Amicus Curiae Brief — Bucklew v. Precythe, 139 S. Ct. 306 (2018) (No. 17-8151)
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No. 17-8151
IN THE
Supreme Court of the United States
—-_ =
RUSSELL BUCKLEW,
— Petitioner,
ANNE PRECYTHE, et al.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT
BRIEF OF AMICI CURIAE THE AMERICAN CIVIL
LIBERTIES UNION AND THE ACLU OF MISSOURI,
IN SUPPORT OF PETITIONER
David D. Cole Cassandra Stubbs
Amanda W. Shanor Counsel of Record
AMERICAN CIVIL LIBERTIES Olivia Ensign
UNION FOUNDATION AMERICAN CIVIL LIBERTIES
915 15th Street, NW UNION FOUNDATION
Washington, D.C. 20005 201 W. Main Street, Suite 402
Steven Watt Durham, NC 27701
AMERICAN CIVIL LIBERTIES (919) 682-5659
UNION FOUNDATION cstubbs@aclu.org
125 Broad Street, 18th Floor Anthony E. Rothert
New York, NY 10004 Gillian Wilcox
Jessie Steffan
AMERICAN CIVIL LIBERTIES
UNION OF MISSOURI
FOUNDATION
906 Olive Street, Suite 1130
St. Louis, MO 63101
Counsel for Amici Curiae
April 6, 2018
TABLE OF CONTENTS
TABLE OF AUTHORITIES. ......................-..
SUMMARY OF ARGUMENT.......................
OO, 8, ae
THE COURT SHOULD GRANT
CERTIORARI TO CLARIFY THAT
PRISONERS RAISING AS-APPLIED
CHALLENGES TO THE METHOD OF
AN EXECUTION BASED ON THEIR
UNIQUE MEDICAL CONDITIONS
NEED NOT DEMONSTRATE A
READILY AVAILABLE ALTERNA-
TIVE METHOD OF EXECUTION......
THE COURT SHOULD GRANT
CERTIORARI TO ADDRESS
CONFUSION IN THE LOWER
COURTS REGARDING THE
PROCEDURES GOVERNING AS-
APPLIED CHALLENGES TO THE
METHOD OF EXECUTION ...............
IED cnecenscncnitastersencsssnesccsonettenencees
APPENDIX:
INTER-AMERICAN COMMISSION ON
HUMAN RIGHTS, REPORT NO. 28/18,
CASE 12,958, REPORT ON MERITS,
RUSSELL BUCKLEW, UNITED STATES
GERI BE, Bp peccccccsccssccescccsccsscssecsnces
13
20
la
ss
TABLE OF AUTHORITIES
PAGE(S)
Cases
Bucklew v. Precythe,
883 F.3d 1087 (8th Cir. 2018)................. 10, 11
Campbell v. Jenkins,
138 8S. Ct. 466 (2017) .............................. 7
In re Campbell,
874 F.3d 454 (6th Cir. 2017)..........0.0...... 7,8,9
Estelle v. Gamble,
TTL ALA ATT 10
Glossip v. Gross,
135 S. Ct. 2726 (2015) ...................... 3, 4,9, 10
Hall v. Florida,
134 S. Ct. 1986 (2014) ............................ 13
Hamm v. Comm’r, Ala. Dep’t of Corr.,
No. 18-10636, 2018 WL 1020051
gS 15, 16
Hamm v. Dunn,
eee 14, 16
Hamm v. Dunn,
No. 2:17-cv-02083, 2018 WL 723104
8 SS ee eee 14, 15
In re Kemmler,
136 U.S. 496 (1800) ................................ 10
Moore v. Texas,
137 S. Ce. 168 CBO17) .......2..cccccecce-ce0e--. 5
Rhodes v. Chapman,
462 U.S. 337 (1961) ............................... 10
ili
PAGE(S)
Roper v. Simmons,
I I i atic 11, 12
Trop v. Dulles,
EI 11
Weems v. United States,
ER eee 10
Wilkerson v. Utah,
STII: MP UII «sss cenictnetncnaneaneasoenion 10
Statutes
ES Ee a eee x
Constitutional Provisions
The Eighth Amendment ............................ passim
Other Authorities
Columbia Law School Media Advisory,
Bernard Harcourt and the State of
Alabama Settle Civil Rights and Habeas
Corpus Lawsuits (March 27, 2018),
http://www.law.columbia.edu/news/
2018/03/bernard-harcourt-and-state-
alabama-settle-civil-rights-and-habeas-
ED dcestccensteincommmtenmiscssentesess: 17
Tracy Connor, Lawyer describes aborted
execution attempt for Doyle Lee Hamm
as ‘Torture’, NBC News (Feb. 25, 2018),
https://www.nbcnews.com/storyline/
lethal-injection/ lawyer-calls-aborted-
execution-attempt-doyle-lee-hamm-
I nncincenddnstecbsessisbintagacnieics 17
iv
PAGE(S)
Tracy Connor, Ohio cancels execution of
Alva Campbell after failing to find vein,
NBC News (Nov. 15, 2017), https://www.
nbcnews.com/storyline/lethal-injection/
ohio-set-execute-inmate-alva-campbell-
who-needs-wedge-pillow-n820956 ........... 7
Decision and Order Denying Motion to
Certify for Interlocutory Appeal,
In re Ohio Execution Protocol Litigs.,
No. 2:11-cv-1016
(S.D. Ohio Nov. 7, 2017) .......................-. 8
Inter-American Commission on Human
Rights, Report No. 28/18, Case No. 12,958,
Report on Merits, Russell Bucklew,
United States (March 18, 2018)........ 11, 12, 18
Sandee LaMotte, Death row inmate sues
after ‘botched’ execution, CNN
(March 7, 2018), https://www.cnn.com/
2018/03/07/health/alabama-execution-
lawsuit/index.html............................0..0.. 16, 17
Motion for Stay, Campbell v. Ohio,
No. 17-3855 (6th Cir. Nov. 8, 2017) ........ 6
Petition for Writ of Certiorari,
Campbell v. Jenkins, 138 S. Ct. 466
(2017) (No. 17-6688) ...........................0.-. 6
Petition for Writ of Certiorari,
Hamm v. Dunn, 138 S. Ct. 828
RR 15, 16
PAGE(S)
Liliana Segura, Another Failed Execution:
the Torture of Doyle Lee Hamm,
Intercept (March 3, 2018), https://the
intercept.com/2018/03/03/doyle-hamm-
alabama-execution-lethal-injection/........ 17
Marty Schladen, After four unsuccessful
needle pokes, Columbus killer’s execution
called off, Columbus Dispatch
RS ERE eee 7
Liam Stack, Execution in Ohio is Halted
After No Usable Vein Can Be Found,
N.Y. Times (Nov. 15, 2017),
https://www.nytimes.com/2017/11/15/
us/ohio-execution-alva-campbell htm] .... 7
Holly Zachariah, Ohio Death Row Inmate
Campbell Dies of Natural Causes,
Columbus Dispatch (March 3, 2018),
http://www.dispatch.com/news/20 180303/
ohio-death-row-inmate-alva-campbell-
dies-of-natural-causes. ........................... 8
1
INTEREST OF AMICI!
The American Civil Liberties Union (ACLU) is a
nationwide, nonprofit, nonpartisan organization of
approximately 1.6 million members dedicated to the
principles of liberty and equality embedded in the
United States Constitution. Founded nearly a
century ago, the ACLU has appeared in myriad cases
before this Court, both as merits counsel and as
amicus curiae, to defend the Bill of Rights. The ACLU
has often appeared in this Court to address those
portions of the Bill of Rights having to do with
administration of the criminal justice system. The
organization has a strong interest in ensuring that
capital punishment protocols practiced in the United
States do not violate the Eighth Amendment. And it
has a particular interest in this case because it
represents Petitioner Russell Bucklew before the
Inter-American Commission on Human Rights,
where he has argued, successfully, that proceeding
with his execution under the circumstances unique to
his case would violate the prohibition on cruel and
inhuman punishment and could amount to torture.
The ACLU of Missouri is one of the ACLU’s
statewide affiliates and has more than 19,000
members. The ACLU of Missouri provided direct
representation in numerous state and federal cases
challenging secrecy about the administration of the
death penalty.
' No counsel for a party authored this brief in whole or in
part, and no person or entity, other than amici curiae, their
members, and their counsel, made a monetary contribution t
the preparation or submission of this brief. The parties have
consented to the filing of this brief and their indications of
consent have been filed with the Clerk.
2
SUMMARY OF ARGUMENT
This case raises critically important questions
about how the courts should adjudicate claims that a
method of execution, even if generally constitutional,
is unconstitutional as applied to a particular prisoner
because of his idiosyncratic medical condition.
Petitioner Russell Bucklew suffers from a rare
medical disease, cavernous hemangioma, which poses
a unique threat of excruciating pain during execution
by lethal injection, the method Missouri has chosen to
kill him. As a result of his medical condition, he is
likely to choke on his own blood and suffocate for up
to four minutes during his execution.
The court of appeals declined relief to Mr. Bucklew
because it found that he was unable to identify an
alternative method of execution that would cause less
suffering to an individual with his medical condition.
And in so concluding, it approved special procedural
obstacles, applicable only to this case, which made it
virtually impossible for him to meet the burden the
courts imposed on him. Petitioner seeks certiorari to
challenge both the requirement that a prisoner
advancing an individualized as-applied challenge to a
method of execution bears the burden of identifying
an available alternative and the special procedural
obstacles imposed on him.
This is not the first time such questions have been
presented to this Court. In two prior cases, involving
Alva Campbell and Doyle Hamm, respectively, this
Court declined review of similar issues presented by
death row inmates with idiosyncratic medical
conditions. Both Mr. Campbell and Mr. Hamm
maintained that their medical conditions created a
substantial risk that their executions would be cruel
and unusual. In both cases, this Court denied
3
applications for stays and petitions for certiorari. The
states attempted to carry out the executions, and in
both cases what the inmates feared came to pass.
Both Mr. Campbell and Mr. Hamm were subjected to
botched executions that had to be halted—but not
before inflicting horrific and needless suffering.
Neither man was ultimately executed, but both
suffered unconstitutionally cruel and unusual
punishment because of the complications created by
their medical conditions. By granting review here and
resolving confusion in the lower courts about how
Glossip v. Gross, 135 S. Ct. 2726 (2015), governs
individualized as-applied challenges, the Court has
the opportunity—and _ responsibility—to avert
another botched execution. The Court should grant
certiorari to address the unfortunately recurring
question of how courts should assess claims that
otherwise permissible methods of execution, when
applied to prisoners with particular compromised
health conditions, will cause needless pain and
sullering, violating the Eighth Amendment. The
courts below erected insurmountable hurdles to
adjudicating such claims fairly. Only this Court can
ensure that Mr. Bucklew avoids the unconstitutional
experience that Mr. Campbell and Mr. Hamm were
made to suffer.
4
ARGUMENT
1. THE COURT SHOULD GRANT CERTIORARI
TO CLARIFY THAT PRISONERS RAISING
AS-APPLIED CHALLENGES TO THE METH-
OD OF AN EXECUTION BASED ON THEIR
UNIQUE MEDICAL CONDITIONS NEED
NOT DEMONSTRATE A READILY AVAIL-
ABLE ALTERNATIVE METHOD OF EXE-
CUTION.
In Glossip v. Gross, this Court held that prisoners
challenging a method of execution as a violation of
the Eighth Amendment on its face must demonstrate
that the method poses a “risk of severe pain” that is
“substantial when compared to the known and
available alternatives.” 135 S. Ct. at 2737. The
requirement that prisoners plead and prove a known
and available alternative method of execution was
imposed to ensure that such a challenge not become a
sub rosa challenge to the death penalty as such. The
Court reasonei that, “because it is settled that
capital punishment is constitutional, ‘[i]t necessarily
follows that there must be a [constitutional] means of
carrying it out.” /d. at 2732 (quoting Baze v. Rees, 553
U.S. 35, 47 (2008)). If the only method of execution
available to a State is deemed unconstitutional, the
decision would have the practical effect of precluding
any executions in that State. Accordingly, to avoid
that outcome, the Court required a showing of an
alternative method of execution.
The central questions in this case concern whether
that requirement of establishing an available
alternative should apply to an individual who does
not challenge a method of execution in general, but
only as applied to his particular circumstances, and
how the courts should adjudicate and assess such
5
challenges as a procedural matter. Similar questions
were presented to this Court before, and both times
the Court denied review, with deeply unfortunate
consequences. Those experiences should guide the
Court in its assessment of whether to grant review
this time. The Court has the opportunity to avert
another terribly botched execution. As the last court
that stands between Mr. Bucklew and a cruel and
unusual execution, the Court should take up the
questions and resolve them now.
There is good reason not to require individuals in
Mr. Bucklew’s condition to identify an alternative
method of execution. A holding that lethal injection is
unconstitutional as applied to Mr. Bucklew because
of his rare medical condition does not risk
invalidating the death penalty altogether. It affects
only a single execution. Like this Court’s holdings
that it is unconstitutional to execute individuals with
intellectual disabilities, see, e.g., Moore v. Texas, 137
S. Ct. 1039, 1048 (2017), a ruling sparing Mr.
Bucklew from the death penalty will not render that
penalty unavailable as to anyone else. Accordingly, if
he shows that Missouri’s lethal injection regime as
applied to him will cause suffering that renders its
application cruel and unusual, the Eighth
Amendment should bar his execution unless prison
officials identify another method that will not cause
an unconstitutional degree of suffering.
