The Red Tape Curtain: Procedural Requirements for Requests for Alternative Execution Method Shrouding Reevaluation of the Constitutionality of the ...
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The Red Tape Curtain: Procedural Requirements for Requests
for Alternative Execution Method Shrouding Reevaluation of the
Constitutionality of the Death Penalty
“Finality and federalism need no extra thumb on the scale from this Court,
least of all with a human life at stake.”1
I. INTRODUCTION
Russell Bucklew was executed by lethal injection on Tuesday, October 1,
2019.2 Although lethal injection has been a method of execution in Missouri
since 1987, Bucklew claimed the protocol was unconstitutional under the Eighth
Amendment as applied to him.3 His argument rested on his rare medical condi-
tion, called cavernous hemangioma, which he claimed would cause him to expe-
rience severe pain when injected with pentobarbital, the drug Missouri utilized
in lethal injections.4 On April 1, 2019, the Supreme Court ended Bucklew’s
search for an alternative method of execution and denied his request, citing in-
sufficiencies in his pleadings and claims.5
1. Bucklew v. Precythe, 139 S. Ct. 1112, 1147 (2019) (Sotomayor, J., dissenting).
2. See Aviva Okeson-Haberman, Russell Bucklew Executed for 1996 Murder After Missouri’s Governor
Says No to Clemency, KCUR (Oct. 1, 2019), https://www.kcur.org/post/russell-bucklew-executed-1996-murder-
after-missouris-governor-says-no-clemency#stream/0 [https://perma.cc/D5N8-H467] (describing outcome of
Bucklew’s clemency application and execution); see also Dan Margolies, Missouri Supreme Court Sets Execu-
tion Date for Russell Bucklew, KCUR (June 25, 2019), https://www.kcur.org/news/2019-06-25/missouri-su-
preme-court-sets-execution-date-for-russell-bucklew#stream/0 [https://perma.cc/B9Y4-QWYT] (announcing
Bucklew’s execution date following Supreme Court decision).
3. See State and Federal Info Missouri: History of the Death Penalty, DEATH PENALTY INFO. CTR.,
https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/missouri [https://perma.cc/2PTS-QJTL] (de-
scribing history of Missouri’s death penalty); see also MO. REV. STAT. §§ 546.720 (2019) (setting forth manner
of execution in Missouri); Bucklew, 139 S. Ct. at 1118 (summarizing Bucklew’s claim before Supreme Court).
See generally MO. REV. STAT. §§ 546.680-546.750 (2019) (codifying capital punishment process in Missouri).
4. See Bucklew, 139 S. Ct. at 1120 (explaining Bucklew’s claims supporting his challenge).
5. See Bucklew, 139 S. Ct. at 1133 (holding state entitled to summary judgment); see also Guus Duindam,
Judicial Incoherence, Capital Punishment, and the Legalization of Torture: A Response to Glossip v. Gross and
Bucklew v. Precythe, 108 GEO. L.J. ONLINE 74, 74 (2019), https://www.law.georgetown.edu/georgetown-law-
journal/wp-content/uploads/sites/26/2019/10/Duidham-Judicial-Incoherence-Capital-Punishment-and-the-Le-
galization-of-Torture-A-response-to-Glossip-v.-Gross-and-Bucklew-v.-Precythe-1.pdf [https://perma.cc/YUM6
-FYH8] (describing outcome of Bucklew). Justice Gorsuch bookended the Supreme Court’s five-to-four opinion
by recognizing the decades-long adjudication of Bucklew’s case. See Bucklew, 139 S. Ct. at 1119-20, 1133-34.
Justice Gorsuch’s majority decision highlighted the divide within the current Supreme Court, and between the
four dissenters, in resolving the issue of delays between sentencings and executions. See id. at 1134; id. at 1144-
45 (Breyer, J., dissenting); id. at 1146 (Sotomayor, J., dissenting). The Court has used Bucklew’s failure to meet
procedural requirements and Justice Gorsuch’s dicta as reasoning to deny a stay of execution for federal inmates.
See Barr v. Lee, 140 S. Ct. 2590, 2591-92 (2020) (per curiam) (describing reasons for denying stay of execution).398 SUFFOLK UNIVERSITY LAW REVIEW [Vol. LIII:397
The death penalty existed as a punishment for certain crimes even before the
founding of the United States, but the constitutionality of this punishment has
been questioned under the purview of the Eighth Amendment since the Amend-
ment’s ratification.6 Although the death penalty was struck down by the Su-
preme Court in Furman v. Georgia7 in 1972, the Supreme Court held only four
years later that the death penalty is not per se unconstitutional in Gregg v. Geor-
gia.8 In addition to the U.S. Government and the U.S. Military, twenty-five states
actively retain the death penalty as of 2020.9 In fourteen of those states and for
the U.S. Military and Government, the sole method of execution is lethal injec-
tion.10
Over time, execution methods have evolved.11 As the methods of execution
change, challenges to the constitutionality of new methods arise, and the broad
framework of Eighth Amendment jurisprudence accommodates that evolution.12
Challenges against a particular method of execution have taken the form of re-
quests for alternative methods under 42 U.S.C. § 1983.13 As of 2015, an in-
mate’s request for an alternative method of execution must meet the Baze-Glos-
sip test, which requires a “feasible, readily implemented” alternative method of
execution that “significantly reduce[s] a substantial risk of severe pain.”14 In
Bucklew v. Precythe, the Court held that the Baze-Glossip requirements, which
place the burden on the inmate, are applicable to both as-applied and facial
6. See Crimes Act of 1790, ch. 9, 1 Stat. 112 (enumerating crimes with death penalty); U.S. CONST.
amend. VIII (outlawing cruel and unusual punishments); Martin R. Gardner, Executions and Indignities: An
Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 39 OHIO ST. L.J. 96, 99-100 (1978)
(describing early Eighth Amendment challenges to capital punishment).
7. 408 U.S. 238 (1972) (per curiam).
8. See id. at 239-40 (holding death penalty constitutes cruel and unusual punishment); Gregg v. Georgia,
428 U.S. 153, 169 (1976) (holding death penalty does not invariably violate U.S. Constitution).
9. See State by State, DEATH PENALTY INFO. CTR. (2020), https://deathpenaltyinfo.org/state-and-federal-
info/state-by-state [https://perma.cc/4FD3-EGJQ] (delineating death penalty status for each state); see also 18
U.S.C. § 3591 (codifying U.S. federal death penalty). Three states have a gubernatorial moratorium on the death
penalty, the District of Columbia has abolished the death penalty, and the remaining twenty-two states do not
have the death penalty as a viable punishment. See State by State, supra.
