Bucklew v. Precythe, No. 17-3052 (8th Cir. 2018)
Annotate this CaseRussell Bucklew was sentenced to death after being convicted of murder, kidnapping, and rape. At issue on appeal was whether the Eighth and Fourteenth Amendments, as applied, barred Missouri officials from employing a procedure that was authorized by Missouri statute to execute Bucklew. The Eighth Circuit held that the summary judgment record contained no basis to conclude that Bucklew's risk of severe pain would be substantially reduced by use of nitrogen hypoxia instead of lethal injection as the method of execution. Therefore, Bucklew failed to establish the second prong of the Glossip/Baze standard. In this case, Bucklew failed to establish that lethal injection, as applied to him, constituted cruel and unusual punishment under the Eighth and Fourteenth Amendments. Finally, the district court did not err in denying Bucklew's requests for discovery relating to two members of the lethal injection execution team.
Court Description: Loken, Author, with Wollman and Colloton, Circuit Judges] Prisoner case - Death Penalty. For the prior history of the case, see Bucklew v. Lombardi, 565 Fed. Appx. 562 (8th Cir. 2014); Bucklew v. Lombardi, 783 F.3d 1120 (8th Cir. 2015). In light of the evidence which showed that Bucklew's proposed method of execution - nitrogen hypoxia - would result in unconsciousness in approximately the same amount as Missouri's proposed method of execution - pentobarbital injection - the district court correctly concluded that Bucklew failed to satisfy his burden to provide evidence "establishing a known and viable alternative that would significantly reduce a substantial risk of severe pain;" like the district court, this court concludes the summary judgment record contains no basis to conclude that Bucklew's risk of severe pain would be substantially reduced by his proposed method of execution, and Bucklew failed to establish the second prong of the Baze/Glossip standard; no error in denying Bucklew's request for discovery as to two members of the lethal injection team as the court will not assume that the members are not qualified for their positions; the risk that something may go wrong in an execution does not give rise to an Eighth Amendment violation and the district court's ruling was consistent with this court's instruction on remand that Bucklew may not be permitted to supervise every step of the execution process; the Baze/Glossip evaluation must be based on the as-applied pre-execution protocol, assuming that those responsible for carrying out the sentence are competent and qualified to do so, and that the procedure will go as intended. Judge Colloton, dissenting on the ground that "taking the evidence in the light most favorable to Bucklew...a factfinder could conclude that nitrogen gas would render Bucklew insensate more quickly than pentobarbital and would thus eliminate the risk that he would experience prolong feelings of choking or suffocation; as there is a genuine issue of material fact, it was error to grant the defendant's motion for summary judgment, and the matter should be remanded for further proceedings. [ March 05, 2018
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