Kavanaugh, Roberts Hold Death Penalty Power After Bitter Term


Professor Deborah Denno was cited in a Bloomberg Law article concerning the U.S. Supreme Court’s Bucklew v. Precythe decision and the court’s conservative majority taking a harder line on capital punishment. Denno is the Arthur A. McGivney Professor of Law and the founding director of Fordham’s Neuroscience and Law Center.

In April 1’s 5-4 decision in Bucklew v. Precythe, Gorsuch wrote the opinion against Missouri death row prisoner Russell Bucklew, joined by the conservative wing in full.

Bucklew argued the state’s preferred lethal injection execution method will cause a gruesome execution, due to a rare disease that will cause tumors growing in his head, neck and throat to rupture. He wants lethal gas instead.

But he can’t show the state’s method “superadds” pain to the death sentence, Gorsuch wrote.

Delay tactics were on the majority’s mind there, too, with the conservatives reasoning that condoning the longtime death row inmate’s argument would invite others to play games with litigation to avoid execution. “The people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them deserve better,” Gorsuch wrote.

The Bucklew case is “the defining moment for the Supreme Court in terms of cases that arise during death warrants,” Dunham said. He said the “emotional callousness” of the decision was shocking to many. It wasn’t that the court “recognized that executions may unintentionally be painful, it’s that it appeared to accept that executions could be unnecessarily cruel,” he said.

But Kavanaugh’s concurrence seemed designed to “soften the blow” of the ruling, Denno said.

Kavanaugh wrote to emphasize what he called the court’s “additional holding” that alternative execution methods don’t need to be authorized under current state law. It’s an issue that had been uncertain before Bucklew, he said.

It’s a point that “sort of got lost in the shuffle” and is “a pretty big bonus” to capital litigators, Denno said.

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