In addition, where an individual has demonstrated
that a method of execution, as applied to his unique
medical condition, will inflict an unacceptable level of
pain, the burden should shift to the State, both
because it is its obligation to conduct an execution
without an unconstitutionally unacceptable level of
pain and suffering, and because it alone is likely to
have the knowledge and experience with alternative
6
methods of execution to inform the question whether
acceptable alternatives exist that would end the
prisoner's life without inflicting unconstitutional pain
and suffering. A death row prisoner is nut in a
position to assess how alternative methods of
execution would interact with his particular medical
conditions. Thus, in individualized as-applied
challenges, the burden should shift to the State once
a prisoner demonstrates that the proposed method of
execution poses a constitutionally unacceptable risk
of inflicting cruel and unusual punishment.
Alva Campbell objected to his method of execution
on grounds similar to Mr. Bucklews challenge.
Petition for Writ of Certiorari, Campbell v. Jenkins,
138 S. Ct. 466 (2017) (mem.) (No. 17-6688). At the
time of Ohio’s attempt to execute him, Mr. Campbell,
69 years old, had compromised veins, and was
terminally ill with cancer, severe chronic obstructive
pulmonary disease, and end stage emphysema,
requiring four breathing treatments every day.
Motion for Stay at 17-18, Campbell v. Ohio, No.
17-3855 (6th Cir. Nov. 8, 2017). He maintained that
his deteriorating medical condition posed a
substantial likelihood that he would suffer obstructed
breathing and “air hunger” during the lethal injection
procedure. Jd. He further alleged that the prison’s
doctors anticipated it would be perilous and difficult
to insert an IV given the quality of his veins, and
contemplated using a tourniquet to attempt to
establish IV access. Jd. at 1, 10. He contended that
given his medical condition, lethal! injection would
subject him to severe, needless pain and suffering, in
violation of the Eighth Amendment. /d. at 10.
7
This Court denied Mr. Campbell’s request for a
stay and certiorari. Campbell, 138 S. Ct. 466.2 Ohio
proceeded with its execution attempt on the morning
of November 15, 2017. The execution team examined
Mr. Campbell’s arms and legs for an hour before
transporting him to the execution chamber in a
wheelchair. Marty Schladen, After four unsuccessful
needle pokes, Columbus killer’s execution called off,
Columbus Dispatch (Nov. 15, 2017). The execution
team had to help Mr. Campbell onto the gurney. /d.
They used an ultraviolet light for the next half hour
in search of a vein through which to inject the drugs
that would kill him, stabbing Mr. Campbell
repeatedly in his arms and leg. After they stabbed his
leg, Mr. Campbell threw back his head and cried out
in pain. /d. “The executioners tried to comfort Mr.
Campbell as they searched for a way to execute him,
the A.P. said, by patting him on the arm and the
shoulder.” Liam Stack, Execution in Ohio is Halted
After No Usable Vein Can Be Found, N.Y. Times
(Nov. 15, 2017), https://www.nytimes.com/2017/11/15/
us/ohio-execution-alva-campbell. html. The prison
called off the execution after concluding they could
not find an injection site. Tracy Connor, Ohio cancels
execution of Alva Campbell after failing to find vein,
NBC News (Nov. 15, 2017), https://www.nbcnews.com
/storyline/lethal-injection/ohio-set-execute-inmate-
alva-campbell-who-needs-wedge-pillow-n820956. Mr.
Campbell died of natural causes in his cell
2 The petition in this Court was limited to a question
regarding successive petitions, but the Sixth Circuit deemed Mr.
Campbell's challenge a successive petition after rejecting his
contention that an as-applied challenge based on an individual's
particular medical condition should be treated like a Ford-
competency claim that is not ripe until an execution date is set.
In re Campbell, 874 F.3d 454, 466 (6th Cir. 2017).
8
approximately three months later. Holly Zachariah,
Ohio Death Row Inmate Campbell Dies of Natural
Causes, Columbus Dispatch (March 3, 2018),
http://www.dispatch.com/news/20 180303/ohio-death-
row-inmate-alva-campbell-dies-of-natural-causes.
The botched execution in Alva Campbell's case was
a direct result of the Sixth Circuit’s ruling that Mr.
Campbell had to plead a statutorily authorized
alternative method of execution in order to proceed
with his as-applied challenge to the execution
protocol. In re Campbell, 874 F.3d at 461-62.5 The
Sixth Circuit acknowledged that his alleged medical
claims, “if substantiated, could raise a significant
problem with administering a lethal injection,” but
concluded that Mr. Campbell’s claims failed as a
matter of law because he had not identified an
alternative means of execution. /d. at 465. When this
Court denied a stay and certiorari, the execution
went forward, with disastrous consequences—largely
as predicted by Mr. Campbell. The ordeal that Ohio
put Mr. Campbell through was plainly cruel and
unusual, regardless of whether another procedure
might have avoided such suffering.
As Judge Moore, dissenting in /n re Campbell,
explained, the rationale for imposing the “alternative
3 Mr. Campbell had filed both a § 1983 challenge to his
execution and a habeas petition alleging that he was
categorically exempt from the death penalty, both predicated on
his individual medical condition. In the § 1983 suit, Mr.
Campbell had attempted to plead that the firing squad was a
superior alternative method of execution, but the federal court
rejected his amendment on the ground that the firing squad was
not authorized by Ohio law. Decision and Order Denying Motion
to Certify for Interlocutory Appeal at 2-3, In re Ohio Execution
Protocol Litigs., No. 2:11-cv-1016 (8.D. Ohio Nov. 7, 2017), ECF
No. 1366.
9
method” requirement is inapposite where, as here, an
individual does not challenge the planned method of
execution as a general matter, but only because of
complications arising from his unique medical
condition:
Were Campbell simply challenging Ohio's
generalized use of a particular execution
protocol ... | agree with the majority that
Glossip v. Gross, 135 S. Ct. 2726, 2739
(2015), would foreclose his claim. Such a
ruling would be tantamount to declaring the
death penalty as a whole unconstitutional in
a given state. ... | see an important
distinction between Glossip and Campbell’s
case, however, in the fact that while Glossip
featured an across-the-board challenge to the
only approved methods of execution in
Oklahoma, this case concerns only whether
the fact of Campbell’s sentence itself is
constitutional in light of Campbell’s personal
biological characteristics and the currently
available means of execution.
In re Campbell, 874 F.3d at 468 (Moore, J.,
dissenting). As Judge Moore notes, this Court made
clear in Glossip that its rule was driven by concern
that a decision upholding a generalized challenge to a
method of execution without an available alternative
would mean the end of the death penalty in that
state. See generally, Pet. 30-32; Glossip, 135 S. Ct. at
2732-33. Where that is not a concern, the alternative
method requirement should not apply.
In this case, as in Mr. Campbell’s, the court of
appeals relied on Glossip to deny Mr. Bucklew relief
because he had not sufficiently alleged and
established an alternative method of execution that
10
would cause less pain. Bucklew v. Precythe, 883 F.3d
1087, 1091 (8th Cir. 2018). Unlike Glossip, however,
which involved an across-the-board challenge to an
execution protocol, Mr. Bucklew’s as-applied chal-
lenge rests on his idiosyncratic medical vulnerability,
and therefore ruling in his favor is not tantamount to
invalidating the death penalty. As a result, he should
not be required to demonstrate an alternative method
of execution to prevail on his Eighth Amendment
claim.
For more than one hundred years, this Court has
recognized that the death penalty cannot be imposed
in a manner that will “involve torture” or be
“inhuman and barbarous—something more than the
mere extinguishment of life.” In re Kemmler, 136 U.S.
436, 447 (1890); see also Wilkerson v. Utah, 99 US.
130, 135-36 (1878); Weems v. United States, 217 U.S.
349, 368 (1910); Estelle v. Gamble, 429 U.S. 97, 102
(1976); Rhodes v. Chapman, 452 U.S. 337, 345-46
(1981); see also Glossip, 135 S. Ct. at 2747 (Scalia, J.,
concurring) (stating that Eighth Amendment bars
“added terror, pain, or disgrace to an otherwise
permissible capital sentence” (internal quotation
marks and citation omitted)). An otherwise permis-
sible execution protocol that inflicts added terror,
pain, and torture because of the prisoner's unique
medical condition violates the Eighth Amendment.
The Eighth Circuit accepted as undisputed for
purposes of summary judgment that Mr. Bucklew is
likely to experience extreme pain and suffocation
during the lethal injection procedure. Bucklew, 883
F.3d at 1094. It is also conceded that execution by
lethal gas is a feasible and available alternative. /d.
The Eighth Circuit declined to issue a stay of
execution, however, concluding that there was
insufficient evidence that lethal gas would
1!
substantially reduce the risk of pain and suffocation
for Mr. Bucklew. /d. at 1096. But in an individualized
as-applied challenge that does not threaten to
invalidate the death penalty as such, this should not
matter. If lethal injection will cause excessive pain
and suffering to Mr. Bucklew because of his rare
medical condition, it is unconstitutional to subject
him to it regardless of how lethal gas—or any other
procedure—might work. Indeed, if both methods
available to the State would cause excessively
excruciating pain and suffering, then both methods
would be unconstitutionally cruel and unusual. A
prisoner in Mr. Bucklew’s shoes should not have to
identify an alternative procedure; rather, that should
be the State’s burden if it seeks to execute him but
has not yet proposed a way to do so without
excruciating pain.
This conclusion is supported by international
human rights standards, which inform Eighth
Amendment jurisprudence. “[A]jt least from the time
of the Court’s decision in Trop| v. Dulles, 356 U.S. 86
(1958)], the Court has referred to the laws of other
countries and to international authorities as
instructive for its interpretation of the Eighth
Amendment's prohibition of ‘cruel and unusual
punishments.” Roper v. Simmons, 543 U.S. 551, 575
(2005). Mr. Bucklew has brought his case to the
Inter-American Commission on Human Rights
(LACHR?”), which recently ruled that executing Mr.
Bucklew in light of the medical vulnerabilities he
suffers would inflict cruel and inhuman punishment
on him and could result in torture, both of which are
prohibited by the American Declaration of the Rights
and Duties of Man. App. (Inter-American
Commission on Human Rights, Report No. 28/18,
12
Case No. 12,958, Report on Merits, Russell Bucklew
(March 18, 2018)).4 The Commission concluded:
The Commission considers that this
particular risk of choking on his own blood,
being aware of it, and for a period of up to
four minutes, taking in consideration the
context of extreme stress and anxiety, would
constitute cruel and inhuman punishment.
The LACHR finds that the severity of the
suff-ring that would be imposed under such
circumstances could amount to torture.
App. 42a (LACHR Report 15 (4 78)). The Commission
also determined that whether a proposed punishment
constituted cruel and inhuman punishment or torture
in this case is not dependent upon the existence of
less painful alternatives. App. 43a-45a (IACHR
Report 16 (%4 80-82)). As the Commission ruled,
proceeding with the execution of Mr. Bucklew in the
face of the knowledge of the heightened pain and
suffering that would be involved for him would
violate the United States’ international obligations to
ensure it does not inflict cruel and inhuman
punishment. App. 45a (LACHR Report 16 (4 83)).
“By protecting even those convicted of heinous
crimes, the Eighth Amendment reaffirms the duty of
the government to respect the dignity of all persons.”
Roper, 543 U.S. at 560. In light of Mr. Bucklew’s
* As a Member State of the Organization of American
States, the 1948 American Declaration of the Rights and Duties
of Man imposes international legal obligations on the United
States. App. 33a-34a (ACHR Report 12 (J 60)). The American
Declaration guarantees the right of everyone to be free from
cruel and inhuman treatment or punishment and torture. /d. at
4ia (ACHR Report 16 (J 76)). And the [ACHR is the entity
charged with the enforcement of these rights.
13
uniquely compromised physical condition, the
execution method proposed by prison officials violates
“the basic dignity the Constitution protects.” Hall v.
Florida, 134 S. Ct. 1986, 2001 (2014). The Court
should grant certiorari and hold that in individual as-
applied challenges to methods of execution, a showing
that the method will inflict excruciating pain on a
prisoner above that suffered by others is sufficient to
violate the Eighth Amendment, without regard to
whether alternative methods of execution exist.
Il. THE COURT SHOULD GRANT CERTIORARI!
TO ADDRESS CONFUSION IN THE LOWER
COURTS REGARDING THE PROCEDURES
GOVERNING AS-APPLIED CHALLENGES
TO THE METHOD OF EXECUTION.
Mr. Bucklew also seeks certiorari on two questions
regarding the procedures the lower courts employed
in rejecting his Eighth Amendment challenge. The
court of appeals assumed without any evidentiary
basis that the individuals responsible for carrying out
Mr. Bucklew’s execution were competent to do so, and
barred Mr. Bucklew’s requests for discovery
concerning their ability to address the complications
presented by his rare medical condition—a condition
with which there is no reason to believe state officials
have any prior experience at all. Pet. 21-25. It did so
even though prison officials’ own protocols do not
assume that the employees are competent to access
particularly challenging veins that may well be
necessary in Mr. Bucklew’s case. Pet. 22-23. And the
court further demanded that Mr. Bucklew must prove
that an available alternative would reduce the risks
of needless pain through a single witness. Pet. 26-27.
Together, these rulings made it virtually impossible
for Mr. Bucklew to make the showing
alternative methods of execution that the Eighth
14
Circuit also imposed on him. These obstacles find no
justification in the Federal Rules of Civil Procedure
or the Federal Rules of Evidence. In the capital
punishment context, the courts should be demanding
full and fair adversarial testing, not constructing one-
time-only obstacles that no other litigant must face.
