Execution Watch: Russell Earl Bucklew

A few states have executed people this year* and Missouri is next up with someone the subject of an emotional laden Supreme Court case.  Stolen Seat Guy Gorsuch wrote the message laden "enough with this shit" opinion while the strong dissents argued the other five was gratuitously leaving open the possibility the state would in effect torture someone with a medical condition that made usual procedures dangerous.  The majority in effect called into question recent more liberal minded Eighth Amendment precedents as a whole to uncertain effect. Thus, there is a possible broader reach as I noted at the time.  A telling bit: the case was only taken because Justice Kennedy was the fifth vote to grant a stay.

[Another wider summary of difficulties with executions in recent years that you wouldn't know from the set of Roberts Court "lethal injection cocktail" opinions that not once found a problem.   It is left to lower courts to try to find means to address various problems regarding a repeatedly ad hoc execution process that very well appears to have due process difficulties.]

Justice Sotomayor repeatedly wrote opinions (including dissents from orders denying relief) regarding the risks of lethal injection drugs. Breyer and RBG (who less often speaks on her own here) are on record questioning the basic constitutionality of the death penalty. But, the policy now is not the Brennan/Marshall boilerplate comment in each case that the penalty is unconstitutional. It is to flag specific problems though Sotomayor  specifically has shown a singular willingness to serve "witness" in execution cases as noted in a recent article:

“She recognizes the institutional limits of the court in correcting every injustice or every misreading of federal law, yet she wants to communicate the wrongness of those injustices and misreadings despite the court’s inability to intervene,” Professor Steiker said. “Justice Sotomayor is speaking to institutional actors — judges, prosecutors, defense lawyers — to make clear that the court, or least some portion of it, is keenly aware of problems that it is not presently able to correct.

[Compound pharmacies also factor into the whole lethal injection drugs issue and John Oliver dealt with them last night, if not in this context specifically.]

The posts this year regarding specific executions scheduled (not all of which have occurred) have taken care to spell out specifics and will do that here.  Russell Earl Bucklew (born 16 May 1968) was convicted by a Missouri jury of the March 1996 Cape Girardeau County murder of Michael Sanders, with whom his former girlfriend took shelter after the breakup of their relationship, as well as the kidnapping and rape of said girlfriend, Stephanie Ray.  [Wikipedia summary]  Those wishing for more details of the crime (perhaps to complain those who do not wish him to die or are concerned about how) can be found here.  The link also helpfully lists the alleged procedural due process problems with his execution:

1. counsel was ineffective for failing to call clinical psychologist during guilt phase
2. challenging admission of prior bad acts evidence of petitioner's assault against victim was cognizable on habeas review
3. counsel's decision during sentencing phase of capital murder trial not to call clinical psychologist was reasonable trial strategy
4. counsel was ineffective for failing to call five friends and family members to testify about petitioner's character during sentencing phase
5. counsel's failure investigate and present expert security testimony during sentencing phase of capital murder trial deprived petitioner of effective assistance of counsel
6. prosecutor's improper comments (providing opinion that crime deserved death penalty)

The conviction was over twenty years ago, so we are in the "too long on death row" concern that was a problem in various cases.  Again, Justice Breyer has long been a person concerned with that issue.   And, again, we have the concern that his medical condition will make the risk of illicit pain (again, the test is not "no suffering" here) if lethal injection is used. Overall, we have a horrible crime (or set of crimes) that warrants punishment and isolation of the offender but not execution.  Like all the rest.

It appears that there were no more appeals in the courts with no last minute Supreme Court order. Just a failed appeal for clemency. Had a curious lead-up to the execution via a live feed in a parking lot with a lot of news chatter while the on the scene reporter waited for an official announcement.  One witness to the execution told the reporter that it went without difficulty.  Maybe, it did -- don't know -- but even if it did, a serious possibility of problems can be enough to stop an execution.  Also, there were problems in past cases.  A voluntary usage of nitrogen gas also would be somewhat useful if one supports the death penalty.  OTOH, there is the fear that if you gave in, he would just game the system some more for some other reason.

The concern for harm here was not just made up -- there was sworn testimony that there was serious risk involved and more could have been given.  And, citing his own crimes only takes us so far -- the state is restrained by the Eighth Amendment and it is not based on "eye for an eye" standards either.  The problems of the death penalty make the risks, even those that might not come to pass, not worth the candle.

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* Texas (7), Alabama (3), Florida, Georgia and Tennessee (two a piece).  South Dakota and the federal government might later.