Have You Any Decency? Bucklew v. Precythe and the Future of the Eighth Amendment

By Alex Simard (PO’22)

Content Warning: This article, as it centers on the death penalty and a man condemned to it, contains depictions of gun violence, murder, and domestic and sexual violence, including rape. It also contains graphic depictions of petitioner’s medical condition and brief depictions of 17th- and 18th-century modes of punishment, including torture.

In 1944, Albert Trop, a private in the U.S. Army, wandered into the Moroccan countryside. The young soldier was stationed east of Casablanca. Not suited for military life, he disobeyed his commanding officers and found himself in a stockade. Trop escaped and walked along the dusty road to Casablanca, cold and without food or money. A passing military vehicle stopped Trop and drove him north to Rabat. There, he was court-martialed and dishonorably discharged for desertion.

In 1951, when Trop applied for a passport, he was denied. Trop had fallen victim to a Civil War-era law that denationalized all those dishonorably discharged, a law that had been reinforced in 1940. Trop took an Eighth Amendment claim to the Supreme Court, arguing that denationalization violates the “cruel and unusual punishment” clause. The court agreed with Trop and Chief Justice Earl Warren submitted a landmark majority opinion. Warren traced the origins of the Eighth Amendment to the Magna Carta and its English legal descendants, all of which affirmed the State’s “right to punish,” but placed punishment within the “limits of civilized standards.” In accord with history, Warren argued that the “cruel and unusual” clause must, therefore, “draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” The law, dating from the 1860s, did not meet the “evolving standards of decency” test and was struck down.

For years, Trop informed the court. In Atkins v Virginia, the court applied the “evolving standards of decency” test and struck down the death penalty for mentally ill defendants. In Roper v Simmons, Justice Kennedy applied the test to strike down the juvenile death penalty. The Supreme Court’s liberal justices have held fast to Trop, and Justices Stevens and Breyer have even used the test to argue for the death penalty’s unconstitutionality.

But since 2008, a solidified conservative majority has excluded Trop from significant Eighth Amendment jurisprudence, especially as it relates to the use of lethal injection. The exclusion culminated in Justice Neil Gorsuch’s recent majority opinion in Bucklew v Precythe. This article will examine how Gorsuch crafted his majority opinion to fundamentally change Eighth Amendment jurisprudence.

In 1996, Russell Bucklew’s then-girlfriend Stephanie Ray announced she was ending their relationship. Mr. Bucklew grew violent and injured Ms. Ray. Fearing for her life, Ms. Ray sought refuge in Michael Sanders’ nearby home. Angered, Mr. Bucklew entered the home, fatally shot Mr. Sanders in the chest and shot at and missed Mr. Sanders’ young son. Mr. Bucklew then pistol-whipped, handcuffed, and drove Ms. Ray to a secluded spot and raped her. When confronted by law enforcement, Mr. Bucklew shot at responding officers before being apprehended and jailed. While in custody, Mr. Bucklew escaped and attacked Ms. Ray’s mother with a hammer.

By all standards, Russell Bucklew’s actions are atrocious. As Mr. Bucklew’s case weaved its way up the courts, he conceded that he was lawfully convicted by a jury of multiple felonies. He conceded that the court lawfully imposed a jury-recommended death sentence and the imposition of a death sentence by lethal injection is constitutional in many cases under Federal and Missouri law. Considering the litany of concessions, how exactly did Mr. Bucklew’s case end up before the Supreme Court?

Mr. Bucklew presented an “as applied” challenge to the court, meaning he asked the court for a narrow exception to established law, an exception for people like him. Mr. Bucklew suffers from cavernous hemangioma, a rare medical condition that grows blood filled tumors on the body. Even grazing one of these tumors can cause bleeding. Mr. Bucklew’s case is particularly acute. One tumor grows on his uvula, obstructing his respiratory tract and rendering every breath painful. Mr. Bucklew, with supportive medical testimony, alleged that during the lethal injection procedure he would “likely experience hemorrhaging and/or the possible rupture of the tumor.” The rupture would fill his airway with blood. Mr. Bucklew would then convulse, choke and cough on his own blood, and experience “excruciating pain and suffering.” The exact length of that suffering is disputed. The state alleges it would last “20 to 30 seconds” while others estimate it could last “a few to many minutes.” He alleged his unique potential for suffering rendered lethal injection a “cruel and unusual” punishment and the lack of medical literature on his condition required a reexamination of recent decisions, notably Baze v Rees and Glossip v Gross, two cases the conservative majority has relied on to move death penalty jurisprudence away from Trop.

