The Volokh Conspiracy

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Dilatory Tactics in a Death Penalty Case?

My co-authored amicus brief urges the Supreme Court to bring an end to decades-long abusive litigation by convicted murderer Russell Bucklew.


In 1996, Russell Bucklew murdered Michael Sanders as his two young sons—only four and six years old—watched their father bleed to death in front of them. Then, as the young daughters of Bucklew's other victim, Stephanie Ray, cried and wailed for their mother, Bucklew handcuffed and dragged her away to endure hours of rape and torture. Bucklew's reign of terror continued when he broke out of jail, forced victims to go into hiding, and ambushed one victim's mother in her own home. He was tried, convicted, and sentenced to death over 20 years ago.

Tomorrow the Supreme Court will hear oral arguments in Bucklew v. Precythe, in which Bucklew is raising an "as applied" challenge to Missouri's method of executing him (lethal injection). Counsel of record Allyson Ho, several of her colleagues at Gibson, Dunn & Crutcher, and I have filed an amicus brief in support of Missouri. We filed the brief on behalf of the sister of Michael Sanders and Arizona Voice for Crime Victims. Our amicus brief urges the Court to reject Bucklew's challenge and end more than two decades of litigation.

Bucklew's latest challenge argues that, as applied to him, Missouri's method of carrying out the capital sentence constitutes cruel and unusual punishment because of his unique medical condition (benign oral tumors). This challenge could have been raised more than decade ago. In June 2008, Bucklew filed a pleading asking to hire a medical expert to support a clemency application—and supported his request by claiming that, because of his condition, "execution by lethal injection may pose a substantial and intolerable risk of inflicting serious harm and excruciating pain." His 2008 filing included extensive argument that he would "suffer the risk of serious harm amounting to cruel and unusual punishment during the administration of Missouri's lethal injection protocol in light of his affliction with cavernous hemangioma." It even stated that Bucklew sought to demonstrate that Missouri's procedure was unconstitutional "as applied uniquely" to him.

Yet despite his obvious awareness of a possible as-applied challenge based on his condition, Bucklew refused for years to bring such a challenge. Instead, he brought or joined a series of facial challenges—always ensuring that his as-applied challenge was at the ready for later use. After years of litigation on facial challenges, in May, 2014, less than two weeks before his scheduled execution, Bucklew finally brought his as-applied challenge. Having held that challenge in reserve for years, Bucklew was able to secure a stay of execution from the Supreme Court while Missouri's other capital defendants could not, and he staved off dismissal of his new as-applied claims despite the dismissal of the other defendants' facial challenges.

In proceedings below, the district court and the court of appeals saw through Bucklew's strategy and held that, even after extensive discovery, he had not made any real effort to discern what procedures would actually be used at his execution—and thus could not show that any such procedures would be more painful than his lethal gas alternative. As the Eighth Circuit noted, Bucklew successfully prolonged his as-applied challenge in 2015 by arguing for the necessity of further fact-finding—and then showed no interest in that fact-finding once his challenge was revived. Specifically, three years before, Bucklew argued that the Eighth Circuit should reverse the dismissal of his complaint to allow him to take further discovery regarding what changes the State could make to its protocol to accommodate his condition—because without knowing the exact parameters of the protocol, Bucklew could not effectively argue against them. But once Bucklew secured reversal and remand, he stopped caring about what changes Missouri would make to its procedures, and did nothing to determine what, exactly, the effects of those procedures would be with respect to his condition. The district court ruled for the State and the Eighth Circuit affirmed.

As a result of these manipulative litigation tactics, Michael Sanders' family has been harmed. The first part of our amicus brief reviews the academic and other literature on the effect of such delays on victims' families. The literature confirms that long after the immediate loss and physical trauma are over, victims' families continue to suffer from psychological trauma, which courts frequently overlook. A victim's experience with the criminal justice system—particularly when the process is long-delayed, convoluted, and seemingly never-ending—compounds the initial effect of the violent crime. In capital cases in particular, years of delay exact an enormous physical, emotional, and financial toll on victims' families. The delays also keep family members from experiencing a sense of "closure"—the hope that they will be able to put the murder behind them.