The risks of error where courts impose heightened
obstacles and employ one-sided procedures in these
cases are substantial, as the botched execution of
Doyle Hamm graphically illustrates. Here, too, the
Court's prior denial of similar claims by a
particularly vulnerable death row inmate, and the
horrific consequences that followed, counsel in favor
of granting Mr. Bucklew’s request for certiorari now,
before it is too late.
On February 22, 2018, after this Court denied a
stay of execution and a petition for certiorari, Hamm
v. Dunn, 138 S. Ct. 828 (2018) (mem.), Alabama
attempted to execute Doyle Hamm. The result was a
torturous and bloody hours-long ordeal, in which
prison officials ultimately gave up, but not before
inflicting substantial needless and excruciating pain.
Mr. Hamm had challenged lethal injection as applied
in his case because of his compromised medical
condition, including large-cell lymphoma cancer and
severely deteriorated veins. Hamm v. Dunn, No. 2:17-
cv-02083, 2018 WL 723104, at *1 (N.D. Ala. Feb. 6,
2018). The district court accepted that Mr. Hamm
had proferred sufficient evidence to create material
issues of fact regarding whether his peripheral veins
were too compromised for injection, and whether
central line placement was unduly dangerous because
his enlarged lymph nodes created an increased risk of
puncturing a central artery, causing severe and
unnecessary pain. /d. at *1-*2. Rather than grant an
injunction, however, the court appointed its own
15
independent, anonymous medical doctor to evaluate
whether Mr. Hamm could sustain lethal injection. /d.
at *2.
On February 16, 2018, days before Mr. Hamm’s
scheduled execution, the district court conducted a
highly unusual hearing. The independent doctor
communicated in camera and ex parte with the
district court and later filed a written report. Hamm
v. Comm’r, Ala. Dep't of Corr., No. 18-10636, 2018 WL
1020051, at *1-*2 (llth Cir. Feb. 22, 2018). The
doctor did not testify in court, and Mr. Hamm was
not permitted to cross-examine him, or to present
rebuttal evidence of any kind. The doctor found that
Mr. Hamm’s veins in his arm were not suitable for
placement of the intravenous catheters required by
Alabama's protocol. Jd. at *2. At the district court's
invitation, Alabama then agreed to alter its protocol
to limit any injections to Mr. Hamm’s legs or central
venous access. Mr. Hamm was not permitted to
respond. /d.; see also, Petition for Writ of Certiorari,
Hamm, 138 S. Ct. 828 (No. 17-7855).
The district court also found that central line
access would require the use of ultrasound and would
need to be administered by an “advanced level
practioner.” Hamm, No. 18-10636, 2018 WL 1020051,
at *7. It ordered the execution to proceed with the
modifications it had crafted. Jd. Mr. Hamm appealed
and sought a stay from the Eleventh Circuit. The
Eleventh Circuit found that the record below was
inadequate to determine whether Alabama was
capable of following the modifications ordered by the
district court. It ordered Alabama to submit, within
six hours, sworn affidavits addressing some of the
unanswered questions. /d. Alabama filed three
affidavits in the appellate court, and the Eleventh
16
Circuit, too, ordered that the execution could proceed.
Id. Again, Mr. Hamm had no opportunity to respond.
Mr. Hamm filed a motion for stay and petition for
certiorari with this Court, alleging that he should
have been provided an opportunity to test the
evidence and that the federal courts had themselves
improperly devised an alternative protocol. See
Petition for Writ of Certiorari, Hamm, 138 S. Ct. 828
(No. 17-7855). He argued, for example, that one of the
affidavits submitted was misleading because it said,
in response to whether a doctor was available to
insert the IV, only that a doctor would be “present.”
Id. at 6. This response did not address whether the
doctor would participate in the setting of the central
line. Jd. This Court denied relief, but two Justices
would have granted Mr. Hamm’s stay on the ground
that he should have been afforded an opportunity to
challenge through the adversarial process the last
minute conclusions and evidence. See Hamm, 138 S.
Ct. at 828 (Ginsburg, J., dissenting from the denial of
the application for stay and the denial of certiorari).
When Alabama proceeded with its plan to execute
Mr. Hamm, the prison staff could not find a vein for
peripheral lethal injection—just as Mr. Hamm had
predicted. They tried for two and a half hours to find
a suitable vein, repeatedly slapping his legs and
stabbing his legs and ankles. During some of these
attempts, the execution team members left needles in
Mr. Hamm’s legs for several minutes, moving around
in a painful search for a vein. Sandee LaMotte, Death
row inmate sues after ‘botched’ execution, CNN
(March 7, 2018), https://www.cnn.com/2018/03/07/
health/alabama-execution-lawsuit/index. html. The
executioners then attempted central vencus access
through Mr. Hamm’s right groin—the area where Mr.
Hamm’s expert had warned that access could be
17
excruciating because of his cancer. The procedure was
extremely painful and caused profuse bleeding,
soaking the underlying pad in blood—again, as
predicted. Jd. Over the course of the more than two-
hour ordeal, Mr. Hamm prayed the execution would
succeed to end his pain. Tracy Connor, Lawyer
describes aborted execution attempt for Doyle Lee
Hamm as ‘Torture, NBC News (Feb. 25, 2018),
https://www.nbcnews.com/storyline/lethal-injection/
lawyer-calls-aborted-execution-attempt-doyle-lee-ha
mm_-torture-n851006. “When he was finally removed
from the gurney, he collapsed.” Liliana Segura,
Another Failed Execution: the Torture of Doyle Lee
Hamm, Intercept (March 3, 2018), https://the
intercept.com/20 18/03/03/doyle-hamm-alabama-execu
tion-lethal-injection/.
After the botched execution, Mr. Hamm and
Alabama entered a private settlement agreement,
dismissing all of Mr. Hamm’s litigation and offering
“great relief’ to Mr. Hamm. See Columbia Law School
Media Advisory, Bernard Harcourt and the State of
Alabama Settle Civil Rights and Habeas Corpus
Lawsuits (March 27, 2018), http://www.law.columbia.
edu/news/2018/03/bernard-harcourt-and-state-ala
bama-settle-civil-rights-and-habeas-corpus-lawsuits.
While the terms are confidential, it is a reasonable
inference that Alabama will not again attempt to
execute Mr. Hamm.
As in Mr. Hamm’s case, the courts in Mr. Bucklew’s
case also crafted unique procedural rules for
evaluating his as-applied challenge to lethal
injection. As noted above, the Eighth Circuit simply
assumed the competence of key players in the
execution process, even though prison official’s own
protocols do not assume such competence. The court
barred any discovery into the question. And it applied
18
a new rule, with no foundation in the rules governing
civil litigation, that Mr. Bucklew must make a
comparative showing about alternative methods of
execution through a single witness.
Serious challenges to execution protocols based «a
an individual’s specific medical condition warrant the
full benefit of the adversarial process. Such claims
ask the courts to avoid a torturous execution. There is
no basis to subject the Eighth Amendment's
guarantee against cruel and unusual punishment to
special procedural obstacles applicable only to
challenges to the method of execution. The [ACHR in
Mr. Bucklew’s case also found that the extraordinary
obstacles imposed on Mr. Bucklew violated
international human rights obligations. As _ the
LACHR concluded:
In capital cases, the State has an enhanced
obligation to ensure that the person
sentenced to death has access to all the
relevant information regarding the manner
in which he or she is going to die. In
particular, the convicted person must have
access to information related to the precise
procedures to be followed, the drugs and
doses to be used in the case of execution by
lethal injection, and the composition of the
execution team as well as the training of its
members. ... Any person subjected to the
death penalty must have the opportunity to
challenge every aspect of the execution
procedure and such information is necessary
to file a challenge.
App. 39a (LACHR Report 14 (44 71-72)).
Mr. Bucklew should be permitted to challenge the
training and qualifications of the prison staff to carry
19
out his execution in light of his rare medical
condition. The Eighth Circuit erred in denying him
any discovery on that issue, and indeed pretermitted
the issue by adopting an unfounded assumption of
competence that the State itself does not adopt. In
Mr. Hamm’s case, the absence of full and fair
adversarial testing led the federal courts to rely on
demonstrably erroneous factual conclusions, and
allowed Alabama to proceed with a horribly botched
execution. This history is in danger of repeating
itself. The Court has an opportunity to avert such a
repetition, by granting review and holding that
medically compromised prisoners should be granted
access to information about the training and
qualifications of the execution team if it is relevant to
their sufficiently pleaded claims, and should not be
subject to unique procedural obstacles to full and fair
adversarial adjudication.
20
CONCLUSION
For all the above reasons, the Court should grant
the petition for a writ of certiorari.
April 6, 2018 Respectfully submitted,
Cassandra Stubbs
Counsel of Record
Olivia Ensign
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
201 W. Main Street, Suite 402
Durham, NC 27701
(919) 682-5659
cstubbs@aclu.org
David D. Cole
Amanda W. Shanor
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 15th Street, NW
Washington, D.C. 20005
Steven Watt
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
Anthony E. Rothert
Gillian Wilcox
Jessie Steffan
AMERICAN CIVIL LIBERTIES UNION
OF MISSOURI FOUNDATION
906 Olive Street, Suite 1130
St. Louis, MO 63101
Counsel for Amici Curiae
APPENDIX
la
[LOGO]
INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS
REPORT No. 28/18
CASE 12,958
REPORT ON MERITS
RUSSELL BUCKLEW
UNITED STATES
OEA/Ser.L/V/II.
Doc. 33
www.cidh.org
Approved by the Commission on March 18, 2018.
Cite as: IACHR, Report No. 28/18, Case 12.958.
Merits. Russell Bucklew. United States, March 18,
2018.
[LOGO] Organization of American States
IV.
INDEX
I i eae dade leeiaaegeneammeennennntne 4
POSITIONS OF THE PARTIBS.................. 6
A. Position of the Petitioners...................... 6
Bk IN Ge GD Bi ccccececccsccccveccscscncceses 9
Ee 12
A. The application of Lethal Injection
in the State of Missouri ............................... 12
B. Russell Bucklew’s criminal conviction and
his medical condition ...........................00-++-+- 13
C. Judicial actions challenging Missouri's
lethal injection protocol ............................... 15
1. Judicial proceedings before 2014........... 15
2. Judicial proceedings since 2014............. 17
SE GRIT ceatinersesnenmtnsitonncsnemneniinnscedies 31
A. Preliminary considerations on the [ACHR’s
standard of review in cases involving the
tienen eneieniintnetemeestiedenneane 31
B. Right to humane treatment, and not to
undergo cruel, degrading, and unusual
punishment and right to a fair trial in
relation to the method of execution and
D.
3a
2. Analysis of the case.......................... 40
Right of protection against arbitrary
arrest, to humane treatment, and not
to undergo cruel, infamous, or unusual
punishment, with respect to the
deprivation of liberty on death row....... 45
The right to life and not to receive
cruel, infamous, or unusual punishment
with respect to the eventual execution
of Russell Bucklew ................................ 51
CONCLUSIONS AND
RECOMMENDATIONS ....00. ooo. eee 53
I. SUMMARY
1. On May 19, 2014, the Inter-American
Commission on Human Rights (hereinafter, “the
Inter-American Commission” or “the LACHR”)
submitted on behalf of Russell Bucklew (hereinafter,
“the alleged victim” or “Mr. Bucklew”) deprived of his
liberty on death row in the state of Missouri.'
2. The Commission adopted its Admissibility
Report No. 54/14 on July 21, 2014.? On July 28, 2014
3 On May 20, 2014, the Commission adopted Resolution
5a
3. The petitioners alleged that the lethal
injection protocol in Missouri creates an intolerable
risk of excruciating pain. They claimed that, given a
serious congenital medical condition that Mr.
Bucklew suffers, the current protocol creates a
substantial risk that the drug will not circulate
properly, leading the alleged victim to hemorrhage,
choke and suffocate. Petitioners further argued that
the secrecy surrounding the development and
implementation of lethal injection protocols in
Missouri has effectively prevented death row
prisoners from arguing that a given method of
execution violates the prohibition of cruel and
unusual punishment. On March 14, 2018 the
petitioners informed the Commission that the
execution of the alleged victim was scheduled by the
state of Missouri for March 20, 2018.4
4. The State argued that the alleged victim has
been provided his due process rights and judicial
guarantees, and that the domestic courts have
considered his allegations concerning the method of
execution and Missouris protocol. The State
maintained that the death penalty is not incompatible
with international law and that lethal injection has
been considered to be a more humane method.
5. Having examined the positions of the parties
and the established facts, the Inter-American
Commission concluded that the United States is
responsible for violating Articles I (right to life,
liberty and personal security), XVIII (right to a fair
trial), XXV (right of protection from arbitrary arrest)
4 On the same date, the [ACHR sent this information to
within a period of two days. The [ACHR did not receive the
observations of the United States.
6a
and XXVI (right to due process of law) of the
American Declaration of the Rights and Duties of
Man (hereinafter “American Declaration”) in the case
of Russell Bucklew. In the event the execution of Mr.
Russell Bucklew is carried out, the State would be
responsible for a serious and irreparable violation of
the fundamental right to life protected in Article | of
the American Declaration.
Il. POSITIONS OF THE PARTIES
A. Position of the Petitioners
6. The petitioners stated that Russell Bucklew
was sentenced to death on May 15, 1997, in the state of
Missouri in the United States. They indicated that the
Missouri Supreme Court first set his execution date for
May 21, 2014, but on May 9, 2014, Mr. Bucklew filed
suit in the United States District Court-Western
District of Missouri challenging Missouri's execution
protocol as it would apply to him specifically. On May
20, 2014, the United States Supreme Court granted Mr.