10. See Authorized Methods by State, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/execu-
tions/methods-of-execution/authorized-methods-by-state [https://perma.cc/RC7A-KKEC] (listing states with
sole method of execution lethal injection); State by State, supra note 9 (delineating states actively retaining death
penalty); see also Methods of Execution, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/execu-
tions/methods-of-execution [https://perma.cc/MGQ5-H2K3] (outlining current authorized methods of execu-
tion).
11. See Gomez v. U.S. Dist. Ct., 503 U.S. 653, 657 (1992) (Stevens, J., dissenting) (per curiam) (describing
evolution of execution methods with moral progress).
12. See Baze v. Rees, 553 U.S. 35, 62 (2008) (plurality opinion) (highlighting historical progress and flex-
ibility of jurisprudence).
13. See Hill v. McDonough, 547 U.S. 573, 580 (2006) (holding method-of-execution claims allowable
under 42 U.S.C § 1983); see also Baze, 553 U.S. 35 at 41 (explaining method-of-execution claim by petitioners);
Glossip v. Gross, 576 U.S. 863, 867 (2015) (questioning constitutionality of execution method in Oklahoma).
14. Glossip, 576 U.S. at 877 (quoting Baze, 553 U.S. at 52) (adopting requirements for method-of-execu-
tion claim in Baze).2020] THE RED TAPE CURTAIN 399
claims. 15 Although Bucklew faced what experts said could be a gruesome—if
not cruel—death, his method-of-execution claim failed because he did not fulfill
the Baze-Glossip test.16
The procedural requirements of the Baze-Glossip test apply to any inmate
seeking an alternative method of execution.17 As seen in Bucklew, if an inmate
does not meet the test’s requirements, the court may dismiss the alternative-
method request without questioning the constitutionality of the state’s preferred
method of execution.18 This Note will examine the history and evolution of
methods of execution in the United States and the impact this alternative method-
of-execution request procedure has on Eighth Amendment jurisprudence.19
This Note will demonstrate the stifling impact procedural changes—specifically
those imposed in Bucklew—have on reviewing the constitutionality of the death
penalty under the U.S. Constitution.20
II. HISTORY
A. The Death Penalty and the Eighth Amendment
The death penalty has been a criminal punishment in the United States since
the country’s founding.21 In 1790, Congress passed a law delineating the pun-
ishments for certain crimes against the United States, including the death pen-
alty.22 Congress enacted this law after it passed the Eighth Amendment, but
15. See Bucklew v. Precythe, 139 S. Ct. 1112, 1126-29 (2019) (explaining applicability of Baze-Glossip
to individualized claims).
16. See id. at 1129, 1133 (holding Bucklew failed to meet two Baze-Glossip requirements); Petition for
Writ of Certiorari at 11-13, Bucklew, 139 S. Ct. 1112 (No. 17-8151) (describing risks of Bucklew’s execution by
lethal injection).
17. See Bucklew, 139 S. Ct. at 1127-28 (declining to adopt different standard for individualized claims).
18. See id. at 1133 (dismissing claim due to lack of evidence from claimant, not constitutionality of state’s
method).
19. See infra Part II.
20. See infra Part III.
21. See Crimes Act of 1790, ch. 9, 1 Stat. 112 (enumerating crimes with death penalty punishment). The
second session of the First United States Congress passed the Crimes Act of 1790 that enumerated punishments
for specific crimes prior to the adoption of the Eighth Amendment. See id.; U.S. CONST. amend. VIII (prohibiting
“cruel and unusual punishments”). The crimes punishable by death under the Crimes Act of 1790 included
treason, piracy, murder, robbery, counterfeiting, and accomplice to murder. See §§ 1, 3, 8-10, 14, 23, 1 Stat. at
112-15, 117 (delineating capital offenses under federal law). Notably, the Eighth Amendment fails to explicitly
enumerate the death penalty. See U.S. CONST. amend. VIII. The colonies previously utilized the death penalty
prior to the Declaration of Independence and the American Revolution, so the adoption of capital punishment
was not novel. See Early History of the Death Penalty, DEATH PENALTY INFO. CTR., https://deathpenal-
tyinfo.org/facts-and-research/history-of-the-death-penalty/early-history-of-the-death-penalty [https://perma.cc
/R7MR-ZKSD] (outlining history of capital punishment prior to founding of United States); CONST. RTS.
FOUND., A HISTORY OF THE DEATH PENALTY IN AMERICA 1-2 (2012), https://www.crf-usa.org/images/pdf/His-
toryoftheDeathPenaltyinAmerica [https://perma.cc/3QD5-FYH9] (detailing history of capital punishment in
United States).
22. See §§ 1, 3, 8-10, 14, 23, 1 Stat. at 112-15, 117 (assigning death sentence for specific crimes against
United States).400 SUFFOLK UNIVERSITY LAW REVIEW [Vol. LIII:397
before the Eighth Amendment was ratified by the states.23 The Framers, as
demonstrated through their legislative action, did not consider the death penalty
to fall within the Eighth Amendment’s prohibition against “cruel and unusual
punishments” as the provision was then understood.24
The Eighth Amendment is only sixteen words total, and four of those
words¾“cruel and unusual punishments”¾are the standard under which courts
analyze penal measures, including the death penalty.25 To determine whether a
punishment violates the Eighth Amendment, the Court looks to the meaning of
cruel and unusual and whether the punishment is permitted by society’s “evolv-
ing standards of decency.”26 The Supreme Court Justices, however, do not agree
23. See U.S. CONST. amend. VIII (outlawing “cruel and unusual punishments”); Eighth Amendment: Ex-
cessive Fines, Cruel and Unusual Punishment, NAT’L CONST. CTR., https://constitutioncenter.org/interactive-
constitution/amendment/amendment-viii [https://perma.cc/B9BS-YQ4P] (indicating date of passage and ratifi-
cation of Eighth Amendment). Although the prohibition against excessive fines remains separate, the Cruel and
Unusual Punishment Clause of the Eighth Amendment has been incorporated and applies to the states through
the Due Process Clause of the Fourteenth Amendment. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 565
(Rachel E. Barkow et al. eds., 5th ed. 2017) (outlining four unincorporated provisions of Bill of Rights).
