U.S. Supreme Court Justice Samuel Alito
U.S. Supreme Court Justice Samuel Alito (Photo: Diego M. Radzinschi / NLJ)

The U.S. Supreme Court on Wednesday evening granted a stay of execution to Missouri inmate Russell Bucklew pending the outcome of another appeal to the U.S. Court of Appeals for the Eighth Circuit. That circuit had already thrown out an execution stay granted by a panel of its own court.

Although the high court halted the execution, it was not immediately clear whether it would be cancelled indefinitely or how quickly the Eighth Circuit might act again. Missouri has a 24-hour window in which a scheduled execution is to take place before state officials must reschedule it.

The justices’ brief order only said, “We leave for further consideration in the lower courts whether an evidentiary hearing is necessary.”

“We are extremely pleased and relieved that the U. S. Supreme Court has granted Mr. Bucklew’s Application for Stay of Execution and is permitting the appeal in the Eighth Circuit to go forward,” his counsel, Cheryl Pilate of Morgan Pilate in Kansas City, Mo., said in a written statement.

The justices’ action followed on the heels of Justice Samuel Alito’s grant of a stay of execution for Bucklew one hour before the procedure was to take place at 12:01 a.m. Wednesday. Although pleased with Alito’s order, anti-death penalty experts were cautious as to the latest action by the high court.

“We’re obviously grateful it happened and relieved,” said Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty. “It appeared to be another disaster lining up to happen if the execution had gone forward.”

Rust-Tierney was referring to the recent botched execution in Oklahoma. That state used a three-drug protocol to execute Clayton Lockett on April 29, but the procedure went awry, leaving Lockett convulsing, writhing on the gurney and struggling to speak. He died of a heart attack.

Pilate filed the application for a stay of execution and a petition for review, challenging Missouri’s lethal injection protocol as applied to him. She said lethal injection posed “unique risks to him arising from the unstable, untreatable vascular tumors—cavernous hemangioma—that fill his head, neck and throat.”

There was a substantial likelihood, she argued, that lethal injection with any drug would cause hemorrhaging, choking, airway obstruction and suffocation, and thus violate his rights under the Eighth Amendment.

“As a panel of the Eighth Circuit recognized, Mr. Bucklew presented strong medical evidence—that the Missouri Department of Corrections failed to contest—showing the likelihood of unnecessary pain and suffering beyond what is constitutionally permissible,” Pilate said. “Today’s stay of execution will give the lower federal courts time to consider Mr. Bucklew’s claim that his execution would violate his rights under the Eighth Amendment to be free from cruel and unusual punishment. As the doctors who reviewed Mr. Bucklew’s records indicated in sworn statements, more up-to-date medical information and diagnoses are needed to fully understand the degree of pain that Mr. Bucklew would experience during an execution.”

Stays of execution are neither frequent nor rare from the Supreme Court. The justices issued six stays in 2011 and four in 2012, according to the Death Penalty Information Center. In a number of cases, the stay expires after the justices deny review of an inmate’s petition. Besides Bucklew, Alito this year granted a stay to another client of Pilate’s—Herbert Smulls—who subsequently was executed in January.

Bucklew’s arguments for a stay of his execution focused primarily on the risks to him, but his petition for review raised a key issue that death penalty opponents have sought, and continue to seek, an airing by the Supreme Court: secrecy in some states surrounding the drug protocol now being used.

Bucklew asked the justices whether and to what extent the due-process clause of the Fourteenth Amendment entitles a condemned inmate to the timely notice of material information about the drug that will be used to execute him.

The high court last month denied review of the secrecy issue in petitions by inmates in Missouri and Louisiana. And Texas recently executed two prisoners who also had tried to discover the source of the drugs being used. A district court had ordered the state to disclose the information but the Fifth Circuit reversed that order.

“The issue that must bother some of the justices is this due process versus secrecy question because of its fundamental nature,” said Richard Dieter, executive director of the Death Penalty Information Center. “Barring national security, the states have to be forthcoming when they are treating their subjects—patients or inmates—about what they are doing to them so you can have a fair hearing and challenge it.”

The Associated Press and four other news organizations sued the state of Missouri on May 15 requesting a state court to order the Department of Corrections to release information about the source of its lethal injection drugs. Under state law, the drug supplier is considered part of the “execution team” whose membership is secret.

Contact Marcia Coyle at mcoyle@alm.com.