Bucklew a stay and ordered the United States Court of
Appeals for the Eighth Circuit to hear his case.
Petitioners affirmed that the Eighth Circuit
subsequently ruled that the federal district court erred
in dismissing Mr. Bucklew’s complaint because it was
not patently obvious that he could not prevail or that
an amendment to the complaint would be futile.
Petitioners informed that, on June 15, 2017, the district
court granted summary judgment in favor of the State.
This decision was later affirmed by the Eighth Circuit
Court of Appeals on March 6, 2018. According to the
most recent information provided, Mr. Bucklew’s
execution has been scheduled for March 20, 2018.
7. With regard to the suit filed by Mr. Bucklew
challenging Missouri's execution protocol before the
7a
United States District Court, petitioners reported
that the Eighth Circuit concluded Mr. Bucklew failed
to establish that the lethal injection, as applied to
him, constitutes cruel and unusual punishment
under the Eighth and Fourteenth Amendments.
According to the information petitioners provided, the
court did not challenge Mr. Bucklew’s contention that
lethal injection posed “a substantial risk of serious
and imminent harm” to him but considered, under
the Supreme Court’s decision in Glossip v. Gross, that
he had failed to show that his proposed alternative
method of execution-induced hypoxia (lethal gas)—
was a “feasible, readily implemented” method that
would substantially reduce his suffering.
8. The petitioners affirmed that the lethal
injection protocol that the state of Missouri plans to
use for the execution of Mr. Bucklew calls for the
administration of five grams of pentobarbital,
administered through an IV line into the execution
chamber, where the prisoner is alone and strapped to
a gurney. The petitioners opposed the protocol
because it calls for proceeding with executions using
compounded pentobarbital; for removing methylene
blue from the saline fluids used to start and flush the
IV line; and it provides the option to use a central
venous line (femoral, jugular, or subclavian) for the
placement of the intravenous line, over the periphera!
line access, commonly used in other states’ protocols.
They stated that during the execution no medica!
personnel would be close at hand; but would monitor
the prisoner remotely from the “execution support
room” while non-medical personne! administer the
lethal drug by injecting it into a syringe.
9. The petitioners indicated that Mr. Bucklews
execution with this protoco! presents a unique threat of
cruel, inhuman, or degrading treatment and even
8a
torture. They explained that Mr. Bucklew suffers since
infancy from cavernous hemangioma in his neck and
head, a blood vessel condition that causes clumps of
weakened, malformed vessels to grow in his head, face,
and throat, displacing healthy tissue and rupturing
under stress. They further explained that Mr. Bucklew
also has a massive vascular tumor occupying his nose,
throat and airway passages. As a result, petitioners
affirmed that his conditions create a very substantial
risk that he will suffer excruciating, even torturous,
pain during an execution. Petitiomers added that, in
light of the medications that Mr. Bucklew takes to
manage his medical condition, there is a risk of adverse
events resulting from drug interactions. In this respect,
they determined that the risks arising from drug
interactions and the anesthetic effects of pentobarbital
are further exacerbated by the use of compounded
pentobarbital, which, unlike a manufactured drug,
carries no guarantees of its safety, potency, or purity.
10. The petitioners argued that the state of
Missouri has acquired its pentobarbital in a suspect
manner, in the absence of any regulation or
accountability. They sustained that the Missouri
Department of Corrections refuses to disclose any
information about the drugs safety, purity, and
potency, and will not even confirm whether the drug
is subject to any laboratory testing at all.
11. The petitioners argued that the secrecy
surrounding the use of untested drugs for execution
is incompatible with human rights standards because
the realization of specific rights imposes a duty of
transparency on states, and that it undermines the
public’s right to information needed to establish
whether deprivation of life is arbitrary or lawful. The
petitioners affirmed that while international law does
not per se prohibit the death penalty, it does limit the
9a
methods that may be used to carry it out. In their
view, countries that choose to retain the death
penalty have a clear obligation to disclose the details
of their application of the penalty, including the
methods and protocols of execution, and must carry
out the execution in a manner that “causes the least
possible physical and mental suffering.”
12. Petitioners indicated that the object of the
petition is to challenge the following defects in the
lethal injection protocol that will be applied in this
case: (a) the protocol poses the risk of excruciating
pain; (b) it is experimental, shrouded in secrecy and
involves drug combinations that have not been
approved by the Food and Drug Administration; and
(c) it is administered by individuals who lack the
necessary training. In light of the foregoing, the
petitioners asked the Commission to determine that
Mr. Bucklew’s case presents violations of rights
protected under the American Declaration, including
the right to life (Article I), security of the person and
freedom from cruel, infamous or unusual punishment
(Article XXVI), and the rights to a fair trial and due
process (Articles XVIII, XXVI).
B. Position of the State
13. The State asked the Commission to
reconsider its decision on the admissibility of the
instant case arguing that it “never received a petition
under Article 23 of the Commission’s Rules, nor a
notice of consideration motu propio under Article 24
(...) rather the US received a request for precautionary
measures.” On this point the Commission notes that
in its communication of May 20, 2014, it informed the
United States about the processing of the petition
and granted the timeframe provided in its Rules of
Procedure to present allegations on its admissibility.
10a
14. The State maintained that the American
Declaration “is a nonbinding instrument and does not
create legal rights or impose legal duties on member
states of the Organization of American States.” The
State also informed that, although it considers
precautionary measures to be a “nonbinding
recommendation,” it transmitted the request to the
Governor and Attorney General of Missouri on May
20, 2014.
15. The State argued that the alleged victim has
had access to an extensive domestic judicial review
process in which his claims were reviewed. It indicated
that the Missouri Supreme Court, after considering
his claims raised at that point and weighing whether
capital punishment was disproportionate, affirmed
Mr. Bucklew’s convictions on August 25, 1998. The
State also made reference to the applications filed by
the alleged victim, including requests for certiorari
and habeas corpus, as well as the claims pursued by
Mr. Bucklew and other death row inmates to challenge
the lethal injection protocol in the state of Missouri. It
further referred to the proceedings that took place in
2014 after an execution date was scheduled by the
Missouri Supreme Court for May 21, 2014, and the
stay of execution that was later granted.
16. The State alleged that any decision on the
merits in this case would entail the fourth instance
formula, which prevents the Commission from “freely
second-guessing domestic courts’ legal and evidentiary
judgments calls.” In this sense, the State reiterated
that the alleged victim has had due process through
many opportunities to challenge both his conviction for
capital murder and the proposed method of execution.
17. In addition, the State argued that the claims
concerning Missouri’s current protocol and _ the
lla
allegations on the secrecy surrounding such documents,
should not be considered either, given the fourth
instance standard as it concerns matters of domestic
law. Nonetheless, the State maintained that there is
sufficient public information regarding the details of
Missouri's injection protocol, which in fact was taken
into account to successfully secure a stay of execution
from the U.S. Supreme Court in favor of the alleged
victim. Therefore, the State considered that the right to
due process has not been violated with respected to the
alleged secrecy surrounding Missouri's protocol.
18. The State indicated that international law
permits capital punishment when it is duly prescribed
for the commission of the most serious crimes and
carried out by a State in accordance with due process
of law and stringent procedural safeguards, as it
considers is the situation in the United States. Thus,
the State affirmed that capital punishment is
compatible with the right to life under international
law and highlighted that the United States has not
signed or ratified any international convention
obligating it to abolish capital punishment.
19. As for lethal injection as a method of
execution, the State alleged that this method has
often been adopted as more humane than other
methods that have been tried, and that the United
Nations Human Rights Committee has found that
lethal injection does not violate the International
Covenant on Civil and Political Rights. The State
contended that it should be given a “wide margin of
appreciation,” deferring to the discretion of local
actors who have to deal with complicated medical and
scientific circumstances and are in the best position
to assess such matters. In this sense, the State
referred to domestic decisions in other death penalty
cases which found that lethal injection did not
12a
constitute cruel and unusual punishment and was in
fact deemed to be more humane than other methods.
Ill. PROVEN FACTS
A. The application of lethal injection in
the State of Missouri
20. The Commission takes note of the Protocol for
Preparation and Administration of Chemicals for
Lethal Injection of the Missouri Department of
Corrections. Under this protocol, the state of Missouri
regulates different elements of the preparation and
application of the lethal injection, such as: the
execution team members, the preparation of
chemicals, the intravenous lines, the monitoring of
prisoners, the administration of chemicals and the
documentation of chemicals.°®
21. According to the text of the abovementioned
protocol, medical personnel are responsible for the
preparation of the lethal chemicals before the
execution; for the determination of the most
appropriate locations for intravenous (IV) lines and
insertion; and for monitoring of the prisoner during
the execution.* With regard to the insertion of the IV
lines, the protocol calls for two, the primary IV line
that may be inserted as a peripheral line or as a
central venous line (eg., femoral, jugular, or
subclavian) provided they have appropriate training,
5 Missouri Department of Corrections. Preparation and
mec one inte de age: Angee sr ar onal a
6 Missouri Department of Corrections. Preparation and
ee Sa on
l3a
education, and experience for that procedure; and the
secondary IV line as a peripheral line. The second IV
should not be used if the prisoner's physical condition
makes it unduly difficult to insert more than one.
22. Additionally, the protocol calls for the
execution team to be comprised of department
employees and _ contracted medical personnel
including a physician, nurse, and pharmacist. In
general terms, it proscribes that the team will also
include anyone selected by the department director
“who provides direct support for the administration of
lethal chemicals, including individuals who prescribe,
compound, prepare, or otherwise supply the
chemicals for use in the lethal injection procedure.”’
The members of the execution team under the
observation of medical personnel are to be responsible
for the injection of the chemicals into the prisoner.*
B. Russell Bucklew’s criminal conviction
and his medical condition
23. On May 1997, Mr. Bucklew was sentenced to
death for first degree murder, after a jury trial. He
also received prison sentences of 30 years for
kidnapping, 30 years for burglary, 30 years for rape,
and five years for armed criminal action.’ Since then,
7 Missouri Department of Corrections. Preparation and
Administration — for a oe — at.
8 Missouri Department of Corrections. Preparation and
mena 2 ithe thee pee Aer - sn te wd nad
9 State's submission dated March 28, 2016, p.2. See also:
Bucklew v. Lombardi, No. 14-8000-CV-W-BP.
l4a
Mr. Bucklew has been detained at the Potosi
Correctional Center in Mineral Point, Missouri.'°
24. The available information indicates that Mr.
Bucklew’s conviction and sentence were affirmed on
direct appeal. Likewise, his petition for post-
conviction relief was denied and this was affirmed by
the Supreme Court of Missouri. Mr. Bucklew also
filed a petition for a federal writ of habeas corpus
which was denied and this was affirmed by the
United States Eighth Circuit Court of Appeals. An
application for certiorari to the U.S. Supreme Court
was denied as well.!!
25. It is not disputed that Mr. Bucklew suffers
from a rare and congenital medical condition, known
as “cavernous hemangioma.” !?
10 Initial petition before the L[ACHR, p. 6.
‘| See: Initial petition before the IACHR; State's
submission dated March 28, 2016; and Bucklew v. Precythe, No.
17-3052, 2018 WL 1163360.
12 Initial petition before the [ACHR, p. 2. The petitioner
explained that “carvernous hemangioma is a blood vessel
condition that causes large tumors of malformed blood vessels to
grow on Mr. Bucklew’s head, face, and neck. Stricken with this
condition since childhood, Mr. Bucklew frequently endures
severe pain, nausea, dizziness and difficulty breathing. The
tumors are so large that the blood vessels within them are
distended and weak. Under stress, they rupture. His airway is
compromised by a vascular tumor.” Petitioner's submission
dated March 14, 2018, p. 2. See also: Bucklew v. Lombardi, No.
14-8000-CV-W-BP.
l5a
C. Judicial actions challenging Missouri’s
lethal injection protocol
1. Judicial proceedings before 2014
26. According to the available information, Mr.
Bucklew has filed three different judicial actions
raising allegations regarding the lethal injection
protocol in the State of Missouri, as well as specific
considerations as to his medical condition and the use
of certain drugs for the execution. The Commission
does not have detailed information about the course
of these proceedings, as the petitioners and the State
only made brief references to them. In the State’s
submission dated March 28, 2016 it presented a brief
timeline of these actions.
27. Specifically the State referred to the first suit
filed in 2009 before the Missouri District Court by
Mr. Bucklew and other death row inmates. According
to the State, this suit challenged the lethal injection
protocol in the state of Missouri and claimed that
Missouri authorities did not obtain the drugs used in
this method lawfully, that they were not prescribed
by a licensed practitioner, and that these were not
approved by the Federal Food and Drug Administration
for use in lethal injections. Specifically this action
sought a declaratory judgment that Missouri’s lethal
injection violates the Food, Drug and Cosmetic Act
(“FDCA”) as well as the Controlled Substances Act
(“CSA”).'3 The State indicated that, on May 19, 2009,
the district court decided in favor of the Missouri
13 The State cited: Ringo v. Lombardi, No. 09-4095-CV-C-
NKL, 2009 WL 1406980, at *1(W.D. Mo. May 19, 2009). State's
submission dated March 28, 2016.
l6a
Department of Corrections.'* This decision was then
appealed to the Eighth Circuit Court of Appeals
which dismissed the complaint considering that the
protocol being challenged had changed due to supply
issues. '© In addition, the State mentioned that
litigation was brought to unseal documents in the
court's docket, including the deposition of an
anesthesiologist, which the litigants considered could
reveal key information about Missouri's execution
procedures.'® Lastly, the State said that, on January
6, 2016, the district court denied the request to
unseal.