24. See U.S. CONST. amend. VIII (codifying constitutional prohibition against cruel and unusual punish-
ments); Bucklew v. Precythe, 139 S. Ct. 1112, 1123 (2019) (defining “cruel and unusual” at time of Eighth
Amendment adoption); see also Furman v. Georgia, 408 U.S. 238, 380 (1972) (Burger, C.J., dissenting) (per
curiam) (highlighting petitioner’s concession indicating Framers approved of capital punishment at time of
Eighth Amendment adoption); id. at 465 (Rehnquist, J., dissenting) (stressing historical consistency of death
penalty); Gregg v. Georgia, 428 U.S. 153, 170 (1976) (pointing to Framers’ focus on outlawing “tortures” and
“barbarous methods[,]” not death penalty). The language of the Eighth Amendment was sourced from the Eng-
lish Bill of Rights. See John D. Bessler, A Century in the Making: The Glorious Revolution, the American
Revolution, and the Origins of the U.S. Constitution’s Eighth Amendment, 27 WM. & MARY BILL RTS. J. 989,
997 (2019) (identifying source of Eighth Amendment clauses); see also Weems v. United States, 217 U.S. 349,
397 (1910) (tracing language of Eighth Amendment to English Bill of Rights). The language of the Eighth
Amendment is assumed to carry the same purpose as the matching language in the English Bill of Rights—a way
for those in power to restrict punishment by excluding torturous and barbaric methods. See Weems, 217 U.S. at
397; Bessler, supra, at 1028. The assumption of this purpose and the originalist analysis of the Eighth Amend-
ment has led to maintaining the death penalty outside the framework of “cruel and unusual punishment.” See
infra Section II.A.1-2 (outlining history and interpretation of U.S. death penalty under Eighth Amendment).
25. See U.S. CONST. amend. VIII; Kevin M. Barry, The Death Penalty and the Fundamental Right to Life,
60 B.C. L. REV. 1545, 1597 (2019) (outlining argument Eighth Amendment controls death penalty jurisprudence).
The Court has held that constitutional claims must be brought and analyzed under the specific provision covering
the claim. See Barry, supra, at 1597; Graham v. Connor, 490 U.S. 386, 394 (1989) (outlining more-specific-
provision rule in claim of excessive force by police). Because the Court requires parties to raise a constitutional
claim under the provision that sets the analytical standard, petitioners have brought death penalty claims under
the Eighth Amendment, which controls criminal punishments. See Barry, supra, at 1597 (presenting approach
and counterarguments to determining specific provision in death penalty jurisprudence). Nevertheless, the Court
has also held certain punishments unconstitutional as a violation of the Equal Protection Clause of the Fourteenth
Amendment. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 538 (1942) (analyzing penal statute
under Fourteenth Amendment, not Eighth Amendment).
26. See Bucklew, 139 S. Ct. at 1123 (defining cruel and unusual for analysis); Gregg, 428 U.S. at 169-73
(outlining previous approaches to Eighth Amendment analysis); Trop v. Dulles, 356 U.S. 86, 101 (1958) (plural-
ity opinion) (establishing Eighth Amendment’s “evolving standards of decency” analysis); see also Estelle v.
Gamble, 429 U.S. 97, 103-04 (1976) (applying “evolving standards of decency” analysis); Michael D. Dean,
State Legislation and the “Evolving Standards of Decency”: Flaws in the Constitutional Review of Death Pen-
alty Statutes, 35 U. DAYTON L. REV. 379, 389 (2010) (describing application of “evolving standards of decency”
since Trop).2020] THE RED TAPE CURTAIN 401
on a uniform definition of those terms, so there remains no determinative crite-
rion for what constitutes a cruel and unusual punishment.27
1. Defining Cruel in the Supreme Court
When Congress ratified the Eighth Amendment, “cruel” was equated with
“torturous” or “barbarous” and associated with tyrannical behavior.28 Cruel
punishments were those intended to inflict pain on the individual and were con-
sidered “inhuman” or even inciting pleasure in the punisher.29 Although his-
toric definitions inform an originalist’s meaning of cruel and are considered
when analyzing punishments, they are not controlling.30 The cruel intent of the
punisher is not necessary to find a punishment cruel under the Cruel and Unusual
Punishment Clause.31 A nonoriginalist would argue punishment today is cruel if
it does not comport with “the dignity of man.”32 Consequently, there is no con-
sistent legal standard for what constitutes a cruel punishment.33
2. Defining Unusual in the Supreme Court
The definition of unusual has not married well with the Court’s “evolving
standards of decency” analysis.34 Because any new form of punishment would
be considered unusual if not aligned with traditional U.S. punishments, the his-
toric definition of unusual prevents evolution.35 Historically, unusual has been
understood to mean the punishment has become rare or fallen out of use.36 Un-
usual can also be considered simply a departure from precedent, custom, or the
intended application of written law.37 The latter definition may comport with in-
novation if the Court first considers whether the punishment aligns with
27. See John D. Bessler, The Concept of “Unusual Punishments” in Anglo-American Law: The Death
Penalty as Arbitrary, Discriminatory, and Cruel and Unusual, 13 NW. J.L. & SOC. POL’Y 307, 313-14 (2018)
(emphasizing Justices’ disagreement over interpretation of Eighth Amendment).
28. See Bucklew, 139 S. Ct. at 1123 (defining significant terminology in Eighth Amendment); Bessler,
supra note 24, at 1034 (describing origin of Eighth Amendment terminology).
29. See Bucklew, 139 S. Ct. at 1123 (defining cruel in eighteenth century).
30. See Trop, 356 U.S. at 100-01 (generalizing purpose of Eighth Amendment). The historic definitions
inform the Court’s analysis, but the “evolving standards of decency” analysis now controls the legal definition
of cruel and unusual. See id. at 101 (establishing “evolving standards of decency” analysis for Eighth Amend-
ment).
31. See John F. Stinneford, The Original Meaning of “Cruel,” 105 GEO. L.J. 441, 493 (2017) (defining
cruel in Cruel and Unusual Punishments Clause).
32. See Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion) (determining basic understanding and
modern application of Eighth Amendment); see also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464
(1947) (plurality opinion) (describing U.S. Constitution’s prohibition of cruelty).
33. See Stinneford, supra note 31, at 494-95 (outlining lack of judicial competence in identifying “cruel”).
34. See John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to
Cruel Innovation, 102 NW. U. L. REV. 1739, 1815-16 (2008) (describing conflict between “evolving standards of
decency” and long-usage definition).
35. See id. at 1816 (contrasting “evolving standards of decency” analysis and long-usage analysis).
36. See id. at 1814 (concluding unusual historically defined contrary to long usage).
37. See Bessler, supra note 24, at 1034 (defining unusual under English common law).402 SUFFOLK UNIVERSITY LAW REVIEW [Vol. LIII:397
longstanding traditions prior to comparing the harshness of the punishment to
current practices.38
B. U.S. Death Penalty Fall and Rise Again
1. Furman and the Fall of the Death Penalty
As countries around the world began to explicitly abolish capital punishment,
the United States followed the trend through the Supreme Court’s holding in
Furman v. Georgia.39 The United States, however, remained an outlier because
the Court’s holding was specific to the procedure applied in the cases before the
Court, not the death penalty in general.40 The impact of Furman was the tempo-
rary abolition of the death penalty across the United States.41
In the five-to-four decision, the Supreme Court held that the death penalty as
imposed in these cases was unconstitutional.42 Because the holding focused on
the statutes outlining the procedure of imposing the death penalty and not the
death penalty itself, the Court left open the opportunity for the death penalty to
38. See Stinneford, supra note 34, at 1817 (outlining analysis under “contrary to long usage” definition of
unusual).
