Amicus Curiae Brief — Bucklew v. Precythe, 139 S. Ct. 306 (2018) (No. 17-8151)

Supreme Court brief2018

Ask Donna

What actually matters in this document.

Text

No. 17-8151

IN THE

Supreme Court of the United States

RUSSELL BUCKLEW,

Petitioner,

ANNE L. PR *CYTHE, DIRECTOR,

MISSOURI DEPARTMENT OF CORRECTIONS, et ai.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

BRIEF OF AMICI CURIAE

FORMER CORRECTIONS OFFICIALS

SUPPORTING PETITIONER

Tejinder Singh

Counsel of Record

Erica Oleszezuk Evans

GOLDSTEIN & RUSSELL, P.C.

7475 Wisconsin Ave.

Suite 850

Bethesda, MD 20814

202.362.0636

tsingh@goldsteinrussell.com

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ..................000s0scsscessssesseees ii

INTEREST OF THE AMICI CURIAE ....................... 1

SUMMARY OF ARGUMENT? .....0.0.......cccccccceceeeeeeeeeees 3

IE rentcciennisabenntntscscecesocsecencanessastncastenntusemeesie 4

TABLE OF AUTHORITIES

Constitutional Provisions

Se IT, II, We cearintttnnicteeteddticncececcestescccnces

Rules

SI GB Bil Sie cecnneraterenennenasensesintanssinmucsmmensscccsececes

Other Authorities

Allen Ault, Ordering Death in Georgia Prisons,

Newsweek (Sept. 25, 2011),

https://www.newsweek.com/ordering-death-

Patrick Beach, What Ever Happened to.. .

Walls Unit Warden Jim Willett, Austin

American-Statesman (Feb. 23, 2013),

https://www.statesman.com/news/local/what-

ever-happened-walls-unit-warden-jim-willett/

Lauren M. De Lilly, Note, “Antithetical to

Human Dignity”: Secondary Trauma,

Evolving Standards of Decency, and the

Unconstitutional Consequences of State-

Sanctioned Executions,

23 S. Cal. Interdisc. L.J. 107 (2014)..................

Amanda Gil et al., Secondary Trauma

Associated with State Executions: Testimony

Regarding Execution Procedures,

34 J. Psychiatry & L. 25 (2006)..........000000000......

Bernard E. Harcourt, The Barbarism of

Alabama’s Botched Execution, N.Y. Rev.

Books (Mar. 13, 2018),

http//www .nybooks.com/daily/20 18/03/13/the-

barbarism-of-alabamas-botched-execution/ ......

soneia 1

Bob Herbert, Jn America; Inside the Death

House, N.Y. Times (Oct. 9, 2000),

https//www.nytimes.com/2000/10/09/opinion/

in-america-inside-the-death-house.html................. 7

Ron McAndrew, Florida Must Abolish Flawed

Death Penalty, Orlando Sentinel

(May 24, 2009),

http-//articles.orlandosentinel.com/2009-05-

24/news/edp_1_capital-punishment-death-

Tolly Moseley, The Enforcers of the Death

Penalty, Atlantic (Oct. 1, 2014),

https-//www.theatlantic.com/health/archive/

2014/10/the-enforcers-of-the-death-

TTT ia occiediniaihidietidandaedidiiindsibaininuncdtentensentauenen 4

Selene Nelson, How It Feels To Kill 62 People,

ThinkProgress (July 15, 2015),

https-//thinkprogress.org/how-it-feels-to-kill-

62-people-963fPOL7 Sad ...............ccccccceceeeeeeeeeeeeees 6,7

Michael J. Osofsky et al., The Role of Moral

Disengagement in the Execution Process,

29 L. & Hum. Behav. 371 (2005)...................cccccc0e0e 4

Mike Pearl, What It’s Like To Be a Death Row

Executioner in America, VICE (May 27, 2015),

https://www.vice.com/en_us/article/bnpxp5/

how-do-you-get-a-job-as-an-executioner-in-

Ivan Solotaroff, The Last Face You'll Ever See:

The Private Life of the American Death

IIIT Gnncisunciabiiciitinadattanatetidcstumadpbonsticcnesesinaiant 6

Frank Thompson, Ex-warden: Death Penalty

Doesn’t Make Guards Safer, Delaware Online

(Apr. 1, 2015),

https-//www.delawareonline.com/story/

opinion/contributors/20 15/04/0 1/ex-warden-

death-penalty-make-guards-safer/70791272/.........

