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.

NEXT: Libel Case Can't Be Litigated with the Alleged Libel Sealed, Says Federal Court

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  1. I know nothing about the law, so these are just my general impressions as a citizen. (I’m a very staunch advocate of the death penalty, but otherwise very “reformist” in my political tendencies concerning the criminal justice system.)

    It seems to me that this defendant’s dilatory tactics are so obvious and egregious, particularly in the “as-applied” phase that this article describes (I am not sure whether there was anything abusive about his facial challenges, nor am I clear on if or why it might be inherently abusive to “keep the as-applied challenges in your pocket” while you exhaust the facial challenges first) that there is more than enough cause to end his appeals process immediately.

    I hope the court draws as little as possible on Cassell et al.’s amicus in doing so. I don’t know how strong and extensive the precedent is on considering the harm to the victim’s families in terms of psychological distress from a lengthy appeals process, but I hope as little weight is given to that factor as humanly possible. I desperately want to curtain abusive appeals, and generally slash time to execution as much as possible, especially since they are eroding popular support for the death penalty. But I draw the line at this. We’ve been far, far too careless in the trend over the past 40 years of weighting the process more and more in favor of the victim and even (far more outrageously) his family. We don’t need any more of that.

  2. I am generally “pro death penalty” but would agree with liberals that our current system is broken, mostly because their attempts to have it found unconstitutional or repealed state by state had been by what the Supreme Court has said “death by a million cuts”.

    If we are going to have a death penalty is should at least be effective. You get a fair trial, you get a fair appeal. That is it. No more endless appeals. (And if you are questioning if this is “due process” it is exactly what Saddam got and those at Nuremberg). Then also do away with lethal injection or government sanctioned murder behind closed doors. There should be public hangings. (If you think that is an artifact of the old West think again, the last one was done in Delaware in the 1950’s).

    If the public can’t swallow a public execution by hanging then by all means get rid of the death penalty. I’ll be the first to vote for it and sign petitions. Executions serve a two fold purpose. One it removes an evil person from the population pool and two it serves as a deterrent. That is its public purpose. If neither of these are being accomplished I see no reason to continue the practice.

    1. Public hanging for murderers certainly seems “usual” in that it was used when the Constitution was adopted, so it would be valid whether it’s intrinsically cruel or not. That is, if we by the text and history of the Constitution, which obviously we’re not.

    2. As a side note, Delaware finally pulled hangings from the list of approved means of execution not because it was cruel or unusual but because it’s really, really hard to do right. They used to have tables on display that would tell the hangman based on the subject’s weight and neck size, how long the rope should be, whether you needed to add extra weights, etc. Even with those tables, executions regularly failed to go off as planned. Neck size, for example, is a mediocre proxy for neck strength. What you want is to break the neck, cleanly severing the spinal cord but not decapitating the subject. Set the rope too short and the subject suffocates slowly (or potentially even survives if their neck muscles are strong enough). Set the rope too long and the head literally pops off. While the latter is instantaneous for the subject, it’s more than a little traumatic for the people watching (and for the staff who have to clean up after).

      1. You are talking about the various “drop” methods. The preferred one in modern times and used by most international jurisdictions is the “long drop” which was developed by the British because it was thought to be one of the most humane methods of execution. The various tables and such are great estimates but again the Constitution provides no guarantee of a painless, “clean” execution.

        My position is quite simple. The death penalty should be a legal means of criminal punishment. But it should be done by effective means and in the public eye. If the public can’t stomach watching a convicted murderer die then do away with it. If the government is sanctioned to commit murder people should be able to see what that actual means. What is the problem with that?

        BTW, hanging is still a valid method of execution in DE.

        1. What does “In the public eye” mean? Should executions be performed in the public square, all townsfolk required to attend? Or maybe force all TV channels to broadcast it live?

          Will there be closeups of the criminals family? How about interviews with the families of the victims? Will they be interspersed with slideshows of the crime scene?

          1. Yup that is what it means to do an execution in public. CNN can spin it how it would like. Do interviews with those who thought is was how cruel it was to hang the man/woman. Also Foxnews can do interviews with the victim’s family that said “justice is done”. Don’t care either which way. If the government can murder people it should be 1) done in public and 2) serve a public interest. If not throw them in a cold hard cell for the rest of their natural life until old age does the job a man should have done before that.

    3. “You get a fair trial, you get a fair appeal. That is it. No more endless appeals.”

      More often than not, death penalty defendants do not get fair trials.

      1. Cite for this?
        It is more likely to be true that “most smaller jurisdictions forego a capital case, because there are so many due process hurdles to jump, that it bankrupts them”.