28. According to the State, the second suit was
filed by Mr. Bucklew and a group of death row
inmates in 2012 against various officials of the
Missouri Department of Corrections. It claimed that
Missouri's execution protocol creates a substantial
risk of severe pain constituting cruel and unusual
punishment; that the protocol constitutes deliberate
indifference to serious medical needs in violation of
due process; that the process for setting execution
dates denies the inmates access to the courts in
violation of due process; that the failure to comply
with the injection protocol violates due process and
equal protection rights; and that Missouri has
concealed information from the public.'? On May 2,
2014 the district court dismissed the case. The State
affirmed at that time that litigation was still ongoing
4 —- The State cited: Ringo v. Lombardi, No. 09-4095-CV-C-
NKL, 2009 WL 1406980, at *1(W.D. Mo. May 19, 2009). State's
submission dated March 28, 2016.
‘5 The State cited: Ringo v. Lombardi, 677 F.3d 793 (8th
Cir. 2012). State's submission dated March 28, 2016.
'6 State's submission dated March 28, 2016.
'7 State's submission dated March 28, 2016, p.4.
17a
on plaintiffs’ motion to unseal documents from the
docket for the public. The Commission does not have
further information regarding this proceeding.
2. Judicial proceedings since 2014
29. Both parties referred in detail to the judicial
proceedings initiated from 2014 to the present and
which are summarized as follows.
30. On April 9, 2014 the Missouri Supreme Court
set Mr. Bucklew’s execution for May 21, 2014.'*
31. On May 9, 2014 Mr. Bucklew filed a new
lawsuit in the United States District Court for the
Western District of Missouri, alleging that Missouri's
lethal injection method posed a unique risk to him
because of his medical condition. He also sought a
preliminary injunction and a stay of execution.
Among his allegations, Mr. Bucklew claimed that
failing to take reasonable and necessary steps to
assess the risk he would face during his execution
“constitutes deliberate indifference to his serious
medical needs and violates his rights under the
Eighth Amendment and the Due Process Clause of
the Fourteenth Amendment.”'®
32. On May 19, 2014 the district court denied
both motions.” In its decision, the court reviewed
affidavits from three experts submitted by Mr.
Bucklew, and found that these were “insufficient to
'8 Initial petition before the LACHR, p. 6.
'9 State's submission dated March 28, 2016, p.4 and
petitioners’ submission dated February 4, 2015, p. 8. They cited:
Bucklew v. Lombardi, No. 14-8000-CV-W-BP, 2014.
20 =“ State’s submission dated March 28, 2016, p.4 and
petitioners’ submission dated February 4, 2015, p. 8. They cited:
Bucklew v. Lombardi, No. 14-8000-CV-W-BP, 2014.
18a
conclude that any adverse consequences [Mr.
Bucklew] may suffer rise to the level of
unconstitutional pain.” Moreover the court considered
that:
Although the affidavits contain words such as
“significant” and “substantial risk,” a closer
look reveals that the affidavits do not contain
the specificity necessary to prevail on an
Eighth Amendment claim. For example, when
discussing the possibility of adverse drug
interactions, [Expert Z.| fails to explain how
the medications could interact to increase
Bucklew’s pain. Although he concludes there is
a substantial risk that drug interactions could
cause pain, he bases this conclusion on the fact
that medications “may” interact with
pentobarbital. When discussing the possibility
that the lethal drug will not circulate as
intended, there is no explanation as to how the
drug should circulate or will
circulate. Similarly there is no explanation as
to how he defines “prolonged” or “extremely
painful.” Lastly, the affidavits are void of
discussion regarding the length of time
Bucklew may suffer pain. [...] See Fierro v.
Gomez |...]| (determining that execution by
lethal gas is cruel and unusual! punishment by
considering: (1) the extreme pain an inmate
would suffer; (2) the specific length of time this
extreme pain lasts; and (3) the substantial risk
that an inmate will suffer this extreme pain for
several minutes); see also Brewer v. Landrigan,
131 S. Ct. 445 (2010) (holding that “speculation
cannot substitute for evidence that the use of
the drug is sure or very likely to cause serious
illness and needless suffering”) [...] Whitaker v.
19a
Livingston, 732 F.3d 465, 468-69 (5th Cir.
2013)(“It is indeed not unreasonable to assume
that if a prisoner has the right to be free from a
demonstrated risk of severe pain when
compared to a known and available alternative,
he ought to have the opportunity to prove the
risk of pain and the availability of alternatives.
Even so, plaintiffs must point to some likelihood
that such pain will be severe and that some
alternative may exist. It is unacceptable to
claim that some unspecified amount of time is
required, just in case they might be able to
show that there might be some risk of
potentially excessive pain ...” “{U]nknown
unknowns [about the dangerous propensity of
a drug used for lethal injection] are insufficient
to demonstrate a risk of harm; something more
is needed to meet the difficult preliminary-
injunction standard.”)?!
33. Mr. Bucklew appealed this decision to the
United States Court of Appeals for the Eighth
Circuit. On May 20, 2014 the Eighth Circuit initially
reversed this decision and granted the stay of
execution, the motion having been heard by a three-
judge panel and granted by a vote of 2-1.
Immediately on the same date, the Eighth Circuit
later sitting en banc reversed the ruling of the panel,
and decided the execution would proceed.”
2! Bucklew v. Lombardi, No. 14-8000-CV-W-BP, 2014.
22 = State’s submission dated March 28, 2016, p.4 and
petitioner's submission dated February 4, 2015, p. 8. They cited:
Bucklew v. Lombardi, 565 F. App’x 562, 564 (8th Cir.), opinion
vacated on rehearing en banc (May 20, 2014); and Bucklew v.
Lombardi, 565 F. App'x 562 (8thCir. 2014), revd en banc
(mem.).
20a
34. Mr. Bucklew then applied to the US.
Supreme Court for a stay of execution. On May 21,
2014, the U.S. Supreme Court ordered that the
execution be stayed, pending disposition of the appeal
by the Eighth Circuit.2*
35. On March 6, 2015 the Eighth Circuit Court
ruled that in dismissing Mr. Bucklew’s compiaint the
federal district court erred “because it was not
patently obvious that he could not prevail or that an
amendment to the complaint would be futile.”** The
Eighth Circuit Court remanded the case to the
district court to further examine petitioner's proposed
alternatives to the current protocol and Missouri's
willingness to alter its procedure to accommodate
those alternatives. At the time, the State indicated
that “this ruling technically ended the Supreme
Court’s stay of execution, but the Missouri Supreme
Court has not set a new date of execution, so the
effect has been that of an indefinite stay.””°
36. After the mandate issued by the Eighth
Circuit Court, Mr. Bucklew filed several amended
complaints, three of which were dismissed. The
fourth amended complaint asserted an Eighth
Amendment challenge, alleging that Missouri's
method of execution is unconstitutional if applied to
Mr. Bucklew due to his medical condition. Further
23 = State’s submission dated March 28, 2016, p.4 and
petitioner's submission dated February 4, 2015, p. 4. They cited:
Bucklew v. Lombardi, 134 S. Ct. 2333 (2014). 572 U.S. Order
13A1153 (May 21, 2014) (staying the case and denying
certiorari); Order, Bucklew v. Missouri, Case No. 13-10165 (U.S.
May 20, 2014); and Bucklew v. Lombardi, Case No. 14-2163 (8th
Cir. May 20, 2014).
%4 Petitioners’ submission dated March 14, 2018, p. 1.
*5 —_‘ State’s submission dated March 28, 2016, p.5.
Zila
specific allegations in this last amended complaint
indicated that using any lethal drug and carrying out
the execution by lethal injection will pose “an
enormous risk that Mr. Bucklew will suffer extreme,
excruciating and prolonged pain- all accompanied by
choking and struggling for air.” It was also alleged
that allowing Mr. Bucklew the possibility to adjust in
the gurney would not be sufficient, as “the stress of
the execution may unavoidably cause Mr. Bucklew’s
hemangiomas to rupture, leading to hemorrhaging,
bleeding in his throat and through his facial orifices,
and coughing and choking on his own blood.” In
addition, it was requested that a complete set of
imaging studies be conducted to fully evaluate and
establish the risks involved in the execution by lethal
injection considering his medical condition.”®
37. On June 15, 2017, the district court granted
summary judgment at the Missouri Department of
Corrections’ request, after finding that Mr. Bucklew’s
complaint failed to show that execution by nitrogen
hypoxia would substantially reduce the risk of pain or
suffering.?’
38. A copy of this decision is included in the
Commission’s case file. The pertinent parts of the
ruling are summarized as follows.“
39. The decision took into consideration the
available information on Missouri's death penalty
protocol, stating that while such information “has not
been succinctly described” the parties “implicitly
agree” that it involves the intravenous administration
26 See: Bucklew v. Precythe, No. 17-3052, 2018 WL
1163360.
27 ~_— Petitioner's submission dated March 14, 2018, p. 2.
“8 ~- Bucklew v. Lombardi, No. 14-8000-CV-W-BP.
22a
of pentobarbital. The court also referred to Mr.
Bucklew’s medical condition, but stated that from the
pertinent parts of the protocol it is confirmed that “a
central line in the femoral vein may be used instead
of inserting an IV in the peripheral veins.”” It also
considered the information on the risk of Mr.
Bucklew’s femoral vein rupturing, based on the
expert opinion proposed by Mr. Bucklew’s defense,
who “testified that the femoral vein is large and
capable of ‘taking a fair amount of fluid’ when the
central line is properly placed, and the risk of that
vein rupturing is ‘unlikely.” Based on this expertise,
the court asserted that “the risk of [Mr. Bucklew’s]
veins rupturing was limited to his peripheral veins.
According to the expert, there was no reason to
believe that Mr. Bucklew’s medical condition “made
his femoral vein more susceptible to rupture than
might otherwise be expected.”
40. In addition and based on the file record, the
court established that Mr. Bucklews medical
condition “will not affect the flow of chemicals in his
bloodstream once they are introduced through the
femoral vein, or otherwise affect his expected
response to the pentobarbital.”
41. As for the factual disputes, the court also
noted that these involved (i) Mr. Bucklew’s ability to
adjust his breathing once the pentobarbital begins to
take effect, since it was claimed that due to his
medical condition he has difficulty breathing while in
2“ The Court noted that this scenario was “assuming that
an IV could be placed [in the peripheral veins] in the first place”
considering the agreement from the parties that because of the
“cavernous hemangioma” Mr. Bucklew’s peripheral veins cannot
be used for the execution because “of the risk that they will
rupture.”
23a
the “supine position,” which is the position required
for inserting a central line:*° and (ii) how quickly the
pentobarbital will deprive Mr. Bucklew “of the ability
to sense that he is choking or unable to breathe.”
While the court referred to expert opinions from both
Mr. Bucklew’s defense and the Missouri Department
of Corrections on this latter point, which were
contradictory, the decision stated that the issue could
not be resolved on summary judgment.*!
30s On this point, the decision recalled that “when required
to be on his back [Mr. Bucklew] can adjust his breathing so that
he can remain in that position” for instance as it was possible for
him “to lie on his back approximately an hour while undergoing
an MRI.” Bucklew v. Lombardi, No. 14-8000-CV-W-BP.
31s The pertinent parts of these expert opinions are referred
to in the decision of the Eighth Circuit Court of Appeals dated
March 6, 2018:
Bucklew’s expert opined that his condition will cause him
to experience severe choking and suffocation during
execution by lethal injection. When Bucklew is supine,
gravity pulls the hemangioma tumor into his throat which
causes his breathing to be labored and the tumor to
rupture and bleed. When conscious, Bucklew can “adjust”
his breathing with repeated swallowing that prevents the
tumor from blocking his airway. But during the “twilight
stage” of a lethal injection execution, [expert] Dr. Zivot
opined that Bucklew will be aware he is choking on his own
blood and in pain before the pentobarbital renders him
unconscious and unaware of pain. Based on a study of
lethal injections in horses, Dr. Zivot estimated there could
be a period as short as 52 seconds and as long as 240
seconds when Bucklew is conscious but immobile and
unable to adjust his breathing; his attempts to breath will
create friction, causing the tumor to bleed and possibly
hemorrhage. In Dr. Zivot’s opinion, there is a “very, very
high likelihood” that Bucklew will suffer “choking
complications, including visible hemorrhaging,” if he is
24a
42. In sum, the court established that “construing
the record in [Mr. Bucklew’s] favor reveals that it
could be fifty-two to 240 seconds before the
pentobarbital induces a state in which [Mr. Bucklew]
could no longer sense that he is choking or unable to
breathe.”
43. As for the legal analysis, the court considered
the ruling of the Supreme Court in Glossip v. Gross
on “what a prisoner must establish to succeed on an
Eighth Amendment method-of-execution claim,”
which requires him or her: (i) to establish that the
method to be utilized “presents a risk that is sure or
very likely to cause serious illness and needless
suffering, and give rise to sufficiently imminent
executed by any means of lethal injection, including using
the drug pentobarbital.
According to [Missouri Department of Corrections, expert]
Dr. Antognini, pentobarbital causes death by “producing
rapid, deep unconscious[ness], respiratory depression,
followed by...complete absence of respiration, decreased
oxygen levels, slowing of the heart, and then the heart
stopping.” In contrast to Dr. Zivot, Dr. Antognini opined
that pentobarbital would cause ‘rapid and deep
unconsciousness” within 20-30 seconds of entering
Bucklews blood stream, rendering him insensate to
bleeding and choking sensations. Dr. Antognini also
challenged Dr. Zivot’s opinion that a supine Bucklew,
unable to adjust his breathing, will be aware he is choking
on his own blood and in pain from the tumor blocking his
airway before the pentobarbital renders him unconscious.
