Supreme Court Commentaries
capital punishment, lethal injection, Eighth Amendment
Constitutional Law | Supreme Court of the United States
Once again, the Supreme Court of the United States has an opportunity to determine the extent to which death-row inmates can bring as-applied challenges to the states’ method of execution and prevent possible botched executions. In Bucklew v. Precythe, the Court will confront the assumptions that the execution team is equipped to handle any execution and that the procedure will go as planned. Additionally, the Court will determine whether the standard articulated in Glossip v. Gross, which requires inmates asserting facial challenges to the states’ method of execution to plead a readily available alternative method of execution, further extends to inmates asserting as-applied challenges. This commentary argues that inmates launching an as-applied challenge to the state’s method of execution should be given relevant discovery regarding the execution teams’ qualifications, that inmates should not have to provide a detailed alternative method of execution, and that summary judgment decisions should be made after considering the record as a whole. Only then will inmates be afforded complete and fair access to the protections of the Eighth Amendment in the interest of avoiding more botched executions. The Supreme Court should remand to the lower court for a further evidentiary hearing in Bucklew’s case to determine whether execution by lethal gas significantly reduces a substantial risk of severe pain compared to lethal injection.
Renata Gomez, Bucklew v. Precythe: The Power of Assumptions and Lethal Injection, 14 Duke Journal of Constitutional Law & Public Policy Sidebar 75-95 (2019)