39. See Furman v. Georgia, 408 U.S. 238, 239-40 (1972) (per curiam) (holding imposition of death penalty
in specific cases violates Eighth Amendment); DAVID GARLAND, PECULIAR INSTITUTION: AMERICA’S DEATH
PENALTY IN AN AGE OF ABOLITION 206 (2010) (introducing context of death penalty abolition in United States);
see also GARLAND, supra, at 112 (discussing abolition of death penalty across Europe in 1960s and 1970s).
40. See Furman, 408 U.S. at 239-40 (holding “imposition and carrying out of death penalty in these cases”
violates Eighth Amendment). Five Justices agreed that the death penalty was unconstitutional in the cases at
hand but applied different reasoning, generating the various judgments of the Court. See id. at 240 (delineating
final opinions of Justices). Two of the five Justices, Justice Brennan and Justice Marshall, concluded that the
death penalty is per se unconstitutional. See id. at 286 (Brennan, J., concurring); id. at 369 (Marshall, J., concur-
ring). Justice Douglas concurred in the judgment of the Court, focusing his analysis on the discriminatory effect
of the death penalty’s current administration. See id. at 256-57 (Douglas, J., concurring) (determining discre-
tionary statutes unconstitutional). Justice Stewart wrote that the death sentences before the Court “are cruel and
unusual in the same way that being struck by lightning is cruel and unusual.” Id. at 309 (Stewart, J., concurring).
Justice Stewart placed the arbitrary and random imposition of the death penalty within the scope of cruel and
unusual punishments. See id. at 309-10 (highlighting randomness of petitioners’ sentences among others con-
victed of similar crimes). Nevertheless, he restrained his opinion only to the sentences and statutes before the
Court, explicitly stating he would not answer the question of constitutionality of death penalty for all crimes. See
id. at 307 (delineating statutes outside of case requiring review of death penalty overall). Similarly, Justice White
unequivocally refused to consider the question of the death penalty as facially unconstitutional. See id. at 310-
11 (White, J., concurring) (limiting question before Court to only statutes raised in involved cases). The five
Justices in the majority agreed the increasingly rare imposition of the death penalty made the punishment in these
cases cruel and unusual in violation of the Eighth Amendment. See MICHAEL MELTSNER, CRUEL AND UNUSUAL:
THE SUPREME COURT AND CAPITAL PUNISHMENT 216 (Quid Pro Books 2011) (1973).
41. See GARLAND, supra note 39, at 229 (describing immediate impact of Furman decision). The Court’s
decision vacated the sentences of the three petitioners as well as all individuals on death rows at that time. See
id.
42. See Furman, 480 U.S. at 239-40 (holding imposition of death penalty under specific statutes unconsti-
tutional).2020] THE RED TAPE CURTAIN 403
return.43 Furman was a reprieve for those on death row, but its focus on arbitrary
and rare occurrences of the death penalty due to improper procedure created an
avenue for states to enact death-sentence statutes that categorically avoided fall-
ing within the realm of cruel and unusual.44 The temporary abolition provided
by Furman ended only four years later.45
2. Gregg and the Return of the Death Penalty
Following the Furman decision, the State of Georgia changed its sentencing
procedure for capital cases, and the Supreme Court was asked again to determine
the constitutionality of the state’s capital sentencing process.46 Before the Court
analyzed the statute in question, it held that the death penalty is not per se un-
constitutional.47 Utilizing the “evolving standards of decency” analysis against
the petitioners, the Court pointed to the post-Furman statutes passed by several
43. See GARLAND, supra note 39, at 230 (discussing focus on procedure in outcome of Furman); see also
infra notes 47-48 and accompanying text (describing reevaluation and reinstatement of death penalty after Fur-
man).
44. See GARLAND, supra note 39, at 230. Justices Douglas, Stewart, and White concluded in Furman that
the procedure of imposing the death penalty, not the penalty itself, was cruel and unusual and therefore uncon-
stitutional. See MELTSNER, supra note 40, at 217-18 (describing reasoning of three concurring Justices in Fur-
man). The conclusion of these three Justices allowed for states to rewrite their statutes to avoid classification of
the death penalty as cruel and unusual. See GARLAND, supra note 39, at 258 (expounding impact of Furman).
These new statutes have been held constitutional and impose a standard of “super due process.” See Margaret
Jane Radin, Cruel Punishments and Respect for Persons: Super Due Process for Death, 53 S. CAL. L. REV. 1143,
1143-44 (1980) (describing case history of “super due process”). This “super due process” impacts the discretion
of the sentencer by requiring consideration of both mitigating and aggravating factors during a sentencing process
that is distinct from the guilt determination. See id. at 1143 (describing “super due process” and sentencing in
death penalty cases).
45. See Gregg v. Georgia, 428 U.S. 153, 169 (1976) (holding death penalty not per se unconstitutional).
Compare id. at 168-69 (explaining Furman “never confronted squarely” claim of death penalty always constitut-
ing cruel and unusual punishment), with Furman v. Georgia, 408 U.S. 238, 239-40 (1972) (per curiam) (holding
imposition of death penalty in certain cases violates Eighth Amendment).
46. See Gregg, 428 U.S. at 162-63 (describing question before Court); see also Daniel G. Bird, Note, Life
on the Line: Pondering the Fate of a Substantive Due Process Challenge to the Death Penalty, 40 AM. CRIM. L.
REV. 1329, 1381 (2003) (acknowledging Court’s deference to state legislatures). At the time of Gregg, Georgia
utilized a bifurcated trial, specific sentencing guidelines, and full appellate review. See 428 U.S. at 162-68 (out-
lining Georgia’s statutory structure for sentencing in capital cases); see also GARLAND, supra note 39, at 259-60
(discussing design of Gregg and companion cases’ death penalty statutes).
