The Supreme Court spent a cruel lesson Tuesday debating a constitutional way to execute a Missouri man suffering from a rare disease, with the likely decider, the new judge Brett M. Kavanaugh, joining the Liberals of the court with tough questions to the state adjoins.
Modern and ancient methods of execution-a firing squad, an electric shock, hanging, deadly gases burned at the stake-all appeared during the sober execution of the court, how he could kill Russell Bucklew, without banning the Constitution from cruel and unusual punishment hurt.
Missouri plans to use a single drug, pentobarbital, to carry out the long-delayed execution of Bucklew. However, he suffers from a congenital and rare disease called cavernous hemangioma. Blood-filled tumors grow in his head, throat, and throat, which, according to his lawyers, could rupture during the state's lethal injection process.
The result would be that he could choke on his own blood.
The Supreme Court has been considering the fate of Bucklew for years. Last March, he voted 5 to 4 votes to delay his execution and listen to his new challenge, in which he proposes to be killed by gas, something that Missouri has authorized but never did.
State lawyers say Bucklew can not prove that his condition is going to hurt him, and his legal battle is a trick to further delay his sentence and open a new line of legal challenges.
Justice Anthony M. Kennedy was a majority member last spring. He was replaced by Kavanaugh, who is considered more conservative, but never as a member of the US Court of Appeals for the D.C. Circuit had to decide on an execution.
Kavanaugh sent all his questions to Missouri State Attorney D. John Sauer, pushing him to the very limits of the state's arguments.
"Are you saying, even though the method causes cruel and brutal pain, can you still do it because there is no alternative?" Kavanaugh asked.
Sauer responded that Bucklew would, according to the court's earlier judgments, have to present an alternative kind of execution acceptable to the state.
Kavanaugh said, "Is that a yes?"
Sauer replied, "Yes, that's your honor."
Later, Kavanaugh asked if the state intended to make special arrangements for Bucklew, whether he was lying on a stretcher or with a raised head.
"Their opposing lawyer said that even if everything goes according to plan, there will still be considerable suffering. Can you answer that? "Asked Kavanaugh.
"I absolutely can not agree with that," said Sauer.
The court's attention to such details regarding the execution was justified by the particular nature of Bucklew's case.
He does not deny his guilt or his death sentence.
In 1996, the now 50-year-old Bucklew pursued his former girlfriend Stephanie Ray to another man. He shot and killed the man, Michael Sanders, trying to shoot Ray's fleeing child and then capture Ray. He handcuffed her and raped her. Then he wounded a police officer in a subsequent shootout.
Bucklew later escaped from prison and attacked Ray's mother with a hammer before being retaken.
Nor does he dispute the constitutionality of the death penalty or even Missouri's lethal injection. His claim is that the protocol would be applied to his specific condition, a kind of torture that the Constitution prohibits.
A split court has confirmed the deadly injection against a series of challenges. And it has shown that an inmate who makes a specific challenge to his condition must propose an alternative method of execution.
Justice Sonia Sotomayor was the court's most outspoken critic against this decision, saying that her colleagues "imposed" this requirement on Tuesday without constitutional justification.
Nevertheless, she tried to limit the impact of the decision on Bucklew.
"It will not abolish the death penalty for all," she said. "It will say the condition: If you have a person with a unique circumstance under which this person's execution method will cause agonizing pain, cruel and unusual pain, you better find another way."
Judge Stephen G. Breyer expressed Kavanaugh's point of view. He said that everyone would agree that burning someone at the stake would violate the Constitution, so a detainee would not be able to challenge a method of death that had the same physical feeling for the condemned.
John G. Roberts, Jr., the Conservative Chief, and Judge Samuel A. Alito, Jr. were the toughest respondents to Bucklew's lawyer, Robert Hochman of Chicago.
Alito asked, as Hochman knew, that running Bucklew with deadly gas would cause less trouble than the lethal injection.
And Roberts wondered about the defense's true intentions to suggest deadly gas.
"How can it be a reasonable alternative if it has never been used before?" Roberts asked, adding that the death penalty process is often an obstacle to untested execution protocols. "It seems to me that if you have a method that no state has used yet, that danger is magnified."
Sauer took this up. The reason inmates must be forced to choose an "alternative method of execution that is easily achievable" is to avoid giving "their lawyers" any incentive for endless litigation, endless litigation and numerous challenges.
Breyer said the case was not ready for a ruling by the judges that there were substantive disagreements in the case that should be decided by the lower courts.
And Sotomayor realized that Bucklew's condition was constantly changing.
He underwent a tracheotomy this summer and asked Hochman if the tube was still there. He said that was it, and he did not know when or if it would be removed.
"If the trach remains, this is a completely different case than if it is removed," Sotomayor said.
The case is Bucklev v. Precytheand it can take months for the court to make a decision.