Cruel and Unusual Punishment in a Capital Case: November 6 Oral Arguments

On Tuesday, November 6, the Supreme Court heard oral arguments in a case challenging the method of execution in a capital case. In Bucklew v. Precythe, the Court must consider a claim that a state’s chosen method of execution will cause excruciating pain due to an inmate’s particular medical conditions can violate the Eighth Amendment’s prohibition on cruel and unusual punishment.

In 1996, Russell Bucklew killed the owner of a home his former girlfriend was living in, kidnapped and raped his former girlfriend, and was apprehended after a shootout with Missouri police.  In 1998, Bucklew was convicted of murder, kidnapping, and rape and was sentenced to death. Bucklew alleges that execution by lethal injection, Missouri’s chosen method, would constitute cruel and unusual punishment because he suffers from cavernous hemangioma, a rare congenital condition which causes clumps of blood vessels to grow in his head, neck, and face. Bucklew claims that because of his condition, a lethal injection would cause excruciating pain.  

A federal district court dismissed Bucklew’s claim because he failed to identify a feasible alternative execution method, as required by the United States Supreme Court in Glossip v. Gross and Baze v. Rees.  The Supreme Court granted a stay of Buckley’s execution in March, hours before he was to be executed, with Justice Kennedy providing the fifth vote for the stay.  Bucklew later proposed execution by lethal gas to the district court, but the court held Bucklew failed to provide adequate evidence that this methodology would significantly reduce a substantial risk of severe pain. The issue before the Supreme Court is whether the inmate challenging a method of execution, even where — as here — the challenge is unique to his medical condition — must show that there is a proposed alternative method of execution that would provide a substantially greater chance of reducing unnecessary pain.

During oral argument, Justice Kavanaugh expressed concern stating “even if the method imposes gruesome brutal pain you can still go forward?”  As The Washington Post reports, Kavanaugh directed all of his questions to the Missouri Solicitor General, John Sauer. Sauer argued execution methodology can impose extreme pain, but cannot be a historically gruesome method prohibited by the Eighth Amendment nor a deliberate attempt to inflict pain for the sake of pain. Justice Kagan suggested prior Supreme Court decisions defending lethal injection were not applicable; “I think all of that stuff that we talked about in Baze about why we should refer to state-considered judgments really falls away because there’s been no considered judgment, surely by the legislature and, in general, by officials, about one particular person.”  Most of the Court’s more conservative justices, other than Justice Kavanaugh, seemed to side with the Missouri Department of Corrections. Chief Justice Roberts, for example, posited: “If the death penalty is constitutional, as it now is, there must be a way to administer it. But, if you can show that there’s another way that is less painful, then the theory is again that it’s an Eighth Amendment claim because it’s unnecessary pain.  But again, it seems to me that you can’t make that showing with respect to something that’s never been used by any other state.” More information is available in this AP story.

           In another case  BNSF Railway Company v. Loos, Michael Loos, a former employee of BNSF Railway Company, incurred attendance policy violations, some of which were attributed to a workplace injury.  BNSF terminated Loos’ employment due to the attendance policy violations and Loos brought suit alleging retaliation under the Federal Railroad Safety Act (FRSA) and negligence under the Federal Employers Liability Act (FELA). A jury awarded $30,000 for lost wages for the FELA claim and the district court ruled none of the award was subject to Railroad Retirement Tax Act (RRTA) taxation. The RRTA withholds income from railroad employees to pay for retirement benefits under the Railroad Retirement Act (RRA). Loos’ jury award is creditable towards retirement benefits. BNSF appealed and believes the award should be taxable under the RRTA, meaning BNSF would withhold taxes from the award on behalf of Loos and put the amount towards RRTA retirement benefits.  The district court denied BNSF’s motion and the United States Court of Appeals for the Eighth Circuit affirmed the decision. The case is unusual because BNSF is asking the court to impose more federal taxes on the company, although the amount is only $3,765.  The Court will determine whether damages for lost wages in a personal injury suit brought under FELA are taxable as “compensation” under the RRTA.  

Justice Ginsburg asked BNSF for clarity regarding its stake in the appeal, to which the company responded “the employer cares because under a system that would credit all lost wage FELA awards to retirement benefits but without any tax burden has a long-term risk of insolvency or instability to the system.”  Justice Sotomayor expressed concern over the practical application of taxing lost-wage awards, questioning how it would be determined what part of the awards would be subject to the RRTA provisions. According to SCOTUSblog, at least four justices (Ginsburg, Sotomayor, Kagan, and Gorsuch) asked questions sympathetic to Loos’ case, while justices Breyer and Kavanagh asked questions sympathetic to BNSF.

Written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.


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