47. See Gregg, 428 U.S. at 169 (holding death penalty not unconstitutional). In upholding the constitu-
tionality of the death penalty, the Court highlighted the history of assumptions that death is a constitutional pun-
ishment. See id. at 169-73 (describing precedent of Eighth Amendment challenges against death penalty). The
Court focused on arguments raised in past Eighth Amendment cases, highlighting that most were focused on the
method of execution, not the execution generally. See id. Nevertheless, the Court did acknowledge the devel-
oping analytical framework of the “evolving standards of decency.” See id. at 172-73 (acknowledging the evo-
lution of the Eighth Amendment); see also Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion) (deter-
mining Amendment’s meaning changes with “evolving standards of decency”). The “evolving standards of
decency” became the basis of Justices Brennan and Marshall’s conclusion that the death penalty is per se uncon-
stitutional in Furman. See Furman, 408 U.S. at 269-70, 327 (setting forth analysis under “evolving standards of
decency”).404 SUFFOLK UNIVERSITY LAW REVIEW [Vol. LIII:397
states and Congress as evidence that society did not reject the death penalty.48
While Furman had abolished the death penalty temporarily, Gregg essentially
reinstated the death penalty with merely procedural requirements that, according
to the Court, would ensure the punishment was not imposed in a cruel or unusual
fashion, and therefore could not be found unconstitutional.49
3. Successful Eighth Amendment Attacks on Death Penalty
Following the reinstatement of the death penalty in Gregg, the Supreme Court
placed some limitations on applying the sentence.50 First, the Supreme Court
held that imposing the death penalty for the crime of rape is unconstitutional
under the Eighth Amendment.51 In 2002, the Court held that executing an indi-
vidual with mental disabilities is unconstitutional under the Eighth Amendment,
overturning a thirteen-year-old case.52 The Court overturned another case in
2005, holding that the execution of individuals under the age of eighteen at the
time of the commission of a capital crime is unconstitutional under the Eighth
Amendment.53 Each of these limitations were founded in the Court’s Eighth
48. See Gregg, 428 U.S. at 179-81 (outlining post-Furman death penalty statutes). The Court used a double
negative, holding that “the death penalty is not a form of punishment that may never be imposed.” See id. at 187.
The ambiguous finality of the Court’s holding coupled with the acknowledgment of the “evolving standards of
decency” analysis of the Gregg opinion initiated the new era of the death penalty. See GARLAND, supra note 39,
at 261 (describing Gregg start of modern death penalty in United States).
49. See GARLAND, supra note 39, at 261 (describing impact of Gregg decision).
50. See Limiting the Death Penalty, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/facts-and-
research/history-of-the-death-penalty/limiting-the-death-penalty [https://perma.cc/Q7GK-SUWN] (delineating
history of death penalty limitations post-Gregg); see also Steven R. Manley, The Constitution, the Punishment
of Death, and Misguided “Originalism,” 1999 L. REV. M.S.U.-D.C.L. 913, 935-36 (describing limitations on
death penalty).
51. See Coker v. Georgia, 433 U.S. 584, 592 (1977) (holding death penalty for crime of rape unconstitu-
tional). The Court analyzed the constitutionality of the death penalty in this case through the lens of proportion-
ality to the crime. See id. at 597-99 (applying proportionality analysis to death penalty for crime of rape). The
Court highlighted that the analysis of Eighth Amendment claims focuses on objective factors, such as public
attitudes, precedent, legislative actions, and juries’ sentencing decisions. See id. at 592 (describing analytical
framework for Eighth Amendment judgments). Coker prohibited the use of the death penalty as a punishment
for rape, and thirty-one years later, the Court extended this limitation to the rape of a minor where the crime did
not result, and did not intend to result, in the death of the victim. See Kennedy v. Louisiana, 554 U.S. 407, 413
(2008) (holding death penalty for nonlethal rape of child unconstitutional). The Court again used the analytical
framework of objective factors, demonstrating the consensus against imposing the death penalty for a particular
crime. See id. at 422 (describing Court’s precedential analytical approach).
52. See Atkins v. Virginia, 536 U.S. 304, 307, 321 (2002) (holding death penalty against individual with
mental disabilities excessive and unconstitutional). The Court based its decision on the consistency of states’
legislative changes to prohibit the imposition of the death penalty against individuals with mental disabilities.
See id. at 315-16 (explaining public consensus against execution of individuals with mental disabilities). Addi-
tionally, the Court reasoned that executing an individual with developmental disabilities would not serve the
retributive or deterrent justifications of the death penalty and therefore would fall within the purview of cruel and
unusual punishment. See id. at 318-20 (discussing lack of justification for imposition of death penalty on indi-
viduals with mental disabilities).
53. See Roper v. Simmons, 543 U.S. 551, 568, 578 (2005) (holding Eighth Amendment prohibits execution
of minor defendants). The Court again framed the Eighth Amendment analysis through objective factors and
proportionality to the crime. See id. at 564 (describing analytical approach of Court). Like its reasoning regarding2020] THE RED TAPE CURTAIN 405
Amendment jurisprudence that a punishment must be proportional to the crime
and have a penological justification to be constitutional; the Court, however, did
not consider the procedure through which capital punishment was imposed.54
Notably, the Court has never limited the methods of execution.55
C. Implementing Capital Punishment
1. History of Methods of Execution
The Supreme Court has never invalidated a state’s chosen method of execu-
tion as an infliction of a cruel and unusual punishment.56 The First Congress
named hanging as the method of execution when a defendant was sentenced to
death.57 Set originally in the public square, hangings grew more private over
time, which coincided with improving the technology of executions to minimize
suffering.58 Today, three states still have laws authorizing hanging as a method
of execution in limited circumstances, though none of those states currently carry
out the death penalty.59 The firing squad, also utilized early in U.S. history, re-
mains authorized exclusively as an alternative method of execution to three
states’ primary method of lethal injection.60
individuals with mental disabilities in Atkins, the Court recognized that the public consensus of the diminished
culpability of juveniles undermines the penological justifications of the death penalty: deterrence and retribution.
See id. at 571 (discussing lack of justification for execution of minors).
54. See Coker, 433 U.S. at 592 (highlighting excessive nature of death penalty in crime of rape); Atkins,
536 U.S. at 311, 318-20 (describing basis of Court’s reasoning); Roper, 543 U.S. at 568-572 (delineating differ-
ences of juvenile defendants to support conclusion of disproportionality). Outside Eighth Amendment jurispru-
dence, the Supreme Court has refused to limit the death penalty under the Equal Protection Clause of the Four-
teenth Amendment when an inmate claimed racial bias in Georgia’s renewed death penalty sentencing process.
See McCleskey v. Kemp, 481 U.S. 279, 292 (1987) (denying Fourteenth Amendment challenge because chal-
lenger failed to provide individualized evidence of discrimination); U.S. CONST. amend. XIV § 1 (guaranteeing
equal protection under law).
55. See Baze v. Rees, 553 U.S. 35, 48 (2008) (plurality opinion) (stating Court never invalidated chosen
method of execution).
