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Rancor and Raw Emotion Surface in Supreme Court Death Penalty Ruling

Category: Political News,Politics

WASHINGTON — In a 5-to-4 decision that revealed fault lines and considerable friction over the use of the death penalty, the Supreme Court on Monday ruled that a death row inmate in Missouri may be executed by lethal injection notwithstanding a rare medical condition that he says will cause excruciating pain. The majority accused the inmate of gamesmanship and delay.

The decision made clear that feelings are still raw at the court over its 5-to-4 decision in February to allow the execution of a Muslim inmate in Alabama after his request to have his imam be present was denied, with the majority saying he should have asked sooner. Last week, the court stayed the execution of a Buddhist inmate in Texas in similar circumstances, over two noted dissents, with the majority apparently satisfied that the request had been timely.

On Monday, Justice Neil M. Gorsuch, writing for the majority, said the Missouri inmate, Russell Bucklew, had waited too long to object to the way the state planned to execute him. “Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay,” Justice Gorsuch wrote.

He added that the dissenting justices were “seeking to relitigate” the February decision concerning the Muslim inmate in Alabama.

In dissent, Justice Stephen G. Breyer set out what he said was the larger dispute, stemming from the Alabama case and carrying into the one decided Monday.

“The prisoner’s claim — that prisoners of some faiths were entitled to have a minister present at their executions while prisoners of other faiths were not — raised a serious constitutional question,” Justice Breyer wrote. “And therein lies the problem. It might be possible to end delays by limiting constitutional protections for prisoners on death row. But to do so would require us to pay too high a constitutional price.”

Mr. Bucklew, the Missouri inmate, was convicted of murdering a man who had been seeing his former girlfriend, and of kidnapping and raping her. His lawyers said his condition, cavernous hemangioma, would make him choke on his own blood during his execution.

Justice Gorsuch wrote that the Constitution authorizes capital punishment and that states must be able to use it without undue delays. He added that the Eighth Amendment’s prohibition of cruel and unusual punishment bars only needless pain.

“The Eighth Amendment does not guarantee a prisoner a painless death — something that, of course, isn’t guaranteed to many people, including most victims of capital crimes,” he wrote.

Justice Gorsuch wrote that Mr. Bucklew was required to propose a less painful method of execution but had failed to do so. He added that inmates litigating in good faith should be able to overcome that requirement.

“We see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative — assuming, of course, that the inmate is more interested in avoiding unnecessary pain than in delaying his execution,” Justice Gorsuch wrote.

Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr. and Brett M. Kavanaugh joined the majority opinion.

Last year, five justices voted to stay Mr. Bucklew’s execution, with Justice Anthony M. Kennedy joining the four more liberal justices to form a majority. Justice Kennedy retired last summer, and Monday’s decision suggested that his replacement by Justice Kavanaugh will harden divisions on the court over capital punishment.

Earlier Supreme Court decisions have required inmates challenging lethal injection protocols to identify available and preferable methods of execution.

“A prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the state has refused to adopt without a legitimate penological reason,” Justice Gorsuch wrote, summarizing the earlier decisions.

Mr. Bucklew argued that the requirement should not apply to people with rare medical conditions, but he did propose that nitrogen gas would be preferable.

Justice Gorsuch rejected that alternative. Nitrogen gas, he wrote, is not authorized by Missouri law and had never been used to carry out an execution in the United States. In dissent, Justice Breyer said that three states have authorized the use of nitrogen gas in executions.

Justice Gorsuch wrote that Mr. Bucklew had also not proved he would suffer less pain from nitrogen gas.

In a concurring opinion, Justice Thomas wrote that the court had made things too complicated. The Eighth Amendment bars only the deliberate infliction of pain, he wrote, and there was no evidence that Missouri had designed its lethal injection protocol to hurt Mr. Bucklew.

In dissent, Justice Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, wrote that Mr. Bucklew may face an “excruciating and grotesque” punishment.

“Bucklew cites evidence,” Justice Breyer wrote, “that executing him by lethal injection will cause the tumors that grow in his throat to rupture during his execution, causing him to sputter, choke and suffocate on his own blood for up to several minutes before he dies.”

In a separate dissent, Justice Sonia Sotomayor criticized the majority’s emphasis on addressing delays in carrying out death sentences.

“There are higher values than ensuring that executions run on time,” she wrote. “If a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.”

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