Issues : (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition; and (4) whether petitioner Russell Bucklew met his burden under Glossip v. Gross to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution.
(Note: Question #4 was added by the Supreme Court when they accepted the case, the first 3 questions are from the Petitioner.)
In a rather surprising twist, Justice Kavanaugh joined with the 4 liberal justices in aggresively questioning the attorney for Respondent Precythe (Director of the Missouri Department of Corrections.)
Quote from the first linked article:
(Note to Mods: Quoted material made available under the Attribution-NonCommercial-NoDerivs 3.0 United States (CC BY-NC-ND 3.0 US) license. Attribution is given to Scotusblog.)
Kavanaugh appeared concerned about the prospect that inmates like Bucklew could suffer excruciating pain as a result of the method of execution selected by the state. He asked Missouri Solicitor General John Sauer, who argued for the state, whether an execution could go forward even if would create “gruesome brutal pain.” When Sauer responded that it could, Kavanaugh pressed him to explain whether there were any limits on how much pain the execution could inflict. Sauer’s answer: Yes, an execution could not go forward if the pain were so gruesome and brutal that the state would be deliberately inflicting pain for the sake of pain.
It is always difficult to discern a justice’s intentions from oral arguments, but I think Bucklew has at least a glimmer of hope from today’s oral arguments. At the very least, Kavanaugh might join with the liberal justices to order the case be remanded for fact finding, with the case to return to the Supreme Court at a future date.
I suspect that we will probably not get an Opinion in this case until the February time frame, due to the obvious deep divide of the court on this issue and the fact that there will likely be a lot of back and forth among the justices before the final Opinion of the Court is released.