Semon Frank Thompson, What I Learned from

Executing Two Men, N.Y. Times (Sept. 16,

2016), https://Awww.nytimes.com/2016/09/18/

opinion/sunday/what-i-learned-from-

executing-two-men. html ....................c0-ccceeeeeeeeeeeeeees

Bruce Weber, Donald Cabana, Warden Who

Loathed Death Penalty, Dies at 67, N.Y. Times

(Oct. 13, 2013), https:/Awww.nytimes.com/

2013/10/13/us/donald-cabana-warden-who-

loathed-death-penalty-dies-at-67 html ...................

INTEREST OF THE AMICI CURIAE'

Amici Curiae are former corrections officials,

many of whom have (firsthand ' experience

administering the death penalty. Amici submit this

brief supporting petitioner to emphasize the heavy

burden that executions place on the people who must

carry them out—a burden that becomes intolerable

when, as here, there is a grave risk that a botched

execution will result in excessive pain and suffering.

They urge the Court to consider not only the

immorality of executing a man using cruel and

unusual means, but also the harm to public servants

who participate in such an act. Amici are:

Frank AuBuchon

Criminal Justice Consultant; Texas Department of

Criminal Justice-Institutional Division (1981-2007)

Allen Ault

Dean, Eastern Kentucky University College of Justice

and Safety (2003-2015); former Chief, National

Institute of Corrections; former corrections

commissioner in Colorado, Georgia, and Mississippi

' Pursuant to Supreme Court Rule 37.6, counsel for amici

curiae states that no counsel for any party authored this brief in

whole or in part, and no such counsel or party, and no person

other than amici and their counsel, made a monetary

contribution intended to fund the preparation or submission of

consent to the filing of amicus curiae briefs.

In the spirit of full disclosure, counsel for amici previously

represented petitioner Russell Bucklew—but that representation

ceased years ago.

Dave Cook

Director, Oregon Department of Corrections (1995-

2002)

Jerry Givens

Captain, Virginia Department of Corrections (1974-

1999); Executioner (1982-1999)

Martin Horn

Secretary, Corrections of Pennsylvania (1995-2000);

Commissioner, New York City Department of

Correction (2003-2009); Commissioner, New York City

Department of Probation (2002-2009)

Steven Martin

Expert, U.S. Department of Justice, Civil Rights

Division (1993-2008); Former Corrections Official,

Texas Department of Corrections

Ron McAndrew

Prison and Jail Consultant-Expert Witness (2005-

present); Director, Orange County Jail (2001-2002);

Warden, Florida State Prison (ascended the uniform

ranks) (1978-2001)

Doris Parlette

Regional Manager, Indiana Department of Child

Services (2007-2008); Superintendent, Indiana

Department of Correction (1990-2007)

Gayle Ray

Commissioner, Tennessee Department of Correction

(2010-2011)

Chase Riveland

Secretary, Washington Department of Corrections

(1986-1997); Executive Director, Colorado

Department of Corrections (1983-1986)

Frank Thompson

Superintendent, Oregon State Penitentiary (1994-

1998)

Eldon Vail

Secretary, Washington Department of Corrections

(2007-2011); Deputy Secretary, Washington

Department of Corrections (2000-2007)

Roger Werholtz

Interim Executive Director, Colorado Department of

Corrections (2013); Secretary, Kansas Department of

Corrections (2002-2010); Deputy Secretary, Kansas

Department of Corrections (1987-2002)

Rex Zent

Various Positions, Ohio Department of Rehabilitation

and Correction (1970-1997); Warden, North Central

Correctional Institution (1994-1995); Warden,

Madison Correctional Institution (1989-1994)

SUMMARY OF ARGUMENT

Participating in executions places a tremendous

weight on the shoulders of the execution team,

including corrections officers, prison chaplains, the

medical team, the executioner, and the wardens or

other officials who must oversee the process. Even

when everything goes according to plan, standing face-

to-face with an inmate and taking his life is a

substantial burden to carry. The psychological

consequences of this burden are well-documented and

can be severe. When, as here, an execution is unlikely

to go smoothly, and is likely to result in unnecessary

pain and suffering, the burden of participation

becomes unbearable. Such executions do not serve the

State’s interests in finality or justice. Instead, they

make public servants parties to barbarism. This Court

should recognize that an execution under these

circumstances violates the Eighth Amendment's

prohibition against cruel and unusual punishment,

and it should reverse the judgment below.

Executions take a steep toll on the people who

oversee and perform them. A corrections employee's

principal duty is to care for the inmates under his or

her charge to the best of his or her ability, and

consistent with the law. Intentionally taking human

life runs counter to that duty, as well as society's basic

norms—even if the person in question has committed

a horrible crime. Moreover, an execution is one of the

most solemn and weighty events in the justice system.

