Supreme Court Rules Against Death-Row Inmate With Rare Health Issue

(Bloomberg) -- A divided U.S. Supreme Court ruled Monday that Missouri can give a lethal injection to a convicted murderer who says his rare medical condition means he would probably choke on his own blood.

Voting 5-4 along ideological lines, the justices rejected arguments from Russell Bucklew, who suffers from cavernous hemangioma, a disease that has caused blood-filled tumors in his head, neck and throat.

Writing for the court, Justice Neil Gorsuch said death-row inmates seeking to avoid lethal injection must show a "feasible, readily implemented" alternative method of execution. The majority rejected Bucklew’s suggestion that Missouri instead use a lethal dose of nitrogen. Gorsuch said that method had never been tried and in any event might not reduce Bucklew’s risk of suffering.

"Even if a prisoner can carry his burden of showing a readily available alternative, he must still show that it would significantly reduce a substantial risk of severe pain," Gorsuch wrote. "A minor reduction in risk is insufficient; the difference must be clear and considerable."

The ruling underscores the impact of new Justice Brett Kavanaugh, who was part of the majority. Last year Justice Anthony Kennedy joined the court’s liberal wing in a 5-4 order that halted Bucklew’s execution while the court considered the case. Kennedy has since retired and been replaced by Kavanaugh.

‘Insurmountable Hurdle’

In dissent, Justice Stephen Breyer said the majority was imposing "an insurmountable hurdle for prisoners like Bucklew."

"That hurdle, I fear, could permit states to execute even those who will endure the most serious pain and suffering, irrespective of how exceptional their case and irrespective of how thoroughly they prove it," Breyer wrote.

Bucklew, now 50, was convicted of bursting into the home where his ex-girlfriend, Stephanie Ray, was staying in 1996. Bucklew shot and killed the homeowner, Michael Sanders, before abducting Ray and raping her. Bucklew wasn’t challenging his conviction or death sentence at the high court.

Gorsuch portrayed Bucklew’s appeal as a last-ditch effort to avoid execution after two decades of legal wrangling. Gorsuch said Bucklew sued over the lethal-injection method 12 days before his scheduled execution in 2014.

"The people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them deserve better," he wrote. "Last-minute stays should be the extreme exception, not the norm.

Dissenting Justice Sonia Sotomayor said she was "especially troubled" by the Gorsuch’s "extreme exception" phrase.

That statement "could be read to intimate that late-occurring stay requests from capital prisoners should be reviewed with an especially jaundiced eye," Sotomayor wrote. "Were those comments to be mistaken for a new governing standard, they would effect a radical reinvention of established law and the judicial role."

The Supreme Court broadly upheld lethal injection a decade ago but left open the possibility that individual inmates could press challenges based on their particular circumstances.

Although Missouri has authorized gas as an alternative execution method, it hasn’t used it since 1965 and doesn’t have a functioning gas chamber.

The case is Bucklew v. Precythe, 17-8151.

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