In this particular case, the Eighth Circuit properly sought to put an end to Bucklew's abusive litigation and dilatory tactics, rejecting his "as applied" challenge to Missouri's use of lethal injection to carry out the execution. Now that the case is before the Supreme Court, Missouri has responded in detail to Bucklew's as-applied claims in its brief. Seventeen States have supported Missouri's analysis on the lack of merit to Bucklew's claims in an amicus brief.

Our amicus brief takes a different tack and focuses on victim-related issues. We urge the Court to reject Bucklew's arguments because of his deliberate dilatory tactics. Here is how our brief concludes:

For as long as this Court has recognized § 1983 method-of-execution claims, it has also recognized the potential for their abuse. See, e.g., Gomez v. U.S. Dist. Court for N. Dist. of California, 503 U.S. 653, 654 (1992) (per curiam) (rejecting method-of-execution challenge and explaining that "[e]quity must take into consideration the State's strong interest in proceeding with its judgment and Harris' obvious attempt at manipulation"). And this Court has held that "[b]oth the State and the victims of crime have an important interest in the timely enforcement of a sentence" that should be protected by dismissing abusive § 1983 suits. Hill v. McDonough, 547 U.S. 573, 584 (2006) (citing Gomez).

In Hill, this Court held that capital defendants could sometimes step outside the habeas framework and use § 1983 to challenge the method of their planned execution. Id. at 583. At the same time, the Court recognized the obvious potential for abuse in using § 1983 as a procedural vehicle given that, among other things, such suits are not subject to the bar on successive habeas petitions—and warned that repetitive, dilatory, and strategic § 1983 suits should not be allowed to trump the interest of victims. Id. at 584. The Court explained that its decisions upholding § 1983 method-of-execution suits "do not diminish that interest, nor do they deprive federal courts of the means to protect it." Ibid. This is so, in part, because "the 'last-minute nature of an application' or an applicant's 'attempt at manipulation' of the judicial process may be grounds for denial of a stay" or other relief. Ibid. (quoting Gomez, 503 U.S. at 654).

Although Hill was most directly concerned with stay applications, it approvingly cited cases that applied the same reasoning to dismiss outright "[r]epetitive or piecemeal" § 1983 claims. Id. at 584–85 (noting courts' use of their equitable authority "to dismiss suits they saw as speculative or filed too late in the day" as an example of how "dilatory or speculative suits" could be addressed); id. at 584 (citing White v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005), which dismissed a § 1983 action because the claimant "has been on death row for more than six years, and only now, with his execution imminent, has decided to challenge a procedure for lethal injection that the State has been using for his entire stay on death row").

It is difficult to imagine a more appropriate case for exercising equitable authority to protect crime victims against repeated manipulation of the judicial process than this one. Bucklew refused to make his as-applied challenge until the last moment—a mere 12 days before his execution—despite his awareness of the availability of such a challenge at least 6 years earlier. See White, 429 F.3d at 574 (dismissing § 1983 method-of-execution challenge where the claimant was aware of its availability "for more than six years" and only brought it "with his execution imminent"). Despite virtually unlimited opportunities to bring (and have resolved) any as-applied claims during that six-year period, Bucklew chose not to do so. Even after he was finally forced to bring his claim, he has been careful to avoid any real merits determination—arguing that a lethal gas procedure Missouri has not used for 50 years could possibly be constitutional, while offering the testimony of an expert who claims that no procedure whatsoever, gas or otherwise, could be satisfactory.

Unless the judgment below is affirmed, Bucklew will continue to bring suit after suit for no purpose other than drawing out these proceedings and dragging his victims through as many years of litigation as he possibly can. The "important interest" of crime victims that this Court recognized in Hill should be vindicated here by holding that the equities lie with the victims who have been denied peace and closure for over two decades—and affirming the judgment below on that ground.

I hope that the Supreme Court will affirm the judgment of the Eighth Circuit.