The procedures are complex, and the cost of error is

tremendous. The weight of the situation lands

squarely on the execution teams’ shoulders. Even in

the best of circumstances, it is difficult to bear.

The psychological consequences of carrying this

burden are well-documented, and can be severe. The

most fortunate cope by distancing themselves from

their humanity, relying on the legal process and a

sense of duty to shield their psyche. See Tolly Moseley,

The Enforcers of the Death Penalty, Atlantic (Oct. 1,

J. Osofsky et al., The Role of Moral Disengagement in

the Execution Process, 29 L. & Hum. Behav. 371, 385

(2005). Others fail to manage the trauma, resorting to

alcohol or experiencing symptoms of post-traumatic

stress including depression, flashbacks, nightmares,

pain with no known physical origin, and dissociative

disorders. See Lauren M. De Lilly, Note, “Antithetical

to Human Dignity”: Secondary Trauma, Evolving

Standards of Decency, and the Unconstitutional

Consequences of State-Sanctioned 2g

23 S. Cal. Interdise. L.J. 107, 123-24 (2014).

have even committed suicide. Panay sendin siy- Arg

Secondary Trauma Associated with State Executions:

Testimony Regarding Execution Procedures,

34 J. Psychiatry & L. 25, 33 (2006).

Persona! accounts of the trauma associated with

performing executions are revealing. Dr. Allen Ault

oversaw five executions in the State of Georgia. He

explained that:

Those of us who have participated in

executions often suffer something very much

like posttraumatic stress. Many turn to

alcohol and drugs. For me, those nights that

weren't sleepless were plagued by nightmares.

My mother and wife worried about me. I tried

not to share with them that I was struggling,

but they knew I was.

Allen Ault, Ordering Death in Georgia Prisons,

Newsweek (Sept. 25, 2011), https://Awww .newsweek.com/

ordering-death-georgia-prisons-67483. Citing the

psychological cost of participating in executions,

Dr. Ault resigned his post and became an advocate

against the death penalty. Ibid.

Donald Cabana, a former warden at the

Mississippi State Penitentiary (better known as

Parchman Farm), often stated that “[t/here is a part of

the warden that dies with his prisoner.” Bruce Weber,

Donald Cabana, Warden Who Loathed Death

Penalty, Dies at 67, N.Y. Times (Oct. 13, 2013),

https//www .nytimes.com/20 13/10/13/us/donald-cabana-

warden-who-loathed-death-penalty-dies-at-67. html. He

commented that after an execution, “I was in the

shower two hours later, scrubbing and scrubbing.

Then I showered again. I just couldn’t get the sweat

and grime off me to the point where I felt clean enough

to go to sleep.” Ivan Solotaroff, The Last Face You'll

Ever See: The Private Life of the American Death

Penalty 201 (2001). Years later: “It hasn’t come off me

yet.” Ibid. The trauma drove Cabana from his career

in corrections, and he became a professor of

criminology and an advocate against the death penalty.

Frank Thompson, a veteran, former law

enforcement official, and former superintendent of

Oregon’s state prisons, is “continuously being

informed, by those who have been personally and

directly involved in executing someone, of the awful,

lifelong repercussions that can occur as a result in

carrying out executions.” Frank Thompson,

Ex-warden: Death Penalty Doesn't Make Guards

Safer, Delaware Online (Apr. 1, 2015),

safer/70791272/. He stated that “[mjany of us who have

taken part in this process live with nightmares .

Correctional officers who carry out execution can

suffer from post-traumatic stress, drug and alcohol

addiction, and depression.” Ibid.

Jerry Givens, who carried out 62 executions for

the Commonwealth of Virginia, explained that in

order to do the job, “lylou have to transform yourself

into that person that will take a life. Every time an

execution was announced, it meant that I had to

prepare myself mentally to kill.” Selene Nelson, How

It Feels To Kill 62 People, ThinkProgress (July 15,

2015), https-//thinkprogress.org/how -it-feels-to-kill-62-

people-963ff9f7 3afd/. Givens elaborates that “|ylou can’t

tell me I can take the life of people and go home and

be normal. ... It took a lot out of me to do it.” Ibid.

Givens also noted that “[aJll staff who volunteer to be

part of an execution feel the stress,” and he “pointed

out that PTSD can reach all members of an executica

team, no matter how indirect their involvement.” Mike

Pearl, What It’s Like To Be a Death Row Executioner

in America, VICE (May 27, 2015), https//www.vice.com/

en_us/article/bnpxp5/how-do-you-get-a-job-as-an-exe-

cutioner-in-america-526.