        1. There is no cite. The Constitution guarantees you a fair trial. The Supreme Court has never held you are entitled to an appeal, but has suggested so in dicta. Either way there is no textual support for that as a manner of due process. I would say as a manner of maintaining a justice system though it is preferable from a public policy standpoint to allow for an appeal as a matter of right to the jurisdictions court of last resort (Article III would suggest the SCOTUS could exercise discretionary review if it wished to act for some reason). Other then that if you are convicted, it is affirmed on appeal, hang them high. That is the way it was done for about the first 200 years of our country and as a matter of fact in the colonies.

        2. Go over to the Innocence Project and take a look at how many death penalty exonerations they have managed. Then stop and think if you really think they got all of the bad convictions overturned (this is highly unlikely).

          1. Sorry, mac, but your MILES away from, “more often than not “.

            1. 350 out of 10,000 or so since 1977.
              3.5% overturned isn’t good for the courts, but it is, as you say, a far cry from “more often than not”.

              1. 350 out of the 10,000 they’ve chosen not 350 out of all the convictions. I would also note that many of the 350 are life sentence convictions not death penalty. The actual death penalty convictions overturned are fewer still.

      2. “More often than not, death penalty defendants do not get fair trials.”

        Not remotely true.

        They get court appointed lawyers who have to have death penalty experience, automatic state court appeals, state post conviction review and two rounds [at least] of federal post conviction review.

        1. “More often then not” sounds like the whining of a liberal civil ambulance chaser attorney. Here is high school 101 for you the criminal standard is “guilt beyond a shadow of a doubt”. That said, there is absolutely nothing wrong with you get a trial of a jury of your peers, a fair appeal, then the sentence imposed upon you. That is how the rest of the world works…wait no it isn’t. In the rest of the world you just get told how long you will sit in jail. If you can appeal after a trial that never happened you better be related to Trump. Best bet is to escape and make it back to America. No other country really gives two S’s about due process. Stop pretending they do.

          1. You might want to mention that the law school 101 standard is “beyond a reasonable doubt.” HTH

  3. I know Prof. Cassell isn’t doing this, but why not urge the Supreme Court to decide that murder victims’ relatives have a constitutional right to prompt resolution of the murderer’s case?

    Maybe such a right wouldn’t be justified by the text and history of the Constitution, but the Court hasn’t let that be a dealbreaker in the past.

    1. Because that’s not how mature, intelligent adults do Constitutional law.
      You don’t just make up a right because it feels good to do so.

      1. Have you been following the Supreme Court’s jurisprudence?

        1. Despite conservative caterwauling, the Court does not make up rights willy-nilly. Read the cases – they do a lot of work tracing the philosophical traditions. Griswold v. Connecticut is notable as an exception in that area.

          If the conservative narrative were the case, we’d have a lot more fundamental rights than we do.

          1. Explain whether crime victims have rights under your interpretation of the Constitution, what those rights are, and how you derive them – or don’t derive them, if they don’t have rights.

            1. To help out, I’ll post Justice Brennan’s discussion of how to interpret the Constitution in light of “human dignity.”

              1. Not my thesis. Personally, I’m too against the death penalty to provide any kind of proper analysis of victims’ rights.

                1. Are there constitutional rights for crime victims in *non* capital cases?

            2. Funny how whenever a “living constitutionalist” is challenged with a prospective hypothetical, they immediately get swamped at work and can’t answer.

              1. Good lord, Smooth. I can’t see any path towards a cognizable Constitutional right for victims, but I recognize that I’m not a great one to ask about that.
                Hardly the intellectual cowardice you eagerly accuse me of.

                1. How about a right to a guaranteed basic income?

                  1. I myself like looking at evolving language in the text, though there are obviously many philosophies (almost as many as orignialist methods haw haw.)

                    Starting from there, it’s hard to see where one might find a right like that. SDP/Ninth alone isn’t enough without either additional Congressional language (Griswald-Roe) or history (Lochner). Equal protection doesn’t work either. And Privileges and Immunities is both dead as precedent and is largely backwards looking.

                    Best hook would be the 13th. Perhaps one day our views will change about what involuntary servitude means, but that day is not today.

                    Now, if you already HAVE UBI and want to take it away, that’s a whole different story…

          2. “tracing the philosophical traditions” = “make up rights” actually

            1. Well, Bob, I have some bad news about the Second Amendment, then.

              1. What’s the bad news?

                1. The reasoning for finding the individual right is as much the practice of tracing intellectual traditions as the right for gays to marry.
                  Neither deals with explicitly directive text, so by Bob’s reasoning they’re just made up rights.

                  1. You’re comparing apples to oranges, in that there is a rich mine to plumb when it comes to the right to keep and bear arms, which has the actual text to support it right there in the Bill
                    of Rights, but for gays to marry…not so much.

                    1. The language is ambiguous as written, no less ambiguous as the language directing ‘equal protection of the laws,’ or ‘due process of the laws.’ Only by digging into philosophical tradition can you get where you want to go.

