Rare execution stay may indicate change

WASHINGTON – The Supreme Court seemed to share some other people’s second thoughts when it stopped the planned execution this week of a Missouri death row inmate.

By granting a last-ditch plea Wednesday night, justices at a minimum provided Russell Bucklew with another opportunity to argue against lethal injection. His case may be a peculiar one unique to his medical condition.

More broadly, though, the high court’s unusual decision marked one of the few times that justices have stayed an execution, and it hinted at the possibility that the court is joining others in intensifying scrutiny of the death penalty.

“We want the states to get it right,” Richard Dieter, the executive director of the nonprofit Death Penalty Information Center, said Thursday, “and now the states have a bit more of a burden to show they’re getting it right, given what’s happened in some cases.”

Bucklew, who has a health condition that could complicate lethal injection, succeeded – for the moment – where most fail.

Twenty-two other death row inmates have asked the Supreme Court to stay their executions since the court’s term began in October, a McClatchy review shows. The court, while sometimes divided, rejected all those requests. Last term, 31 death row inmates sought Supreme Court stays of execution. None succeeded, McClatchy found.

The Justice Department also may be paying closer attention to state-sponsored death.

Responding to a gruesome execution April 29 in Oklahoma, when inmate Clayton Lockett took 43 minutes to die, President Barack Obama ordered Attorney General Eric Holder to analyze U.S. execution practices.

Obama, who has taught constitutional law, said he supported the death penalty for “certain circumstances,” including mass killings and the deaths of children. But he noted there have been “significant problems,” including alleged racial bias, uneven application and executions of inmates later found to be innocent.

“All these, I think, do raise significant questions about how the death penalty is being applied,” said Obama, adding, “I think we do have to, as a society, ask ourselves some difficult and profound questions around these issues.”

In courthouses nationwide, judges and juries are sentencing markedly fewer criminals to death. The 80 death sentences imposed last year were less than half the number imposed in 2002, according to the Death Penalty Information Center. In 1998, courts imposed the death sentence 294 times.

So far, neither the Supreme Court, the Obama administration nor Congress questions the fundamental principle that certain criminals deserve execution. The court ruled in 1976, in a Georgia double-murder case, that the death penalty per se didn’t violate the Eighth Amendment’s protections against cruel and unusual punishment.

The precedent stands, even for the court’s liberals.

In December, for instance, Justice Sonia Sotomayor wrote a 9-0 opinion reinstating the death penalty for Kansas inmate Scott Cheever. Cheever, convicted of killing Greenwood County Sheriff Matthew Samuels in 2005, had sought to challenge a prosecution witness. While his case wasn’t about the constitutionality of the death penalty, the unanimous decision against him assumed that the practice was constitutionally legitimate.

Thirty-two states allow it and more than 3,000 inmates are on death row nationwide, led by California, Florida and Texas. How the death penalty is applied, though, provokes continuing debate.

In 2002, the Supreme Court said the “mentally retarded” couldn’t be executed. Soon the court will rule on a follow-up question, challenging how Florida determines an inmate’s intellectual eligibility for execution.

In a 2005 Missouri case, the court ruled that offenders can’t be executed for crimes committed when they were under 18. The convicted murderer in that landmark case, Christopher L. Simmons, is now 38 and serving life without parole at Southeast Correctional Center in Charleston, Missouri.

Bucklew’s case, which will now return to the 8th U.S. Circuit Court of Appeals, concerns whether Missouri’s method of execution can legitimately be applied to him.

A jury concluded that in 1996 in Boone County, Missouri, Bucklew murdered a male friend of his ex-girlfriend, then pistol-whipped, handcuffed and raped her in the back of a car. He later wounded a police officer, escaped from jail and beat his former girlfriend’s mother with a hammer.

Some death row inmates have challenged, in general, the multiple drug combination used for executions. Bucklew’s challenge is more targeted. He says the lethal-injection drugs are wrong for him specifically because he suffers from a rare congenital disorder that causes vascular tumors. The tumors could impede circulation of the chemicals injected by the executioner and cause serious suffering, he says.

“Because of these unique risks – which create a substantial likelihood of hemorrhaging, choking, airway obstruction and suffocation – lethal injection with any drug likely will violate Mr. Bucklew’s rights under the Eighth Amendment,” Kansas City, Missouri-based attorney Cheryl A. Pilate wrote.

The Supreme Court says inmates can challenge execution procedures that are “sure or very likely to cause serious illness and needless suffering,” but a divided court upheld lethal injection, in general, in 2008.