Jim Willett, who oversaw 89 executions in Texas,’

had “no doubt that [executions are] disturbing for all

of us. You don’t ever get used to it.” Bob Herbert, Jn

America; Inside the Death House, N.Y. Times (Oct. 9,

2000), https://www.nytimes.com/2000/10/09/opinion/

in-america-inside-the-death-house.html. He was

forced to “wonder whether people really understand

what goes on down here and the effect it has on us.”

Ibid. Also in Texas, Fred Allen, who participated in

130 executions as a member of the team that strapped

inmates to the gurney, had a spontaneous breakdown

as he reflected on his career. Jbid. And Ron McAndrew,

who participated in eight executions in Florida and

Texas, stated that “[a/t night I would awaken to

visions of executed inmates sitting on the edge of my

bed.” Ron McAndrew, Florida Must Abolish Flawed

Death Penalty, Orlando Sentinel (May 24, 2009),

* Patrick Beach, What Ever Happened to ... Walls Unit

Warden Jim Willett, Austin American-Statesman (Feb. 23, 2013),

https//www statesman.com/news/local/what-ever- happened walls

http-//articles.orlandosentinel.com/2009-05-24/news/

edp_1_capital-punishment-death-row-death-penalty.

These examples illustrate the trauma that

corrections employees undergo when participating in

executions, even when an execution goes as smoothly

as possible.

This case presents heightened risk because one of

the principal sources of anxiety for corrections officials

is the risk that an execution will be botched. Such

situations not only impugn the competence of the

people involved, but also make it impossible for them

to dissociate from the horror of their task. Frank

Thompson explained that he could not “put into words

the anxiety I felt about the possibility of a botched

procedure,” and stated how—even after executions

went as planned—the anxiety caused multiple staff

members to have trouble sleeping, to ask not to serve

as executioners again, or to seek employment

elsewhere. Semon Frank Thompson, What I Learned

from Executing Two Men, N.Y. Times (Sept. 16, 2016),

https://www.nytimes.com/20 16/09/18/opinion/sunday/

what-i-learned-from-executing-two-men.html.

These fears are well founded in light of recent

botched attempts at lethal injection. In the attempted

execution of Doyle Lee Hamm—an inmate whose veins

were compromised by cancer treatments—corrections

employees spent hours attempting to access a vein

without success. In the process, the State’s refusal to

call off the execution effectively forced its employees to

torture Hamm, inflicting multiple puncture wounds

that left Hamm covered in blood, suffering from an

infection and a limp, with pooling of blood in his

extremities. Bernard E. Harcourt, The Barbarism of

Alabama’s Botched Execution, N.Y. Rev. Books (Mar.

13, 2018), http:/Awww.nybooks.com/daily/20 18/03/13/

the-barbarism-of-alabamas-botched-execution/. Hamm’s

story is the most recent and one of the most extreme,

but it is by no means uncommon. The botched

execution of Clayton Lockett is another prominent

example of lethal injection gone horribly wrong—and

indeed, since 1985, “there have been some two dozen

reported cases in which executioners have struggled to

find a usable vein.” Ibid.

That very same risk looms large in this case.

Mr. Bucklew’s medical condition is rare, complex,

extremely dangerous, and directly affects both his

breathing and his blood vessels. As petitioner’s brief

explains, the State’s medical team—which will be

responsible for placing the needles in any lethal

injection scenario—will have woefully inadequate

information about that condition. Pet. Br. 7-8, 29, 32-

34. It is unclear that the State has any reasonable plan

for dealing with the specific complications in this

case—including the need to keep Mr. Bucklew out of a

supine position; the need to account for potential

obstruction of his airway; the need to avoid bleeding;

the challenges of accessing peripheral veins, and, if

that fails, the difficulty of using a central line

procedure. Id. at 8-15. There is a _ substantial

probability that the process will be lengthy and will

end only when Mr. Bucklew either suffocates or

drowns in his own blood. Jd. at 12-13, 43-44. Thus, the

risk that public employees will be forced to participate

in a gruesome, unconstitutional execution is

intolerably high.

This Court simply should not countenance that

risk. Regardless of Mr. Bucklew’s crime, there is no

reasonable justification for allowing the State to force

its public servants to administer lethal injection under

these circumstances. The medical team and officers

cannot have been properly trained for it, the objective

evidence shows that the risk of a botched execution is

extremely high, and the likely consequence of that

botched execution will be permanent psychological

scarring for everybody directly involved. That result

does not further the State’s interest in finality and

justice, for it would only create new wounds by

perpetrating a gross injustice. Moreover, such an

execution is not what the Founders envisioned wien

they adopted the Eighth Amendment—and under any

standard of basic decency, the law cannot allow it.

CONCLUSION

The judgment below should be reversed.

Respectfully submitted,