Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections/Concurrence Kavanaugh
SUPREME COURT OF THE UNITED STATES
No. 17–8151
RUSSELL BUCKLEW, PETITIONER v. ANNE L. PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT OF CORRECTIONS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[April 1, 2019]
Justice Kavanaugh, concurring.
When an inmate raises an as-applied constitutional challenge to a particular method of execution—that is, a challenge to a method of execution that is constitutional in general but that the inmate says is very likely to cause him severe pain—one question is whether the inmate must identify an available alternative method of execution that would significantly reduce the risk of severe pain. Applying our recent decisions in Glossip v. Gross, 576 U. S. ___ (2015), and Baze v. Rees, 553 U. S. 35 (2008) (plurality opinion), the Court’s answer to that question is yes. Under those precedents, I agree with the Court’s holding and join the Court’s opinion.
I write to underscore the Court’s additional holding that the alternative method of execution need not be authorized under current state law—a legal issue that had been uncertain before today’s decision. See Arthur v. Dunn, 580 U. S. ___, ___–___ (2017) (slip op., at 9–11) (Sotomayor, J., dissenting from denial of certiorari). Importantly, all nine Justices today agree on that point. Ante, at 19; post, at 14 (Breyer, J., dissenting).
As the Court notes, it follows from that additional holding that the burden of the alternative-method requirement “can be overstated.” Ante, at 19. Indeed, the Court states: “[W]e see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative.” Ante, at 20.
In other words, an inmate who contends that a particular method of execution is very likely to cause him severe pain should ordinarily be able to plead some alternative method of execution that would significantly reduce the risk of severe pain. At oral argument in this Court, the State suggested that the firing squad would be such an available alternative, if adequately pleaded. Tr. of Oral Arg. 63–64 (“He can plead firing squad…. Of course, if he had… pleaded firing squad, it’s possible that Missouri could have executed him by firing squad”). Justice Sotomayor has likewise explained that the firing squad is an alternative method of execution that generally causes an immediate and certain death, with close to zero risk of a botched execution. See Arthur, 580 U. S., at ___–___ (slip op., at 17–18). I do not here prejudge the question whether the firing squad, or any other alternative method of execution, would be a feasible and readily implemented alternative for every State. See McGehee v. Hutchinson, 854 F. 3d 488, 493–494 (CA8 2017). Rather, I simply emphasize the Court’s statement that “we see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative.” Ante, at 20.