Dr. Antognini noted that, between 2000 and 2003, Bucklew
underwent general anesthesia eight times, at least once in
a supine position. In December 2016, Bucklew lay supine
for over an hour undergoing an MRI, with no more than
discomfort. The MRI revealed that his tumor had slightly
shrunk since 2010.
See: Bucklew v. Precythe, No. 17-3052, 2018 WL 1163360.
25a
dangers;” (ii) to “identify a known and available
alternative method of execution that entails a lesser
risk of pain,” this alternative must be “feasible,
readily implemented, and in fact significantly reduce
[the] substantial risk of severe pain.”
44. On the risk of serious illness or suffering, the
court concluded that inserting the line in Mr.
Bucklew’s femoral vein “does not present any risk of
serious illness or needless suffering;” and that from
the file record it was not possible to establish a
“conclusive determination regarding the risk that
{[Mr. Bucklew] will choke and be unable to breathe for
a period of time that would violate the Eighth
Amendment.”
45. Among other considerations, the court noted
that Mr. Bucklew was not able to establish a legal
argument to discuss the evidence presented by the
Missouri Department of Corrections indicating that
the line could be inserted in his femoral vein to
administer the execution drugs. In this regard, the
decision acknowledged that the factual issues raised
by Mr. Bucklew’s allegations addressed the “potential
difficulty in locating the femoral vein and the fact
that medical personnel might require multiple
attempts to locate it... [which as alleged by Mr.
Bucklew] will increase his stress, thereby increasing
his breathing rate and making it more likely that he
will choke.” The court concluded that Mr. Bucklew
did not quantify such risks nor did he explain how
these facts independently establish that Missouri's
current protocol presented a risk of serious illness or
needless suffering for him. The court also dismissed
this allegation based on its speculative nature and
that an Eighth Amendment claim cannot be
grounded on the likelihood that the medical
procedure would be performed incorrectly.
26a
46. In addition, considering the factual dispute as
to how long Mr. Bucklew will be aware that he is
choking or unable to breathe but unable to adjust his
breathing to remedy this situation after the drugs are
administered, the court reiterated that these issues
could not be resolved on summary judgment but at
trial. The court stated that “solely for purposes of
further discussion, ...[it] presume[d] that there is a
substantial risk that [Mr. Bucklew] will experience
choking and an inability to breathe for up to four
minutes.”
47. On the alternative measures standard, the
court considered Mr. Bucklews request that the
execution be performed with nitrogen gas-induced
hypoxia as he contended that it will “significantly
reduce the risks of severe pain and suffering.”
Regarding this allegation, Mr. Bucklew also raised
opposition to the application of the Glossip standard
to his case contending that this judgment involved
“facial challenge” while his case presented an “as-
applied challenge.” The court dismissed this
argument deeming there was no distinction set by the
Glossip standard between these two _ possible
challenges.
48. The decision then analyzed two main
questions: (i) whether the use of nitrogen gas will
cause Mr. Bucklew “to become unaware of his
choking and breathing difficulties sooner than he
would under the current protocol,” which is expected
to cover four minutes if the pentobarbital is used; and
(ii) whether “that difference in time [was] sufficient to
permit the court to find that nitrogen gas will make a
‘significant’ difference in [Mr. Bucklew] suffering.”
Mainly the court considered one of the expert
opinions based on which it established that there was
no significant difference between these two methods,
27a
nor in the “speed” of their lethal effect. In general,
the court considered that Mr. Bucklew did not
provide sufficient and competent evidence to support
that the effects of nitrogen gas will act faster than
pentobarbital.
49. On March 6, 2018, the Eighth Circuit Court
of Appeals affirmed the district court’s grant of
summary judgment in favor of the Missouri
Department of Corrections, and dismissed Mr.
Bucklew’s challenge to lethal injection in his case.
Circuit Judge Colloton dissented. The pertinent parts
of the ruling and the dissent are summarized as
follows.
50. The decision centered the debate on whether
the Eighth and Fourteenth Amendments would bar
Missouri authorities from employing a procedure that
is authorized by Missouri statute to execute Mr.
Bucklew. The court analyzed the information from
the two expert opinions presented by the parties as
well as the application of the Glossip standard. The
ruling also noted that, while the challenged decision
declined to rely on the likelihood of needless
suffering, it established that Mr. Bucklew failed to
provide “adequate evidence” that the alternative
method of execution he proposed would “significantly
reduce a substantial risk of severe pain.”
51. Considering the issue as to whether a method
of execution would constitute cruel and unusual
punishment, the court deemed it appropriate to rule
on this specific “issue of law” by summary judgment.
The court then considered that:
32 Bucklew v. Precythe, No. 17-3052, 2018 WL 1163360.
28a
Nitrogen hypoxia is an authorized method
of execution under Missouri Law, but it has
not been used since 1965 and does not have
a protocol in force for execution by lethal
gas;
Even though Mr. Bucklew was allowed to
submit “extensive discovery” regarding his
proposed method of execution, given
“Missouri's lack of recent experience such
discovery produced little relevant evidence
and no evidence that the risk posed by
lethal injection is substantial when
compared to the risk by lethal gas;”
Neither the assessment provided by Mr.
Bucklew’s appointed expert nor the State’s
expert were conclusive or sufficient to
support the use of lethal gas as opposed to
lethal injection;
Comparing both expert opinions at the
request of Mr. Bucklew regarding the time
it will take him to be unconscious or to
cause him brain death, the decision
establishes that “both methods would result
in unconsciousness in approximately the
same amount of time;”
Mr. Bucklews claim on _ experiencing
choking sensations if lethal injection is
used, rests on the proposition that he could
not be seated, which would be possible with
lethal gas, but this argument lacks factual
support in the record and in particular,
there was no assertion as to what changes
this would require in applying Missouri's
lethal injection protocol in his execution;
29a
The Director of Corrections has_ the
authority to make changes in the execution
protocol such as how the primary IV line
will be inserted in the central femoral vein
or how the gurney will be positioned, if the
execution team advises that changes are
needed during the preparation;
While Mr. Bucklew sought and was denied
discovery of the identities of the execution
team’s medical members, he never urged
the district court to establish a suitable
fact-finding procedure for discovery of facts
needed for the Director of Corrections to
define the as-applied challenge in using the
current lethal injection protocol on him;
While the Director of Corrections had
proposed to reposition the gurney during
the execution, the record does not disclose
whether Mr. Bucklew will in fact be supine
during the execution nor does it disclose
that a “cut-down” procedure will not be
used to place the primary IV line in his
central femoral vein, a procedure that was
considered unnecessary by the State's
expert; and,
Mr. Bucklew’s allegations are based on
speculation that the Missouri authorities
will employ such risk-increasing procedures.
52. In conclusion and based on the foregoing, the
court reaffirmed that there was no basis to conclude
Mr. Bucklews “risk of severe pain would be
substantially reduced by use of nitrogen hypoxia
instead of lethal injection as the method of execution”
and that he therefore failed to establish that lethal
injection as applied to him would constitute cruel and
30a
unusual punishment under the LFEighth and
Fourteenth Amendments.
53. The ruling also dismissed Mr. Bucklew’s
claim for access to background information on the
members of the execution team, in particular the
technicians’ qualifications, training and experience.
The decision considered that these arguments
proceeded from the premise that the State's
personnel “may not be qualified for the positions for
which they have been hired” or that they “are
incompetent or unqualified to perform their assigned
duties.” Moreover the court recalled that “the
votentiality that something may go wrong in an
execution does not give rise to an Eighth Amendment
violation” as “some risk of pain is inherent in any
method of execution —no matter how humane- if only
from the prospect of error in following the required
procedure.” It also evoked its previous decision
stating that Mr. Bucklew “may not be permitted to
supervise every step of the execution process” and
that it must be assumed that “those responsible for
carrying out the sentence are competent and
qualified to do so, and that the procedure will go as
intended.”
54. As for the dissenting opinion of Judge Collon,
the Commission notes that it was based on the
consideration that the case involved “genuine
disputes of material fact that require findings of fact
by the district court before this dispute can be
resolved.” Therefore Judge Collon was of the opinion
that the case should be remanded to the district court
to promptly conduct further proceedings.
55. Mr. Bucklew’s execution is scheduled for
March 20, 2018.
3la
IV. ANALYSIS OF LAW
56. Taking into account the arguments of the
parties and the proven facts, the Commission will
conduct its analysis of law in the following order: i)
Preliminary considerations on the L[ACHR’s standard
of review in cases involving the death penalty; ii)
Right to humane treatment, and not to undergo cruel,
degrading, and unusual punishment, and right to a
fair trial in relation to the method of execution and
judicial remedies; iii) Right to humane treatment,
and not to undergo cruel, degrading, and unusual
punishment in relation to Mr. Bucklew’s time on
death row; and iv) The right to life and not to receive
cruel, infamous, or unusual punishment with respect
to an eventual execution.
A. Preliminary considerations on the
IACHR’s standard of review in cases
involving the death penalty
57. Before embarking on its analysis of the
merits in the instant case, the Inter-American
Commission considers it relevant to reiterate its
previous decisions regarding the heightened scrutiny
to be applied in cases involving the death penalty.
The right to life has received broad recognition as the
supreme human right and as a condition sine qua
non for the enjoyment of all other rights.
58. That gives rise to the particular importance of
the IACHR’s obligation to ensure that any
deprivation of life that may arise from the
enforcement of the death penalty strictly abides by
the requirements set forth in the applicable
instruments of the Inter-American human rights
32a
system, including the American Declaration.* That
heightened scrutiny is consistent with the restrictive
approach adopted by other international human
rights bodies when analyzing cases that involve the
imposition of the death penalty,™ and it has been set
out and applied by the Inter-American Commission in
previous capital cases brought before it.
“3 See, in this respect, [ACHR, The death penalty in the
Inter-American System of Human Rights: From restrictions to
abolition, OF A/Ser.L/V/1L. Doc. 68, December 31, 2011.
“ ~——s« See, for example: I/A Court H. R., Advisory Opinion OC-
16/99 (October 1, 1999), The Right to Information on Consular
Sai _ IACHR, Report No. 11/15, Case 12.833, Merits
para. 54; Report No. 44/14, Case 12.873, Merits (Publication),
33a
59. As the Inter-American Commission has
explained, this standard of review is the necessary
consequence of the specific penalty at issue and the
right to a fair trial and all attendant due process
guarantees, among others.” In the words of the
Commission:
due in part to its irrevocable and irreversible
nature, the death penalty is a form of
punishment that differs in substance as well as
in degree in comparison with other means of
punishment, and therefore warrants a
particularly stringent need for reliability in
determining whether a person is responsible
for a crime that carries a penalty of death.*”
60. The Inter-American Commission _ will
therefore review the petitioner's allegations in the
present case with a heightened level of scrutiny, to
ensure in particular that the rights to life, due
process and fair trial, among others set out in the
American Declaration have been respected by the
State. With regard to the legal status of the American
Declaration, the LACHR reiterates that:
[t}he American Declaration is, for the Member
States not parties to the American Convention,
the source of international obligations related
Edgar Tamayo Arias, United States, July 17, 2014, para. 127;
Report No. 57/96, Andrews, United States, [ACHR Annual
Report 1997, paras. 170-171.
% IACHR, The death penalty in the Inter-American
System of Human Rights: From restrictions to abolition,
OEA/Ser.L/V/IL. Doc. 68, December 31, 2011, para. 41.
37 ~1ACHR, Report No. 78/07, Case 12.265, Merits
(Publication), Chad Roger Goodman, The Bahamas, October 15,
2007, para. 34.
34a
to the OAS Charter. The Charter of the
Organization gave the [ACHR the principal
function of promoting the observance and
protection of human rights in the Member
States. Article 106 of the OAS Charter does
not, however, list or define those rights. The
General Assembly of the OAS at its Ninth
Regular Period of Sessions, held in La Paz,
Bolivia, in October, 1979, agreed that those
rights are those enunciated and defined in the
American Declaration. Therefore, the American
Declaration crystallizes the fundamental
principles recognized by the American States.
The OAS General Assembly has also repeatedly
recognized that the American Declaration is a
source of international obligations for the
member states of the OAS.**
61. Finally, and bearing in mind the State's
position, the Commission recalls that its review does
not consist of determining that the death penalty and
of itself violates the American Declaration. What this
section addresses is the standard of review of the
alleged human rights violations in the context of a
judicial process culminating in the death penalty.
B. Right to humane treatment, and not
to undergo cruel, degrading, and
unusual punishment and right to a
fair trial in relation to the method of
execution and judicial remedies
62. Article XVIII of the American Declaration
establishes the right to judicial protection as follows:
38 LACHR, Report No. 44/14, Case 12,873, Report
on Merits (Publication), Edgar Tamayo Arias, United States,
duly 17, 2014, para. 214.
35a
Every person may resort to the courts to
ensure respect for his legal rights. There
should likewise be available to him a simple,
brief procedure whereby the courts will protect
him from acts of authority that, to his
prejudice, violate any fundamental constitutional
rights.
63. Article XXVI of the American Declaration
establishes the right to due process as follows:
(...) Every person accused of an offense has
the right (...) not to receive cruel, infamous or
unusual punishment.
1. General considerations
64. The Commission notes that even though the
American Declaration does not prohibit the death
penalty, the State has a heightened obligation to
ensure that the method of execution does not
constitute cruel, infamous or unusual punishment.
