further order by him or the Court. His stay order is here.

Update: The 8th Circuit has stayed the execution.

Via the Atlantic: Andrew Cohen writes that Russell Bucklew, scheduled for execution in Missouri tomorrow, is likely to be the next death penalty disaster for the U.S. That's because Bucklew has serious health issues.

According to the testimony of Dr. Joel Zivot, a defense expert witness in the case, Bucklew "has a tumor growing in his face, occupying the nose, throat, and airway passages and causing him to experience constant facial pain and pressure as well as constant difficultly breathing." The congenital cavernous hemangioma, the doctor asserts, "results in a significant and dangerous compromise" of Bucklew's airways.


Dr. Zivot's affidavit is here.

Based upon my review of Mr. Bucklew's medical records, it is my opinion that a a substantial risk exists that, during the execution, Mr. Bucklew will suffer from extreme or excruciating pain as a result of hemorrhaging or abnormal circulation of the lethal drug, leading to a prolonged execution.

As to the state's response, Cohen writes:

Last week, state attorneys replied in a remarkable 12-page document filed with the court. The filing devotes a page and a half to describing the murder of which Bucklew was convicted, as if his crime somehow were relevant, as a matter of law, to his current condition. It is not, but it's there in the brief to remind Missouri's judges that by recognizing Bucklew's rights they would be showing mercy to a killer.

The state also claims Bucklew waited too long to make his claim.

For years, state officials—and state- and federal-court judges as well—failed or refused to "provide adequate medical care and obtain up-to-date imaging" that Bucklew's attorneys had repeatedly sought to try to diagnose and treat their client's deteriorating condition. Zivot, the defense claims, has not been paid. Having contributed to Bucklew's condition by failing to adequately treat him, Missouri now seeks to use his health against him.

...Missouri has a constitutional duty to provide adequate medical care to Bucklew until the moment it kills him. It has failed to meet this duty by blocking Bucklew from the testing he needs to diagnose his condition. The state also has a constitutional duty to ensure that this execution is not accompanied by a level of pain that constitutes "cruel and unusual" punishment. Yet Missouri has not produced a witness to contest Zivot's grim conclusions.

Due to the secrecy surrounding the drugs in Missouri's execution cocktail, which has not been tested on anyone suffering from Bucklew's condition, no one can say what will happen to Bucklew during the execution.

The obsessive secrecy that surrounds Missouri's protocols undermines all of the principles behind the state's constitutional obligations to the condemned.

Yesterday, Missouri federal judge Beth Phillips denied Bucklew's Motion for Stay of Execution. The Order is here. She writes Bucklew failed to state a claim under the 8th Amendment because, among other things, he did not propose an alternative method of execution that would not violate the 8th Amendment.

His allegations do not permit the Court to draw a reasonable inference that a reasonably available alternative exists, or that any potential alternative is less likely to create a substantial risk of harm.

Bucklew's execution is likely to be a bloody mess. Missouri has been warned. There is no excuse for this. Hopefully, the Supreme Court will find 5 votes to block the execution. If not, I think the pendulum on public acceptance of the death penalty may finally begin to sway in the opposite direction.

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