Whether an Execution Will Be Too Painful Is the Wrong Question to Ask

Russell Bucklew’s death, which has not yet come to pass, is already excruciating.

He was scheduled to be put to death at 12:01 AM on Wednesday. On Tuesday, responding to concerns by Bucklew’s attorneys that a medical condition made it likely that he would endure a lengthy and painful death, a three-judge panel of a federal appeals court decided that the convict’s execution could not go ahead as planned and imposed a 60-day stay. Then, later that evening, the full membership of the same federal appeals court vacated the stay and ruled that the death should proceed. Then, with just moments to go before the midnight deadline, Justice Samuel Alito of the Supreme Court stayed the execution pending consideration by the full court.

No one, not even a convicted rapist and murderer like Bucklew, should have their life judicially knocked back and forth like a ping-pong ball. The question of whether Bucklew’s execution will be long and agonizing is moot. It has already been long and agonizing.

Take it as read that the continued existence of capital punishment in the US justice system is barbaric and archaic. This much has been thrown in sharp relief by slew of slow, torturous, and botched executions carried out with experimental lethal cocktails in the wake of Europe’s ban on the sale for use in executions of pentobarbital (the anesthetic typically used by death penalty states in the administration of state-sanctioned murder). This year, from Ohio to Oklahoma to Missouri, death row inmates have writhed, gasped, choked, expressed extreme pain and taken up to 43 minutes to actually die on gurneys. As I have written, and it bears repeating, one sure solution to botched executions is to stop executing people.

Nor, to be sure, is the answer to simply condemn death row prisoners to life behind bars. A recent statistical study in the Proceedings of the National Academy of Sciences found that one in 25 death row inmates would be likely exonerated and freed if given an indefinite stretch of time. As the AP put it in a report on the findings, “more than 60 percent of prisoners in death penalty cases ultimately are removed from death row and resentenced to life imprisonment. Once that happens, their cases no longer receive the exhaustive reviews that the legal system provides for those on death row.”

Executions should have been banished to history ages ago, but the prison system remains glutted and cruel with or without the death penalty.

Now the Supreme Court must rule on whether Missouri’s use of pentobarbital produced in an unregulated compounding pharmacy can assure Bucklew of a reasonably humane death. The inmate has a congenital disease, which means malformed veins in his head and neck may rupture when lethally injected. Missouri also has a secrecy law shielding the source of its pentobarbital — secrecy that has been widely questioned on constitutional grounds. For these reasons, and in the wake of Clayton Lockett’s grim botched execution last month, Bucklew’s case has once again brought capital punishment to the highest court in the land.

But the issue under examination — whether a non-excruciating death can be carried out in Buckley’s particular case — is the wrong one. The time for doing away with the death penalty is long overdue. The European pentobarbital moratorium has not produced an end to executions, but rather a scramble to continue them with new methods. Whether Bucklew’s life will end with more or less agony is the question of the day for the Supreme Court. But it should be a question we don’t have to ask at all.

Follow Natasha Lennard on Twitter:@natashalennard

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