56. See id.
57. See Crimes Act of 1790 § 33, ch. 9, 1 Stat. 112, 119 (declaring hanging exclusive method of execution).
58. See GARLAND, supra note 39, at 116-17 (explaining history and development of hanging in United
States). The United States’ desire to limit the appearance of suffering led to the development of several technol-
ogies of hanging, including the trap-door hanging and the “upright jerker.” See id. at 117 (describing technologies
of hanging).
59. See Authorized Methods by State, supra note 10 (providing states’ authorized methods of execution);
see also Methods of Execution, supra note 10 (outlining current authorized methods of execution). The general
movement towards decreasing the suffering of the convicted may explain the reduction in the use of hanging, but
other evidence suggests that a desire to distance state executions from the unlawful, public lynchings occurring
in the post-Reconstruction South catalyzed the reduction of hanging as a method of execution. See GARLAND,
supra note 39, at 118-19 (explaining cultural impetus behind movement away from hanging). In addition to the
possible immense pain and suffering of strangulation if the execution is not perfectly measured, hanging carries
great physical indignities, including substantial mutilation of the body and involuntary urination and defecation.
See Gardner, supra note 6, at 121 (describing physical effects of hangings).
60. See Authorized Methods by State, supra note 10 (listing statutory basis for states’ methods of execu-
tion); Methods of Execution, supra note 10 (delineating authorized methods of execution by state). Like hanging,406 SUFFOLK UNIVERSITY LAW REVIEW [Vol. LIII:397
As the desire to minimize the individual’s pain and suffering drove techno-
logical advances, electrocution and the gas chamber became the primary meth-
ods of execution adopted by the states.61 Nine states maintain electrocution as
an authorized method of execution, and six states still authorize lethal gas.62
Both methods, however, have been relegated to alternative methods of execution
because all death-penalty states and the federal government designate lethal in-
jection as the primary method of execution.63
2. Lethal Injection
Lethal injection was introduced in the United States in 1982.64 Although
most states utilized a three-drug protocol, the unavailability of those drugs has
forced states to alter their procedures.65 Public stories of botched executions,
death by firing squad inflicts physical indignities, including a mutilated body, and the opportunity for immense
pain and suffering if the shots are not immediately fatal. See Gardner, supra note 6, at 123-25 (describing out-
come of firing squad execution).
61. See GARLAND, supra note 39, at 117 (outlining timeline of methods of execution in United States).
62. See Authorized Methods by State, supra note 10 (listing states’ method of execution statutes); Methods
of Execution, supra note 10 (detailing authorized methods of execution by state). First used in 1890, electrocution
was adopted as a means of replacing the pain and suffering of hanging. See GARLAND, supra note 39, at 117
(delineating historical timeline of methods of execution); Gardner, supra note 6, at 125 (explaining purpose of
adopting electrocution). Electrocution, however, carries many physical indignities both prior to and during the
execution itself, including shaving the head and calf, involuntary urination and defecation, bodily convulsions,
and possible burns or the body catching on fire. See Gardner, supra note 6, at 126 (describing physical impact
of electrocution). The gas chamber was introduced in 1924 to avoid the pain and suffering caused by previous
methods of execution, including electrocution. See id. at 127 (explaining purpose of adoption of gas chamber);
GARLAND, supra note 39, at 117 (providing timeline for various methods of execution in United States). Lethal
gas does not physically mutilate the body’s exterior as consistently as hanging, firing squad, and electrocution
do, but it carries ambiguity and uncertainty regarding the amount of pain experienced by and inflicted upon the
prisoner. See Gardner, supra note 6, at 127-28 (describing outcomes of gas chamber executions). Inmates suc-
cessfully challenged the constitutionality of the gas chamber, but the Ninth Circuit’s decision was vacated by the
Supreme Court following the modification of California’s death penalty statute. See Fierro v. Gomez, 77 F.3d
301, 309 (9th Cir.), vacated and remanded, 519 U.S. 918 (1996). The Ninth Circuit distinguished Fierro from
cases in the Fourth and Fifth Circuits that affirmed the constitutionality of the gas chamber. See id. at 308-09;
see also Hunt v. Nuth, 57 F.3d 1327, 1337-38 (4th Cir. 1995) (holding gas chamber constitutional method of
execution); Gray v. Lucas, 710 F.2d 1048, 1061 (5th Cir. 1983) (holding gas chamber not prohibited by Eighth
Amendment).
63. See Authorized Methods by State, supra note 10 (listing states’ method of execution statutes providing
lethal injection primary method); Methods of Execution, supra note 10 (delineating authorized methods of exe-
cution by state).
64. See GARLAND, supra note 39, at 117 (outlining historical timeline of methods of execution). Oklahoma
was the first state to adopt lethal injection through legislation in 1977, and Texas followed the next day. See
Deborah W. Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76
FORDHAM L. REV. 49, 65, 78 (2007) (identifying first states authorizing lethal injection).
65. See Overview of Lethal Injection Protocols, DEATH PENALTY INFO. CTR., https://deathpenal-
tyinfo.org/executions/lethal-injection/overview-of-lethal-injection-protocols [https://perma.cc/5DF6-C268]
(outlining adopted methods of execution by lethal injection). Missouri adopted a new protocol in October 2013.
See State by State Lethal Injection Protocols, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/execu-
tions/lethal-injection/state-by-state-lethal-injection-protocols [https://perma.cc/3PAJ-9NKA] (listing infor-
mation regarding states’ lethal injection protocols). Missouri’s method changed from a three-drug protocol to a
single-drug protocol, consisting of only pentobarbital. See id. (delineating change in Missouri’s lethal injection2020] THE RED TAPE CURTAIN 407
coupled with growing secrecy surrounding states’ lethal injection protocols, has
led to an increase in lawsuits by inmates; however, the lack of information con-
cerning these protocols has prevented petitioners from demonstrating the uncon-
stitutionality of lethal injection methods.66 As the number of constitutional
claims against lethal injection rose, the Supreme Court permitted inmates to
bring those actions under § 1983.67
3. Alternative Method-of-Execution Claims
Alternative method-of-execution claims are brought under § 1983.68 An in-
mate’s action for an alternative method of execution must include specific infor-
mation, to which the petitioner often does not have access.69 To demonstrate
such a claim, an inmate must first demonstrate that the state’s procedure imposes
a substantial risk of serious harm.70 The inmate must then provide an alternative
method that is “feasible, readily implemented, and in fact significantly reduce[s]
a substantial risk of severe pain.”71 The Court adopted this standard, first gener-
ally in a plurality opinion in Baze v. Rees, then for facial claims in Glossip v.