In Baze, a 2008 case filed by a group of petitioners sentenced to death by lethal injection, the court upheld the use of lethal injection procedures for executions, arguing the practice didn’t breach the cruel and unusual clause. The court further argued that “pain is inherent” in any execution method and courts should consider whether a given method allows for “substantial risk of serious harm.” Lethal injection did not. In 2015, Glossip, decided by a 5-4 conservative majority, established it was the petitioner’s burden to provide a “feasible” and “readily implemented” alternative execution method that would “significantly reduce” pain and suffering in the case that the original method would cause “substantial risk of serious harm.” Together, the two cases establish the Baze-Glossip test, which synthesizes the established notions of inherent pain and alternative method.

Mr. Bucklew conceded his case fell within the legal sphere of Baze-Glossip, but he had medical testimony confirming “substantial risk of serious harm” and he had proposed an alternative method of execution, death by nitrogen hypoxia. The alternative method was legal in Missouri, and therefore “feasible” and “readily implemented.” But the uniqueness of Mr. Bucklew’s condition made it difficult to prove the method would “significantly reduce” pain and suffering. Though Mr. Bucklew presented some evidence in support of pain reduction, he argued that Glossip was flawed and in cases like his, it should be the burden of the state, and not the petitioner, who is isolated on death row with no medical expertise on a rare condition, to provide an alternative method of execution. In short, Mr. Bucklew desired a hearing to determine if nitrogen-hypoxia would be an appropriate execution method.

Justice Gorsuch’s majority opinion contains two distinct arguments. He first examines whether Baze-Glossip “governs only facial challenges, not as-applied challenges like [Mr. Bucklew’s].” In tandem with that examination is an evidentiary analysis of Mr. Bucklew’s circumstances and whether they meet the Baze-Glossip test. What makes Gorsuch’s opinion significant is his second argument, where he enshrines an originalist Eighth Amendment interpretation, one that overrides Trop.

Justice Gorsuch concluded Mr. Bucklew’s circumstances did not satisfy the Baze-Glossip test. In fact, Justice Gorsuch removed the possibility of any “as applied” challenges, arguing they were “foreclosed by precedent” because Glossip applied to “all Eighth Amendment cases.” Gorsuch could have stopped there, but he went on to argue that “courts should not be boards of inquiry charged with determining ‘best practices’ for executions.” Instead, the burden rests on Mr. Bucklew to present to the court “how nitrogen gas should be administered…in what concentration …how quickly and for how long it should be introduced… [and] how the State might ensure the safety of the execution team.” Because Mr. Bucklew didn’t present adequate evidence to meet Justice Gorsuch’s bar, the Justice and his four conservative colleagues ruled against him.

Once again, Justice Gorsuch could have stopped there, but he saw it necessary to “examine the original and historical understanding of the Eighth Amendment.” At this point, Justice Gorsuch begins to dismantle Trop and adopt a view once-held by only the court’s most conservative justices. To an extent, the Baze-Glossip test exists within the sphere of Trop. Though the burden rests heavily on the petitioner, the aim of the test is to ensure the State chooses the most humane execution method it has “feasibly and readily” available and ensure that execution method doesn’t provide a “substantial risk of harm.”  But in their concurrences in Baze and Glossip, Justices Thomas and Scalia began to sever the connection between the Blaze-Glossip test and Trop and they did so by rewriting Earl Warren’s history of the Eighth Amendment.

Earl Warren saw the history of punishment as an evolution toward decency. In his majority opinion in Trop, Warren cited the 1910 case of Weems v. U.S., wherein a man was sentenced to 12 years hard labor for falsifying public records. The court swiftly struck down the punishment, citing its excessive and unnecessary nature. To Warren, the court’s decision to strike down a punishment thought appropriate at the country’s founding qualifies the court as arbitrator of what is decent. In other words, the court should actively ensure contemporary standards of decency are applied to punishment.

