A group of former corrections officers has sided with a Missouri death row inmate whose attorney says his medical condition could make lethal injection a cruel and unusual punishment.
Russell Bucklew’s capital case is currently before the U.S. Supreme Court. The 47-year-old was sentenced to death in May 1997 in Boone County for killing the new boyfriend of his ex-girlfriend in Cape Girardeau County. He was scheduled for execution twice, in 2014 and 2018, and each time was granted a stay.
Bucklew suffers from the rare medical condition cavernous hemangioma, a disease that causes blood-filled tumors, susceptible to rupture, to grow in his neck and around his head. His attorney Robert N. Hochman did not return calls seeking comment, but Hochman states in court documents that given the state’s execution method of lethal injection, his client’s death “will not go smoothly.”
Missouri Attorney General Josh Hawley in his filing with the court wrote that the growth in Bucklew's mouth had shrunk, disagreeing that his condition presents a risk of suffering under lethal injection.
Numerous amicus, Latin for friend of the court, briefs were filed in the case in the past week, one on behalf of former corrections officers across the nation who argue the burden placed on the executioners in carrying out a death sentence likely to be botched would be intolerable.
Attorney Tejinder Singh, who filed the brief, works for Goldstein and Russell, a Washington D.C., law firm that supports death row inmates who are unable to afford legal representation in Supreme Court cases.
“In this particular case we were contacted by folks in the Constitution Project and the Project on Government Oversight, which are two groups who sometimes help organize briefs on behalf of former law enforcement officials, judges and similar groups who might be interested in a capital case,” Singh said.
Supporting Bucklew in the brief are 23 corrections officials from across the nation who turned death penalty opponents. Some have witnessed or overseen multiple executions and some have served as executioners themselves.
They include Allen Ault, who served as chief of the National Institution of Prisons and corrections commissioner in other states and Donald Cabana, who was a former warden at the Mississippi State Penitentiary who said he came to “loathe” the practice. Jerry Givens, who carried out 62 executions for Virginia corrections in his career and now supports ending the death penalty is also named in the brief.
“Combined, more than 100 executions are represented by the people who signed the brief," Singh said. “It is a very experienced group who know a lot about the administration of the death penalty.”
All those signatures endorsed the belief that the people carrying out executions are negatively affected by the ordeal. Some cite long-term psychological effects such as post-traumatic stress disorder and say preparing for and returning to normalcy afterward is a weeks- or sometimes months-long process.
“It’s incredibly traumatic even in the best of circumstances for corrections officers to participate in executions,” Singh said. “That’s not what they normally do. Corrections officers and supervisors normally take care of inmates, keep them safe and in custody. In an execution they are required to do something very different, they are required to end that person’s life.”
The burden, the brief states, is exacerbated significantly when, as in the case of Bucklew, a medical condition comes into play.
“Even in the best of circumstances when executions go smoothly, they can be very very difficult for corrections officials,” Singh said. “But when, as is here, there is a real risk the execution will be botched because of the inmate’s unique medical condition leading to complication, the risk becomes truly intolerable. It becomes extreme and there is no good reason to force public servants into a position of carrying out those executions.”
The brief also cites as one example the highly-publicized, botched execution of Clayton Lockett in 2014 in Oklahoma. Just weeks before Bucklew was granted his first stay in May 2014, the vein being used for Lockett’s lethal injection collapsed and he writhed on the table for about 40 minutes before dying of a heart attack.
“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,” the brief states. “Thus, the risk that public employees will be forced to participate in a gruesome, unconstitutional execution is intolerably high.”
Bucklew had asked the court to consider the possibility of executing him with nitrogen gas instead of lethal injection. Missouri law still allows that method, but a lethal gas execution has not been carried out since 1965 and the state no longer has a gas chamber.
In the absence of a gas chamber, Bucklew is asking for the method to be a gas mask fitted over his face and streamed with nitrogen.
Others filing briefs last week in support of Bucklew include the American Civil Liberties Union, Scholars and Academics of Constitutional Law and Megan McCracken and Jennifer Moreno, lawyers in the Death Penalty Clinic at the University of California, Berkeley, School of Law.
No timeline has been established as to when the Supreme Court might reach a decision.
A Boone County jury found Bucklew murdered Michael Sanders, 27, at his Cape Girardeau County home in front of his children and then kidnapped and raped his ex-girlfriend. The Missouri State Highway Patrol found Bucklew in St. Louis County, where he engaged officers in a gunfight. Bucklew and a trooper were wounded in the exchange. He later escaped jail and attacked his ex-girlfriend's mother before being arrested again.
The case was moved to Boone County after it received a substantial amount of attention in Southeast Missouri.