In this regard, the U.N. Special Rapporteur on
torture and other cruel, inhuman or degrading
treatment or punishment observed that “[t|he fact
that a number of execution methods have been
deemed to constitute torture or CIDT, together with a
growing trend to review all methods of execution for
their potential to cause severe pain and suffering,
highlights the increasing difficulty with which a state
may impose the death penalty without violating
international law.”*
39 = =6The death penalty and the absolute prohibition of
Torture and Cruel, Inhuman, and Degrading Treatment or
Punishment, Juan E. Mendez, Human Right Brief, Volume 20,
Issue 1, Article 1, p. 3.
36a
65. Along these same lines, various supervisory
bodies have considered that an execution method is
incompatible with the right to humane treatment and
the prohibition of torture when it is not designed to
inflict the least possible suffering,“° and have raised
questions on the compatibility of the method of lethal
injection with the prohibition of torture.
66. The Special Rapporteur on Extrajudicial,
Summary or Arbitrary Executions has indicated with
respect to the methods for the execution of the death
penalty that
the extraordinary power conferred on the State
to end a person’s life through a firing squad,
hanging, lethal injection or other means to kill,
poses a dangerous risk of abuse. This power
can be kept under control only through the
public supervision of the punishment. It is a
commonplace that due process serves to protect
the accused. However, due process is also a
mechanism through which society ensures that
the punishments inflicted on their behalf are
fair.)
67. The Human Rights Committee has considered
that when the death penalty is applied by a State
40 ‘In that respect, guideline xi) of the “UE Guidelines on
Death Penalty” establishes that “Where capital punishment
occurs, it shall be carried out so as to inflict the minimum
possible suffering. It may not be carried out in public or in any
ised and updated ,
41 A/HRC/30/18, Human Rights Council, Capital punish-
ment and the implementation of the safeguards guaranteeing
protection of the rights of those facing the death penalty, Yearly
supplement of the Secretary-General to his quinquennial report
on capital punishment, para. 50.
37a
party for the most serious crimes, it must not only be
strictly limited in accordance with Article 6 of the
International Covenant on Civil and Political Rights
(ICCPR) but must also be carried out in such a way
as to cause the least possible physical and mental
suffering.42 The Committee has evaluated the methods
of execution of the death penalty in light of the
prohibition of torture and cruel, inhuman or
degrading treatment provided for in the ICCPR and
has concluded that the methods of stoning**, injection
of untested lethal drugs, gas chambers,“ burning and
burying alive,“ and public executions“ are contrary
to Article 7.47
68. With regard to the injection of untested lethal
drugs, in its concluding observations on the fourth
periodic report of the United States, the Human
Rights Committee noted with concern reports “about
the administration, by some states, of untested lethal
drugs to execute prisoners and the withholding of
information about such drugs.” The Committee
recommended that the State “ensure that lethal
42 Human Rights Committee, General Comment No: 20:
Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or
Degrading Treatment or Punishment), 10 March 1992, para. 6.
43 Human Rights Committee, Concluding Observations:
Iran (2011), para. 12.
44 Human Rights Committee, Communication No. 469/
1991, Ng v Canada, Views adopted on 5 Nov 1993, para. 16.4.
45 Human Rights Committee, Malawi Africa Association v
Mauritania, Report of the ACHPR of 11 May 2000, para. 120.
46 —_ Concluding Observations: Democratic Republic of Korea
(2001), para. 13.
47 See Human Rights Committee, Draft General Comment
No.36 on Article 6 of the International Covenant on Civil and
Political Rights, on the right to life, para 44.
38a
drugs used for executions originate from legal,
regulated sources, and are approved by the United
States Food and Drug Administration and that
information on the origin and composition of such
drugs is made available to individuals scheduled for
execution.”*8
69. Similarly, the Committee Against Torture has
expressed its concerned that death penalty executions
in the United States can be accompanied by severe
pain and suffering and has called on the State to
“carefully review its execution methods, in particular
lethal injection, in order to prevent severe pain and
suffering.”*9
70. The Special Rapporteur on torture and other
cruel, inhuman or degrading treatment or punishment
has considered that the method of lethal injection “as
currently administered, does not work as efficiently
as intended. Some prisoners take minutes to die and
others become very distressed. New studies conclude
that even if lethal injection is administered without
technical error, those executed may experience
suffocation, and therefore the conventional view of
lethal injection as peaceful and painless death is
questionable.”™© The Special Rapporteur has under-
lined that States must ensure that the method of
execution employed causes the least possible physical
48 Human Rights Committee, Concluding observations on
the fourth periodic report of the United States of America,
CCPR/C/USA/COA4, para. 8.
49 Committee against Torture, Conclusions and
recommendations of the Committee against Torture, United
States of America, 25 July 2006, CAT/C/USA/CO/2, para. 31.
50 _ Interim Report of the Special Rapporteur on torture and
other cruel, inhuman or degrading treatment or punishment,
A/67/229, 9 August 2012, para. 38.
39a
and mental suffering and has the burden of proof of
establishing that there are no more humane
alternatives available. °'
71. In capital cases the State has an enhanced
obligation to ensure that the person sentenced to
death has access to all the relevant information
regarding the manner in which he or she is going to
die. In particular, the convicted person must have
access to information related to the precise
procedures to be followed, the drugs and doses to be
used in the case of execution by lethal injection, and
the composition of the execution team as well as the
training of its members.®2
72. Any person subjected to the death penalty
must have the opportunity to challenge every aspect
of the execution procedure and such information is
necessary to file a challenge. The [ACHR notes in
this regard that the obligation of the State to provide
due process is not limited to the conviction and post-
conviction proceedings.®* Accordingly, the State has
the duty to inform the person sentenced to death, in a
timely manner, about the drug and method of
execution that will be used, so he or she is not
precluded from litigating the right to be executed in a
manner devoid of cruel and unusual suffering.
51 Interim Report of the Special Rapporteur on torture and
other cruel, inhuman or degrading treatment or punishment,
A/67/229, 9 August 2012, para. 80 (b).
52 ACHR, Report No. 53/13, Case 12.864, Merits
(Publication), Ivan Teleguz, United States, July 15, 2013, para.
123.
53° IACHR, Report No. 53/13, Case 12.864, Merits
(Publication), Ivan Teleguz, United States, July 15, 2013, para.
123.
40a
2. Analysis of the case
73. The Commission notes that it is undisputed
that Mr. Bucklew, sentenced to the death penalty in
1997, suffers from “cavernous hemangioma,” a rare
and congenital medical condition that causes large
tumors of malformed blood vessels to grow on his
head, face and neck. These tumors cause difficulty
breathing and rupture under stress. The petitioners
have argued before the Commission and the domestic
judicial authorities that, due to this condition, there
is a high risk that the application of Missouri's
protocol of execution for lethal injection will cause
excruciating suffering and pain to Mr. Bucklew.
Taking into account the standard of the U.S.
Supreme Court for these cases, Mr. Bucklew
proposed “nitrogen hypoxia” as the alternative that
could cause him less pain. As established in the
proven facts, domestic judicial proceedings regarding
this claim ended on March 6, 2018, with a decision of
the Eight Circuit Court of Appeals in favor of the
Missouri Department of Corrections and dismissing
Mr. Bucklew’s allegations. As of the date of the
present report, his execution is scheduled for March
20, 2018.
74. The LACHR must analyze whether the United
States provided an effective judicial remedy to Mr.
Bucklew, and whether its actions and omissions
during the judicial proceedings were compatible with
its international obligations under the American
Declaration, including strict compliance with the
right not to be subjected to torture and cruel,
infamous or unusual punishment.
75. From the judgments of June 15, 2017 and
March 6, 2018 described in the proven facts, the
Commission finds that they were clearly decided on
4la
the basis of the standards set out by the U-S.
Supreme Court in Glossip v. Gloss. The Commission
recalls that according to that judgment, the prisoner
has the burden to demonstrate three concurring
elements: (i) that the method to be applied “presents
a risk that is sure or very likely to cause serious
illness and needless suffering and give rise to
sufficiently imminent dangers;” (ii) the identification
of a “known and available alternative method” that
entails a lesser risk of pain; and (iii) that this
alternative is “feasible, readily implemented” and
would “in fact significantly reduce” the risk of severe
pain.
76. The Commission notes that the burden of
argumentation and proof with respect of each of the
three elements resides primarily with the prisoner,
and that the standard to be met to establish the three
concurring elements jointly considered is very high.
The LACHR considers that the effectiveness of a
remedy that imposes such burdefis in order to
succeed must be analyzed taking into account that, in
the instant case, access to justice is directly linked to
the prohibition of torture and cruel and inhumane
punishments. Therefore, it must be analyzed under
the undisputed premise that the prohibition of
torture is a peremptory norm of international law.
Also, that under the American Declaration and other
principal human rights instruments the use of
torture and cruel and inhumane punishment is
strictly prohibited. The United States has an
obligation to ensure that no such treatment is
imposed on persons under its jurisdiction, and this
has implications in the analysis of judicial
proceedings related to methods of execution that
could breach that obligation.
42a
77. The fact that the United States international
obligations do not prohibit the death penalty does not
mean that in can be imposed in a manner that could
entail torture or inhumane or cruel treatment. In
death penalty cases, in the event that the State
becomes aware that there is a significant risk that
the specific method of execution could cause a breach
of its international obligations, including peremptory
norms of international law, it is required to abstain
from proceeding with the execution under those
circumstances, regardless of whether there is an
alternative method.
78. In the instant case, the judicial proceedings
described in the proven facts reflect that, since 2014,
Mr. Bucklews defense has been presenting
information on the risk that he would suffer
excruciating pain upon the application of Missouri's
protocol of execution by lethal injection. These
arguments were supported by an expert opinion that
established that, if subjected to execution by the
existing protocol for lethal injection, during the
execution Mr. Bucklew “will be aware he is choking
on his own blood and in pain before the pentobarbital
renders him unconscious and unaware of pain.” The
expert indicated that the period of suffering in such
circumstances could last up to four minutes. The
Commission considers that this particular risk of
choking on his own blood, being aware of it, and for a
per» of up to four minutes, taking in consideration
the context of extreme stress and anxiety, would
constitute cruel and inhuman punishment. The
[ACHR finds that the severity of the suffering that
would be imposed under such circumstances could
amount to torture.
79. The Commission notes that the Missouri
Department of Corrections presented another expert
43a
opinion challenging, among other issues, the length of
the period of time during which Mr. Bucklew would
suffer. Because the district court ruled in favor of the
Department of Corrections at the stage of summary
judgment, the factual determinations were not fully
litigated. In light of the findings at the stage of
summary judgment, both the district court and the
Eighth Circuit Court of Appeals found that Mr.
Bucklew’s defense had not sufficiently established the
risk of needless suffering under the first requirement
of Glossip v. Gloss. The decisions of June 15, 2017
and March 6, 2018 indicate that the courts ruled in
favor of summary dismissal of the claims without a
full trial to explore and resolve these factual disputes,
taking into account that, in any case, Mr. Bucklew
failed to demonstrate the existence of an alternative
that would significantly reduce the level of pain.
80. The Commission highlights that the relevant
question under the American Declaration is not the
relative merits of lethal injection versus “nitrogen
hypoxia” but whether the method planned to execute
Mr. Bucklew will cause cruel and inhuman
punishment or torture. Consequently, the main issue
for analysis in light of the prohibition of cruel and
inhuman punishment and torture is precisely the
“factual disputes” with regard to the level and
likelihood of suffering that execution by means of
lethal injection would cause to Mr. Bucklew. The
[ACHR reiterates that, under peremptory norms of
international human rights law and as reflected in
the American Declaration, the United States has the
duty to abstain from carrying out an execution when
there is significant risk that it would breach the
prohibition of cruel and inhuman treatment or
torture. Compliance with this duty cannot be
conditioned on the existence of “alternatives.”
4Aa
81. In this case, a very concrete risk of extreme
suffering was presented to the courts by means of
allegations and an expert opinion on the particular
situation of Mr. Bucklew. Under international law,
judicial authorities had the obligation to respond with
due diligence to fully consider that risk before
authorizing that execution could proceed. The district
court identified the existence of factual disputes
regarding the extent to which and length of time
during which Mr. Bucklew would be aware of choking
and being unable to breathe and that those disputes
could not be resolved on summary judgment but only
through a trial. For purposes of analysis, the district
court “presume|d] that there is a substantial risk that
{Mr. Bucklew] will experience choking and an
inability to breathe for up to four minutes.” The
domestic courts, while accepting the existence of a
specific risk in the particular situation of Mr.
Bucklew, and expressly recognizing that key factual
questions could not be fully resolved by means of a
summary judgment, decided to proceed with the
execution because Mr. Bucklew’s defense had failed
to establish the existence of an alternative method
that would reduce the suffering.
82. The Commission considers that the summary
dismissal of such claims demonstrates a failure to act
with due diligence to fully examine them in light of
the prohibition of torture and cruel and inhuman
punishment. The Commission also observes that the
‘andards applic« effectively condition the granting
of relief from a situation of cruel and inhuman
treatment on a showing by the person concerned of a
feasible alternative that will cause less suffering.
What is required is a process that fully explores the
possibility of the risk of cruel and inhuman suffering.
Both the conditionality and the placing of the burden
45a
of proof on the affected person are inconsistent with
the guarantees required from an OAS Member State.
83. Taking into account the considerations above,
the Commission concludes that the United States did
not provide Mr. Bucklew with effective access to
judicial protection with regard to his right to be free
from torture and cruel and inhuman punishment in
the context of the application of lethal injection as the
method of execution. Therefore, the Commission
establishes that the State is responsible for the
violation of Articles XVIII and XXVI of the American
Declaration to the detriment of Mr. Bucklew.