Gross, and finally for an individual’s as-applied claim in Bucklew v. Precythe.72
protocol). Pentobarbital is primarily used in euthanasia of animals by veterinarians and by doctors in emergency
situations, such as operating rooms and intensive care units, to control seizures and brain swelling. See Erica
Hunzinger, Secret Sedative: How Missouri Uses Pentobarbital in Executions, ST. LOUIS PUB. RADIO (Aug. 18,
2017, 4:56 AM), https://news.stlpublicradio.org/post/secret-sedative-how-missouri-uses-pentobarbital-execu-
tions#stream/0 [https://perma.cc/FT8F-Y5MT] (describing Missouri’s one-drug protocol).
66. See Note, A New Test for Evaluating Eighth Amendment Challenges to Lethal Injections, 120 HARV.
L. REV. 1301, 1304 (2007) (describing eruption of constitutional challenges to lethal injection); Denno, supra
note 64, at 96 (noting lack of information creates obstacles in determining constitutionality); ROBIN KONRAD,
DEATH PENALTY INFO. CTR., BEHIND THE CURTAIN: SECRECY AND THE DEATH PENALTY IN THE UNITED STATES
4-5, 46-48 (Robert Dunham & Ngozi Ndulue eds., 2018), https://files.deathpenaltyinfo.org/documents/pdf/Secre-
cyReport-2.f1560295685.pdf [https://perma.cc/ZN9E-T6FJ] (describing impact of secrecy around state lethal in-
jection protocols).
67. See Hill v. McDonough, 547 U.S. 573, 580 (2006) (holding method-of-execution claims cognizable
under § 1983); Note, supra note 66, at 1304 (describing impact of rising number of claims against lethal injec-
tion); see also 42 U.S.C. § 1983 (authorizing inmates to pursue civil actions against state for deprivation of
rights).
68. See Hill, 547 U.S. at 580 (holding inmate’s alternative-method action could proceed under § 1983).
69. See Baze v. Rees, 553 U.S. 35, 51 (2008) (plurality opinion) (outlining requirements for alternative-
method claim); Glossip v. Gross, 576 U.S. 863, 876-77 (2015) (utilizing Baze controlling opinion in analysis);
KONRAD, supra note 66, at 7-8 (describing impact of secrecy around lethal injection protocols on inmates’
claims).
70. See Glossip, 576 U.S. at 877 (citing Baze, 553 U.S. at 50) (outlining requirements for alternative-
method claim); see also Bucklew v. Precythe, 139 S. Ct. 1112, 1125 (2019) (describing Baze and Glossip re-
quirements for method-of-execution claims).
71. Baze, 553 U.S. at 52 (defining requirements for alternative method); see Glossip, 576 U.S. at 877 (out-
lining analysis for alternative-method claim). As part of the Court’s opinion in Bucklew v. Precythe, Justice
Gorsuch highlighted the comparative nature of the Baze-Glossip requirements, writing that an alternative-method
claim involves a “necessarily comparative exercise.” See Bucklew, 139 S. Ct. at 1126 (emphasis omitted) (dis-
cussing absence of alternative method in claim before Court).
72. See Baze, 553 U.S. at 52 (outlining requirements for alternative method-of-execution claims); Glossip,
576 U.S. at 876-77 (holding Baze controlling and applicable to facial challenge); Bucklew, 139 S. Ct. at 1126-28
(dismissing argument Baze-Glossip does not apply to individual-specific alternative-method claims).408 SUFFOLK UNIVERSITY LAW REVIEW [Vol. LIII:397
The necessary comparison between the state’s primary method of execution and
the inmate’s proposed alternative method ensures that these claims, at most, have
the potential to change the method the state uses in the petitioner’s execution,
but do not allow the petitioner to commute a death sentence.73
4. Bucklew’s Alternative-Method Claim
Russell Bucklew was convicted of first degree murder, kidnapping, and rape
and sentenced to death by a Missouri state court in 1998.74 After several years
of postconviction litigation, the Supreme Court of Missouri issued a writ of exe-
cution for Bucklew for May 21, 2014.75 Bucklew subsequently filed an action
under § 1983, alleging that Missouri’s lethal injection method of execution
would impose a cruel and unusual punishment as applied to him.76
Bucklew suffered from cavernous hemangioma, a rare medical condition that
forms inoperable, blood-filled tumors in his throat and around his head and
neck.77 Bucklew’s medical condition caused him to have difficulty breathing
due to an enlarged uvula, imposed a risk of catastrophic hemorrhaging, and com-
promised Bucklew’s peripheral veins.78 Based on this medical condition, Buck-
lew’s alternative-method claim focused on two potential sources of a substantial
risk of serious harm.79
The first risk of serious harm is when the medical team attempts to access a
vein to administer the lethal injection.80 Bucklew alleged that the medical
team’s process to access a viable vein would impose both an increased threat of
possible rupture of his tumors and an increased physical harm through a cut-
down procedure.81 After accessing a vein and administering the lethal injection,
73. See Hill v. McDonough, 547 U.S. 573, 581-82 (2006) (explaining reasoning for requirement of provid-
ing alternative method of execution in claim). The Court ensured that the injunctive relief sought in an alterna-
tive-method claim would only bar the method imposed originally by the state, not the execution. See id. at 581
(identifying significance of requirements in § 1983 action for alternative method).
74. See Bucklew v. Precythe, 883 F.3d 1087, 1089 (8th Cir. 2018) (outlining factual background of Buck-
lew’s case), aff’d, 139 S. Ct. 1112 (2019); Petition for Writ of Certiorari, supra note 16, at 8 (describing Buck-
lew’s conviction); see also MO. REV. STAT. § 565.020 (2019) (codifying punishment of death for first degree
murder). The Supreme Court of Missouri affirmed Bucklew’s conviction and sentence on direct appeal. See
State v. Bucklew, 973 S.W.2d 83, 86 (Mo. 1998) (affirming judgment and sentencing). After being denied post-
conviction relief by Missouri state courts, Bucklew filed a petition for federal writ of habeas corpus, which was
subsequently denied. See Bucklew v. State, 38 S.W.3d 395, 396 (Mo. 2001) (en banc) (affirming denial of
postconviction relief); Bucklew v. Luebbers, 436 F.3d 1010, 1013 (8th Cir. 2006) (affirming denial of petition
for writ of habeas corpus).
