Clayton Lockett's botched execution in April may have left a sour aftertaste about the increasingly shady business of executing criminals in America, but it's not clear that it has changed any part of the process. Today, in the case of Russell Bucklew, the Supreme Court is taking another look at the messy circumstances of capital punishment.
Bucklew's death warrant from the State of Missouri calls for him to be put to death by the end of today. The run-up to the scheduled execution has been full of last-minute wrangling. In the space of 48 hours, (a) the federal district court in Missouri denied a stay, (b) an 8th Circuit panel granted it 2-1, and then (c) the full bench of the 8th Circuit lifted it again.
To keep things exciting, Justice Alito granted a near-literal eleventh-hour stay at almost midnight last night, to keep Bucklew alive while the Supreme Court considered his case. Experts like the Atlantic's Andrew Cohen say they expect the Court to split 5-4 when it decides whether or not it will issue a further stay pending a full hearing.
Bucklew's guilt — his crimes included murder, kidnapping, and rape — is not in question. Instead, the Court is considering whether or not Missouri can execute him if the state knows full well that he might suffer extreme pain in the process.
The medical evidence is straightforward: Bucklew has tumors that are blocking his airway and making his vessels weak. If you touch his airway, it bleeds. That means, as a doctor who examined Bucklew last week put it in his affidavit, that during the execution Bucklew might suffer "hemorrhaging, suffocation, or... excruciating pain." Bucklew's lawyers say that if this does not excuse him from execution altogether, it does mean that Missouri has an obligation to run further tests to assure the execution does not run afoul of constitutional standards.
Missouri has offered no medical evidence to rebut Bucklew's doctor. Throughout these last few days of argument, in fact, the state hasn't been much interested in tests, precision, or medicine. Their brief is littered instead with complaints about how late Bucklew's lawyers filed his motion, and argue that if he doesn't like this method of execution, he has an obligation to suggest another. Bucklew's lawyers counter in a reply brief submitted to the court that they didn't file earlier because Missouri kept blocking requests for funding for a medical expert, dating back to 2008, and point out that there is no real precedent for requiring him to suggest an alternative.
The issue is much clearer in the formulation of one 8th Circuit judge who granted that stay briefly yesterday:
Bucklew's unrebutted medical evidence demonstrates the requisite sufficient likelihood of unnecessary pain and suffering beyond the constitutionally permissible amount inherent in all executions.
When the stay this judge granted was lifted by the 8th Circuit as a whole, it was without an opinion stating how or why this finding was wrong.
All this practical chaos should be depressing to either side of the death penalty debate.
In the weeks since Lockett's execution, more than a few people, online and offline, have argued that they did not think his execution was botched. The reasoning is always the same, most pithily expressed to me by a friend over drinks: "The guy died, anyway." Getting an execution "right," though, isn't simply about managing to kill a person. It's about doing it according to the standards set down in the Constitution—about doing it, if we must do it, with minimal cruelty, according to the rule of law.
Lately, those standards seem to be in chaos. This is especially true in Missouri, where it's playing out not just in the state's complete disregard for medical evidence, but also as a power struggle between courts and politicians. As Cohen pointed out on Twitter last night, Missouri is the kind of state that, if the Supreme Court doesn't issue an explicit stay, will go ahead and execute a criminal while an appeal is still pending. They did it just this past January. If there's any clearer statement of states getting testily opposed to bare due process for death row inmates, I'm not sure what it is.
Unless, of course, it is Oklahoma's politicians threatening judges with impeachment in the run-up to the Lockett execution last month.
Bucklew's case is very particular to him, and no matter what the Supreme Court rules today, it's unlikely to set a wide precedent. But it will give us a sense for whether the Court is finding the increasingly farcical, chaotic state of affairs as depressing as the rest of us. If they rule that Missouri can go ahead and execute Bucklew, in other words, it'll look a hell of a lot like an endorsement of the status quo.
[Photo via AP, of a protest against Bucklew's scheduled execution yesterday.]
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