In his 2015 Glossip concurrence, Justice Scalia declared Warren’s interpretation “gobbledy-gook.” To Scalia, the court is “ill-suited” to decide what is and is not decent. He believed that Trop “abandons the historical understanding of the Eighth Amendment and…should be overruled.” So what is Scalia’s reading of history? If Warren saw the Eighth Amendment as a living, evolving concept, Scalia saw it as a stationary relic. Justice Thomas, Scalia’s comrade in originalist interpretation, encouraged the court to step into the founder’s beings and consider how they might view the Eighth Amendment. In early America, death “was the standard penalty for all serious crimes,” so when the founders conceive the “cruel and unusual” clause, the death penalty didn’t surpass it. In Thomas’ reading, the Eighth Amendment was a guardrail against “the barbarism” of the old world. In Europe, England, and even colonial America, those found guilty could be “burnt at the stake.” “Embowelling alive, beheading, and quartering” the accused were also within the realm of possibility. All of these “superadded” to the pain and suffering of the accused and were designed to intentionally “terrorize the criminal and thereby more effectively deter the crime.” In Thomas and Scalia’s theory, the court should take “the view that the Framers intended,” that is “to prohibit punishment…akin to those that formed the historical backdrop of the Eighth Amendment.”

In Baze and Glossip, the court avoided a full embrace of Scalia and Thomas’ interpretation. But, when given the opportunity, Justice Gorsuch, a disciple of originalism and an admirer of the two Justices, didn’t hesitate to adopt their reasoning. Gorsuch modified the Baze-Glossip test and asked lower courts, when they see cases like Bucklew, to consider “whether the State has cruelly ‘superadded’ pain to the punishment of death.” In incorporating superaddition, Gorsuch moves away from the “evolving standards of decency” test found in Trop and Baze-Glossip and into an explicit originalist reading of the Eighth Amendment. When Justice Thomas defines superaddition, he uses the example of the Founding Fathers “surveying…the death penalty in English law,” with all its predilections for torture. Instead of Warren’s active approach, meant to ensure the State was complying with civilized standards, the originalist judge occupies the same role as the Founding Father, willing to apply only the civilized standards of 1791. In that way, superaddition is a concept that can only exist in an originalist framework. Eighth Amendment jurisprudence ponders what standard the state should be held to. On one end of the spectrum lies Trop with its strict standard of decency and civility and on the other lies Thomas’ strict originalist interpretation of superaddition, which gives the state discretion short of 18th-century torture. Baze and Glossip moved away from the absolute interpretation of Trop that had dominated Eighth Amendment jurisprudence, but it didn’t fully cross into the territory of originalism. Bucklew is the first time the majority has fully embraced an originalist reading of the Amendment.

To apply this originalist reasoning, Gorsuch used the example of hanging, which was “at the time of [Eighth] Amendment’s adoption, the predominant method of execution in this country.” Hanging, Gorsuch wrote, “did not guarantee a quick and painless death.” In fact, “many and perhaps most hangings were evidently painful,…suffocation…could take several minutes.” Despite the element of pain, at the time, hanging’s “constitutionality was never questioned.” After all, it existed in the shadow of far more brutal punishments, those described in Thomas’ concurrence. Under Torp, the court might argue that while hanging was once a common punishment, we’ve evolved as a society, we’ve become more decent. But Gorsuch made no such argument, he argued instead that “hanging, the firing squad, electrocution, and lethal injection, are not necessarily rendered unconstitutional as soon as an arguably more humane method… becomes available.” To Gorsuch and Thomas and Scalia, and now the other conservative justices, when considering what punishments are “civilized” or “decent” we must step into a time machine, embody the founders, and look back at the cruelties of the old world. What happened after 1791 doesn’t much matter.

In his dissent, Justice Breyer saw Trop eroding but applied it anyway. He believed subjecting Mr. Bucklew to the anguish of his cavernous hemangioma surpassed the “limits of civilized standards.” We don’t yet know if Bucklew is Trop’s last hurrah, but in a recent lecture at the Claremont Colleges, UCLA Professor of Law Beth Colgan argued the current makeup of the Supreme Court makes it likely interpretation of the Eighth Amendment will continue to be pushed into Scalia and Thomas’ territory. Both Gorsuch’s opinion and Thomas’ concurrence include Justice Joseph Story’s argument that the Eighth Amendment “is wholly unnecessary in free government.” When operating within an originalist interpretation of the Amendment, one that gives the State vast discretion, Justice Story’s words might prove true. In her dissent in Bucklew, Justice Sotomayor responded that “our jurisprudence must remain one of vigilance and care.” Therein lies the central debate, and this question remains through it all: should Mr. Trop be subject to the punishments of 1865, and should Mr. Bucklew be subject to the standards of 1791? Justice Gorsuch seems to think so, for better or for worse.

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