75. See Bucklew, 883 F.3d at 1089 (outlining procedural background).
76. See id.
77. See Petition for Writ of Certiorari, supra note 16, at 8-9 (outlining known risks for Bucklew).
78. See id. at 8-10 (describing impact of cavernous hemangioma).
79. See id. at 11-13 (outlining known risks for Bucklew).
80. See id. at 11-12 (describing painful effect of accessing Bucklew’s veins).
81. See Petition for Writ of Certiorari, supra note 16, at 11-12 (alleging serious harm prior to administration
of lethal injection). In the cut-down procedure, the medical team would lay Bucklew flat and attempt to access
the femoral vein, located in Bucklew’s thigh. See id. The petition does not allege that the cut-down procedure
is cruel; instead, Bucklew alleges that the increased stress and required position for the procedure increases the2020] THE RED TAPE CURTAIN 409
Bucklew alleged the second risk of serious harm was his inability to manage his
airway while experiencing the sensation of suffocation.82
To avoid these two specific risks of serious harm, Bucklew proposed nitrogen
hypoxia as the alternative method of execution.83 Bucklew emphasized that ni-
trogen hypoxia required no venous access at all and can be administered while
Bucklew remains in a seated position, directly evading the risks of serious harm
highlighted in his petition.84 Oklahoma, Mississippi, and Alabama have author-
ized nitrogen hypoxia for executions but are still developing the protocol for car-
rying out the method.85
III. ANALYSIS
A. The End of Eighth Amendment Challenges
Death penalty abolitionists have focused on the Supreme Court as the vehicle
for ending the death penalty in the United States.86 The design of U.S. democ-
racy requires this avenue because the U.S. political structure pigeonholes the Su-
preme Court as the counter-majoritarian force in the country.87 Although the
Court has limited applications of the death penalty, the Court has also held that
the death penalty itself is not per se unconstitutional.88 This holding was rein-
forced in Bucklew v. Precythe.89
In addition to excluding certain groups of individuals from receiving the death
penalty, the Court has placed limitations on an individual’s ability to challenge
likelihood that he would choke on his tumor and gag on his own blood. See id. at 12. The petition also includes
the risk of piercing the femoral artery in attempting to gain access to the femoral vein imposed by the cut-down
procedure—a danger that previously occurred during a failed execution in Alabama. See id.
82. See id. at 13 (describing Bucklew’s second risk of harm). Bucklew’s expert and the state’s expert
differed on the length of time that Bucklew would remain aware of the sense of suffocation, but both measure-
ments were in addition to any time prior to drug administration. See id.
83. See id. at 14 (proposing alternative method of execution for Bucklew).
84. See id. at 14-15 (describing possible administration of lethal gas for execution).
85. See Denise Grady & Jan Hoffman, States Turn to an Unproven Method of Execution: Nitrogen Gas,
N.Y. TIMES (May 7, 2018), https://www.nytimes.com/2018/05/07/health/death-penalty-nitrogen-executions.html
[https://perma.cc/6F73-MGFY] (identifying states with nitrogen hypoxia executions); Authorized Methods by
State, supra note 10 (listing method of execution statutes for Alabama, Mississippi, and Oklahoma).
86. See MELTSNER, supra note 40, at 182-85 (summarizing arguments for Furman case); GARLAND, supra
note 39, at 185, 218-21 (describing Furman legal strategy).
87. See GARLAND, supra note 39, at 184-85 (outlining difference between United States and western coun-
tries’ political structure).
88. See Gregg v. Georgia, 428 U.S. 153, 169 (1976) (holding death penalty not per se unconstitutional);
see also Kennedy v. Louisiana, 554 U.S. 407, 446 (2008) (holding death penalty unconstitutional punishment for
rape of child); Roper v. Simmons, 543 U.S. 551, 578 (2005) (holding death penalty unconstitutional punishment
for juvenile offenders); Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding death penalty unconstitutional
punishment for mentally-disabled offenders); Coker v. Georgia, 433 U.S. 584, 600 (1977) (holding death penalty
unconstitutional punishment for rape conviction without death of victim).
89. See Bucklew v. Precythe, 139 S. Ct. 1112, 1122 (2019) (reaffirming constitutionality of death penalty).410 SUFFOLK UNIVERSITY LAW REVIEW [Vol. LIII:397
the death penalty.90 In method-of-execution claims, the Court mandates an in-
mate meet specific procedural requirements when seeking an alternative method
of execution.91 Because these requirements are procedural, a court may dismiss
an action without considering whether the imposed sentence is cruel and unu-
sual.92 Bucklew’s request for an alternative method of execution was denied
because he failed to provide a known and available alternative method.93
Providing a known, available alternative method of execution, as required,
effectively ensures that all method-of-execution claims end in death because the
execution will move forward either through the state’s default method or the in-
dividual’s requested alternative.94 The requirement now applies even in cases
where an individual claims that the state’s standard method of execution would
cause great pain to them alone.95 Although Justice Kavanaugh confirmed that
the proposed alternative method need not be authorized by the state to be con-
sidered a known, available alternative, individuals seeking an alternative method
of execution need insight into states’ execution systems to properly meet the pro-
cedural requirements for a method-of-execution claim.96 With states increasing
secrecy regarding execution practices, the requirement of naming an available
alternative has become more onerous than when the Court first imposed the pro-
cedure. 97 The majority in Bucklew noted that specific questions about the pro-
posed alternative method were left unanswered, demonstrating the precision re-
quired and information needed to successfully describe the alternative method
proposed to the Court.98
90. See Glossip v. Gross, 576 U.S. 863, 879 (2015) (adopting procedure of Baze for method-of-execution
claims).
91. See id. (outlining procedure of method-of-execution claims); Baze v. Rees, 553 U.S. 35, 52, 61 (2008)
(plurality opinion) (outlining requirements for alternative method-of-execution claims).
92. See Bucklew, 139 S. Ct. at 1133 (affirming summary judgment based on lack of evidence supporting
procedural requirement).
93. See id. at 1130 (explaining Bucklew’s claim failed for lack of alternative method).
94. See id. at 1126 (denoting method-of-execution claims “necessarily comparative”); Hill v. McDonough,
547 U.S. 573, 580-81 (2006) (describing implications of Hill’s action and court’s injunction).
95. See Bucklew v. Precythe, 139 S. Ct. 1112, 1126-27 (2019) (describing Bucklew’s argument insufficient
for different standard applied to individual over facial claims).
96. See Bucklew, 139 S. Ct. at 1136 (Kavanaugh, J., concurring) (reinforcing state authorization of alter-
native method not required); id. at 1129 (majority opinion) (describing necessary information needed for nitrogen
hypoxia execution).
97. See KONRAD, supra note 66, at 14-18 (describing states’ movement toward secret execution methods).
In 2008, in Baze, the Court initially outlined the requirements for an alternative method-of-execution claim. See
Baze v. Rees, 553 U.S. 35, 52 (2008) (plurality opinion) (describing alternative-method claim requirements).
Since 2011, thirteen states enacted secrecy laws that withhold information regarding executions from the public,
and at least eight states invoked existing protocols to withhold information regarding executions. See KONRAD,
supra note 66, at 14.
98. See Bucklew, 139 S. Ct. at 1129 (listing specific questions regarding nitrogen hypoxia).You can also read
