Some court decisions are well-reasoned; others are downright dumb. Then there are those decisions that fall into the heartless category.


In macabre detail, the Eighth Circuit issued a March 6, 2018 decision in Bucklew v. Precythe that falls into the latter category. Context is in order.


Russell Bucklew was convicted of murder, rape, and kidnapping that occurred in March 1996 in Cape Girardeau County, Missouri. He was sentenced to death.


Missouri Authorizes Death Penalty by Lethal Injection and Gas Chamber


Hanging was the only method of execution in Missouri between 1810 and 1937 when the gas chamber became the state’s sole method of execution. The gas chamber method of execution was replaced in 1987 by lethal injection. The Eighth Circuit in Bucklew said that Missouri law still recognizes nitrogen hypoxia (gas chamber) as an authorized method of execution; however, a condemned inmate does not enjoy a choice between death by lethal injection or by gas.


According to the Death Penalty Information Center, thirty-one states, the U.S. Government and the U.S. Military authorize lethal injection as the primary method of execution. Five of those states gives the condemned inmate a choice between lethal injection and an authorized secondary method of execution.


Many States Authorize Alternative Methods of Death


For example, Alabama, Florida, South Carolina and Virginia allow the condemned inmate to choose either the electric chair or lethal injection as his or her preferred method of execution. California permits its condemned inmates to choose either the gas chamber or lethal injection while Washington permits its condemned inmates to choose either hanging or lethal injection.


Three other states permit condemned inmates to choose the method of execution in place before those states adopted lethal injection as their primary method of execution: Arizona allows the gas chamber while Tennessee and Kentucky allow the electric chair.


Five states have secondary methods of execution if lethal injection is unavailable: New Hampshire (hanging); Utah (firing squad); Arkansas (electric chair); South Carolina (electric chair); and Wyoming (gas chamber).


Two states, Mississippi and Oklahoma, authorize three alternatives methods of execution if lethal injection becomes unavailable: gas chamber, electric chair, and firing squad, respectively.


Finally, Tennessee law provides that if either lethal injection or the electric chair is declared unconstitutional, the state will then employ “any constitutional method” to carry out its executions.


Condemned Man’s Medical Conditions Cause Concern


The method of execution is critical in Bucklew’s case because he suffers from a medical condition known as “cavernous hemangioma.” This condition involves large vascular deformities and tumors in his face and neck that cause pain, pressure, and frequently bleeding.  Sclerotherapy, chemotherapy and radiation have failed to ameliorate the condition. Missouri’s lethal injection protocol involves a 5 gram dose of pentobarbital intravenously injected into a suitable vein. If that 5 gram dose does not cause death, then a second 5 gram dose is administered to accomplish the dirty deed.


Bucklew presented expert evidence in federal court that, as the Eighth Circuit noted, his medical condition would cause severe choking and suffocation during the lethal injection process, primarily because he would be laying supine on a gurney. The appeals court pointed out that in this position, “gravity pulls the hemangioma tumor into his throat” which would cause “his breathing to be labored and the tumor to rupture and bleed.”


In a conscious state, however, Bucklew is able to “adjust” his breathing by repeatedly swallowing which prevents the tumor from blocking his airway.


Experts Testify Death by Lethal Injection Inhumane


Bucklew’s experts told the federal courts that during the “twilight stage” of the lethal injection process, the condemned inmate would be acutely aware that he was choking on his own blood and, therefore, would endure severe pain before the pentobarbital would render him unconscious.


Lethal injection is probably the worst method of execution authorized by state and federal lawmakers in this nation’s history.


The Case of Alva Campbell


In 2017, at age 67, Alva Campbell was strapped to a lethal injection gurney in an Ohio prison to be put to death by a 5 gram dose of pentobarbital for a carjacking murder he committed in 1987.


At the time, according to NBC News, Campbell suffered from COPD, prostate cancer, lung cancer, and other physical infirmities that required oxygen be administered to him four times a day. His health had deteriorated so badly that the prison execution team could not find a suitable vein to insert the death needle. The execution attempt was called off after thirty minutes of trying to find a suitable vein.


Campbell died in his death row cell on March 2, 2018.


Franklin County prosecutor Ron O’Brien, who prosecuted Campbell, was not pleased about this fatal turn of events. He lamented to the news media that “it was a shame” that Campbell was able to run out life’s clock through “frivolous litigation” for two decades to deny “justice due to the state and the victim’s family.”


There is no way to calibrate the prosecutor’s level of professional ignorance or his demand for blind, unabated revenge. It simply must be rejected.


Botch Execution of Davis Lee Hamm


Then there was the case of David Lee Hamm whose execution was called off on February 22 in the Alabama death chamber after the prison IV team repeatedly punctured the condemned inmate’s legs and groin trying to find a suitable death vein, according to NBC News. In the process, the IV team managed to puncture Hamm’s bladder and possibly his femoral artery because of the blood “gushing” from one of the failed vein access attempts, said Hamm’s attorney. The attorney, Brian Harcourt, had warned prison officials prior to the botched execution attempt that Hamm had a compromised vein system because of a history of drug use and illness.


We cannot accept, much less believe, that a majority of Americans are cut from the same cloth as prosecutor O’Brien. The death penalty is a barbaric and senseless act of revenge killing by the state and should be abolished.  However, until that time, it seems only logical that in those states that have authorized secondary methods to execution over lethal injection, a condemned inmate should have a right to choose the method of execution to be employed.


Lethal injection is nothing short of torture, especially in those cases where the condemned inmate has spent decades on death row and whose health has weakened in the process.

At the end of the day, the Eighth Circuit said that Russell Bucklew had failed to sufficiently show that death by nitrogen hypoxia gas would be less painful than a pentobarbital lethal injection.


We disagree.