C. Right of protection against arbitrary
arrest, to humane treatment, and not
to undergo cruel, infamous, or unusual
punishment, with respect to the
deprivation of liberty on death row
84. As indicated above, Article XXVI of the
American Declaration establishes that “Every person
accused of an offense has the right (...) not to receive
cruel, infamous or unusual punishment.”
85. In both international human rights law and
comparative law, the issue of long term deprivation of
liberty on death row, known as the death row
phenomenon, has been developed for decades, in light
of the prohibition of cruel, inhuman, or degrading
punishment in constitutions and in multiple
international treaties, including the American
Declaration of the Rights and Duties of Man (Articles
XXV and XXVI). Bearing in mind the equivalent
nature of the protections envisaged in this regard in
the American Declaration and other international
instruments, the Commission considers it relevant to
cite a number of developments that have taken place
46a
in the inter-American and other protection systems,
including the regional and United Nations systems.
86. To start with, the Commission takes note of
the concept of the death row phenomenon that the
United Nations Special Rapporteur on torture and
other cruel, inhuman or degrading treatment or
punishment has taken into consideration:
(...) it consists of a combination of circum-
stances that produce severe mental trauma
and physical deterioration in prisoners under
sentence of death. ™ Those circumstances
include the lengthy and anxiety-ridden wait for
reduced human contact and even the physical
conditions in which some inmates are held.
Death row conditions are often worse than
those for the rest of the prison population, and
prisoners on death row are denied many basic
human necessities.
87. In the case of Soering vs. The United
Kingdom, the European Court of Human Rights, in
its interpretation of the norm banning cruel,
inhuman, and unusual punishment and in reference
to the death penalty, pointed out that:
‘4 United Nations. Report of the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment of
punishment. 9 August 2012. A/67/279, para 42. Citing: Patrick
Hudson, “Does the death row phenomenon violate a prisoner's
rights under international law” European Journal of
International Law, vol. 11, No. 4 (2000), pp. 834-837.
55 United Nations. Report of the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment of
punishment. 9 August 2012. A/67/279. para 42.
47a
The manner in which it is imposed or executed,
the personal circumstances of the condemned
person and a disproportionality to the gravity
of the crime committed, as well as the conditions
of detention awaiting execution, are examples
of factors capable of bringing the treatment or
punishment received by the condemned person
within the proscription under Article 3. %
88. The European Court was referring to an
average of six to eight years on death row from
imposition of the penalty to execution and it noted
that proceedings and appeals subsequent to the
imposition of the death penalty themselves have a
bearing on the time spent on death row. The
European Court nonetheless stated that:
(...) just as some lapse of time between
sentence and execution is inevitable if appeal
safeguards are to be provided to the
condemned person, so it is equally part of
human nature that the person will cling to life
by exploiting those safeguards to the full.
However well-intentioned and even potentially
beneficial is the provision of the complex of
post-sentence procedures in Virginia, the
consequence is that the condemned prisoner
has to endure for many years the conditions on
death row and the anguish and mounting
tension of living in the ever-present shadow of
death. 57
56
No.
57
No.
ECtHR. Case of Soering v. The United Kingdom. Report
14038/88. Judgment, July 7, 1989. para. 104.
ECtHR. Case of Soering v. The United Kingdom. Report
14038/88. Judgment, July 7, 1989. para. 106.
48a
7.
For any prisoner condemned to death, some
element of delay between imposition and
execution of the sentence and the experience of
severe stress in conditions necessary for strict
incarceration are inevitable.
(...)
However, in the Court’s view, having regard to
the very long period of time spent on death row
in such extreme conditions, with the ever
present and mounting anguish of awaiting
execution of the death penalty, and to the
personal circumstances of the applicant,
especially his age and mental state at the time
of the offence, the applicant’s extradition to the
United States would expose him to a real risk
of treatment going beyond the threshold set by
Article 3.%
89. Furthermore, in a comparative law context,
the Commission notes that in 1993 the Privy Council
of the British House of Lords ruled on the issue of the
death row phenomenon in the Pratt and Morgan v.
Jamaica case, that:
In their Lordships’ view a State that wishes to
retain capital punishment must accept the
responsibility of ensuring that execution
follows as swiftly as practicable after sentence,
allowing a reasonable time for appeal and
consideration of reprieve. It is part of the
human condition that a condemned man will
take every opportunity to save his life through
use of the appellate procedure. If the appellate
No. 14038/88. Judgment, July 7, 1989. para. 111.
ECtHR. Case of Soering v. The United Kingdom. Report
49a
procedure enables the prisoner to prolong the
appellate hearings over a period of years, the
fault is to be attributed to the appellate system
that permits such delay and not to the prisoner
who takes advantage of it. Appellate procedures
that echo down the years are not compatible
with capital punishment. The death row
phenomenon must not become established as a
part of our jurisprudence.
(...)
The total period of delay is shocking and now
amounts to almost fourteen years. It is double
the time that the European Court of Human
Rights considered would be an infringement of
Article 3 of the European Convention and their
Lordships can have no doubt that an execution
would now be an infringement of section 17(1)
of the Jamaican Constitution.
To execute these men now after holding them
in custody in an agony of suspense for so many
years would be inhuman punishment within
the meaning of section 17(1).
=
These considerations lead their Lordships to
the conclusion that in any case in which
execution is to take place more than five years
after sentence there will be strong grounds for
believing that the delay is such as to constitute
“inhuman or degrading punishment or other
treatment”.
6 Pratt and Morgan v. The Attorney General for Jamaica
and another (Jamaica) [1993] UKPC 1 (2nd November, 1993),
paragraphs 73, 74, 75, and 84.
50a
90. In the same vein, the Supreme Court of
Uganda considered in 2009 that “to execute a person
after a delay of three years in conditions that were
not acceptable by Ugandan standards would amount
to cruel, inhuman punishment.” For its part, the
Supreme Court of Zimbabwe has pointed out since
1993 that “having regard to judicial and academic
consensus concerning the death row phenomenon, the
prolonged delays and the harsh conditions of
incarceration, a sufficient degree of seriousness had
been attained to entitle the applicant to invoke the
protection concerning the prohibition of torture and
inhuman or degrading punishment.” That Supreme
Court maintained that “52 and 72 months,
respectively, on death row constituted a violation of
the prohibition of torture and would render an actual
execution unconstitutional.”®!
91. As established under proven facts, Russell
Bucklew has been deprived of his liberty on death
row from 1997 to the date of the present report, i.e.,
for more than 20 years. The Commission notes that
the time spent by Russell Bucklew on death row
greatly exceeds the length of time that other
international and domestic courts have characterized
as cruel, inhuman, and degrading treatment. The
very fact of spending 20 years on death row is, by any
account, excessive and inhuman. Consequently, the
United States is responsible for violating, to the
detriment of Russell Bucklew, the right to humane
©) Supreme Court of Uganda in Attorney General v. Susan
Kigula and 417 others (Constitutional Appeal No. 3 of 2006),
2009.
61 Judgment of the Supreme Court of Zimbabwe of 24 June
1993 in Catholic Commissioner for Justice and Peace in
Zimbabwe v. Attorney General (4) SA 239 (ZS).
5la
treatment, and not to receive cruel, infamous, or
unusual punishment established in Article XXVI of
the American Declaration.
D. The right to life and not to receive
cruel, infamous, or unusual punish-
ment with respect to the eventual
execution of Russell Bucklew
92. Article I of the American Declaration sets
forth the right to life, liberty and personal security,
as follows: “Every human being has the right to life,
liberty and the security of his person.” The
Commission already cited the relevant part of Article
XXVI which also applies to the analysis in this
section.
93. The Commission reiterates that it is not
competent to review judgments handed down by
domestic courts acting within their spheres of
competence and with due judicial guarantees. In
principle that is because the [ACHR does not have
the authority to superimpose its own interpretations
on the assessment of facts made by national courts.
The fourth instance formula, however, does not
preclude the Commission from considering a case in
which the petitioners allegations entail a possible
violation of any of the rights set forth in the
Declaration.*? This authority is heightened in cases
involving imposition of the death penalty, given its
irreversibility.
94. As indicated above, the Inter-American
Commission considers that it is incumbent upon the
national courts, not the Commission, to interpret and
62 See, mutatis mutandis, [ACHR, Report No. 57/96, Case
11.139, William Andrews, United States, December 6, 1996.
52a
apply national law. Nevertheless, the [ACHR must
ensure that any deprivation of life resulting from
imposition of the death penalty complies with the
requirements of the American Declaration.“
95. Throughout this report, the Commission
established that Mr. Bucklew did not have access to
an effective judicial remedy to challenge the method
of execution and its specific consequences for his right
to humane treatment and not to receive cruel,
infamous or unusual punishment. The Commission
also established that this violation was particularly
serious, taking into account the actual risk of
excruciating suffering in the event of the application
of the lethal injection protocol. Moreover, the
Commission already established that the more than
20 years that Mr. Bucklew has been in death row
constitute cruel and inhuman treatment.
96. Under these circumstances, the [ACHR has
maintained that executing a person after proceedings
that were conducted in violation of his rights would
be extremely grave and constitute a deliberate
violation of the right to life established in Article I of
the American Declaration.™ Also, taking into account
the specific circumstances of this case, the Commission
considers sufficiently established that the execution
of Mr. Bucklew, taking into account his medical
condition, presents a substantial risk of imposing
cruel and inhuman suffering.
63 [ACHR, Report No. 53/13, Case 12.864, Merits
(Publication), [van Teleguz, United States, July 15, 2013, para.
129.
64 IACHR, Report No. 11/15, Case 12.833, Merits
(Publication), Félix Rocha Diaz, United States, March 23, 2015,
para. 106.
53a
97. In light of the foregoing and taking into
account the determinations made throughout this
report, the [ACHR concludes that the execution of
Russell Bucklew would constitute a serious violation
of his rights to life and not to receive cruel, infamous,
or unusual punishment established in Articles I and
XXVI of the American Declaration.
Vv. CONCLUSIONS AND
RECOMMENDATIONS
98. Based on the legal and factual considerations
set forth in this report, the Inter-American
Commission concludes that the United States is
responsible for violating Articles I (right to life,
liberty, personal security and integrity), XVIII (right
to a fair trial) and XXVI (right to due process of law)
of the American Declaration to the detriment of
Russell Bucklew. If Russell Bucklew were to be
executed, the State would also be responsible for a
serious and irreparable violation of the fundamental
rights to life and not to receive cruel, infamous, or
unusual punishment protected by Articles | and
XXVI of the American Declaration.
99. Russell Bucklew is the beneficiary of
precautionary measures adopted by the Inter-
American Commission under Article 25 of its Rules of
Procedure. The Inter-American Commission reaffirms
to the State that carrying out a death sentence in the
circumstances of the present case would not only
cause irreparable harm to the person but would also
deny his right to petition the Inter-American human
rights system and to obtain an effective result, and
that such a measure would be contrary to the
fundamental human rights obligations of the United
States as a member of the OAS pursuant to the
54a
Charter of the Organization and the instruments
deriving from it.
Accordingly,
THE INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS RECOMMENDS
THAT THE UNITED STATES:
1. Grant Russell Bucklew effective relief. Taking
into account the conclusions of the LACHR on the lack
of an effective remedy to challenge the method of
execution, the time Russell Bucklew has already been
held on death row, his rare medical condition and the
significant risk, due to that condition, that his
execution would cause excessive suffering incompatible
with the American Declaration, the Commission
recommends that his sentence be commuted, that he
be transferred out of death row, and that the State
ensure that his conditions of detention are compatible
with his human dignity.
2. Review its laws, procedures, and practices to
ensure that the persons sentenced to the death
penalty have access to effective judicial remedies to
65 See: LACHR, Report No. 81/11, Case 12.776, Merits,
Jeffrey Timothy Landrigan, United States, July 21, 2011, para.
66; Report No. 52/01, Case No. 12.243, Juan Radl Garza, United
States, Annual Report of the [ACHR 2000, para. 117; LACHR,
Fifth Report on the Situation of Human Rights in Guatemala,
Doc.OEA/Ser.L/V/IL. 1 1doc.21irev. (April 6, 2001) paras. 71 and
72. See also: International Court of Justice, Case re. the Vienna
Convention on Consular Relations (Germany v. United States of
America), Request for the Indication of Provisional Measures,
Order of March 3, 1999, General List, No. 104, paras. 22-28;
United Nations Human Rights Committee, Dante Piandiong et
al. v. Philippines, Communication No. 869/1999, UN Doc.
CCPR/C/70/D/869.
55a
challenge the possible impact of the method of
execution on their fundamental rights in accordance
with the standards set forth in this merits report.
3. Given the violations of the American
Declaration the LACHR has established in the
present case and in others involving application of
the death penalty, the Inter-American Commission
also recommends to the United States that it adopt a
moratorium on the execution of persons sentenced to
death.
Approved by the Inter-American Commission on
Human Rights on the 18“ day of the month of March,
2018. (Signed): Esmeralda Arosemena Bernal de
Troitifio, First Vice President; Luis Ernesto Vargas
Silva, Second Vice President; Francisco José
Eguiguren, Joel Hernandez, Antonia Urrejola and
Flavia Piovesan, Commissioners.
The undersigned, Paulo Abréo, Executive
Secretary of the Inter-American Commission on
Human Rights, in keeping with Article 49 of the
Commission’s Rules of Procedure, certifies that this is
an accurate copy of the original deposited in the
archives of the [ACHR Secretariat.
Paulo Abrao
Executive Secretary
66 See in this regard, IACHR, The death penalty in the
Inter-American Human Rights System: From restrictions to
abolition, OF A/Ser.L/V/I1L. Doc 68, December 31, 2011.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.