                  2. Or the analysis would be that if we were able to poll the drafters of the 2nd Amendment as to whether a state or the feds could outlaw the possession of a firearm, they would have looked at you like you were from Mars, and said: “certainly not”.
                    Not so–or, so the argument goes–for buttsex.
                    So, I’m still hazy on this “bad news” you’re referring to.

                    1. Your originalist analysis begs the question, Smooth.

                      Yeah, you have your preferred method of tracing the philosophical traditions (and I’ll add that your speculation about what the Founders would say if you polled all of them sounds a lot like making stuff up, though I get it was more about tone than explicit doctrine).

                      But that’s not the only method of doing so. And some of those philosophical throughlines say yes to the buttsex.

                      In Bob’s breezy contempt for tracing philosophical traditions, he threw out the originalist baby with the bathwater.

                    2. “In Bob’s breezy contempt for tracing philosophical traditions, he threw out the originalist baby with the bathwater.”

                      I don’t see how “shall not be infringed” can be just ignored.

                      Its the anti-gun rights people who resorted to “philosophical traditions” pretending that alone of all rights, 2A was collective.

                  3. “explicitly directive text,”

                    Not true, “shall not be infringed” is “explicitly directive”.

              2. 2A has very plain language “shall not be infringed”. No need for “philosophical traditions”.

                1. Your being super-duper sure doesn’t make what the people mean and the militia bit any less ambiguous.

                  I agree with you there’s an individual right, but if you think there is no need for intellectual work there, Prof. Kopel wants a word with you.

            2. I very much doubt that the framers had in mind a government with a jurisprudence so baroque that you need a law degree (…and even then…) determine whether a right exists.
              Hell, a lot of them thought the central government, including the SCOTUS, was by definition powerless enough that an explicit bill of rights was superfluous.

              1. Bad news for you there: they didn’t even know which rights existed! No shortage cases regrading the Bill of Rights in early America.
                And lets not forget what sort of people were in the polity back in those days. Their populism looks pretty elitist these days!

                So that’s not how it was, despite how much you ‘very much doubt.’
                If you want to argue that’s how it ought to be, I return to my example of the Second. It took scholarship to win that debate, not cocksuritude your reading of the text is obviously correct.

                1. So Madison, Hamilton, Wilson didn’t know what the document’s extent was, but Sonia Sotomayor does?
                  Pardon me if I don’t jump for joy.

                  1. The Constitution was not as directive as all that – the Founders seemed to have the humility realize they didn’t have all the answers even among their contemporaries.

                    Else why the Alien and Sedition Acts, or acceding to Marbury v. Madison, or Little v. Barreme?

                    Sorry if you don’t like how the Judicial Power works, but as a smarter guy than both of us said, the SCOTUS is supreme because it is final, it is not final because it is Supreme. I can ratify the procedure without personalizing it. Can you?

                    1. It seems to me that the Framers exhibited all the humility necessary to the occasion when the attached Article V.

                    2. Didja miss the ‘even among their contemporaries’ or the paragraph following that discussed their inconsistency with Constitutional text?

                2. I’d very much like a living constitutionalist analysis as to a right that has not yet found a majority on SCOTUS, but is somehow nevertheless there.
                  Cause it sure as hell looks like retroactive justification of whatever rights 60% of the professoriate and 60% of the SCOTUS manage to discover.

                  1. On this forum at least, Originalists always end up boiling it down to legal realist accusations of bad faith in the Justices. It’s tiresome. Not the least because originalism has at least as many choices ending up where the Justices wanted to go. Have you read Baud’s posts about originalism and civil rights?

                    Look through the Conspiracy – you will find many arguments for rights not yet found by the SCOTUS but nevertheless there (Again, the Second Amendment is the ur-example…) That’s lawyering. And if the SCOTUS ends up agreeing, that does not make them liars just because they don’t adopt your preferred philosophical protocol.

  4. I oppose the death penalty for a number of practical reasons. But as long as society decides to have a death penalty, I think these endless arguments over which means of execution count as “cruel and unusual” are silly. It seems to me that anything up to and including the degree of pain and suffering that you inflicted on the victim(s) of the crime(s) that earned you the death penalty should be within the allowable range of means of execution.

    1. The meaning of “cruel and unusual punishment” was understood almost unanimously by state and federal courts up until the 1970’s as the government cannot invent torturous methods of execution to which an individual may be subjected. It was never a “promise” to a peace and quiet death (all of which now who are sentenced to death are murderers that gave their victims no such leave). This idea that the death penalty should be like putting a sick puppy to “sleep” is a modern creation of anti-constitutional, anti-death penalty perverts.

      If we have devolved enough to get rid of the death penalty and instead think it is moral to lock murderers in small dark cells (essentially held in cold storage) for the rest of their life and let God do the handy work so let it be. I am just tired of this being a “cultural issue”. Either we have the death penalty or we don’t. This “in-between” position needs to end one way or another.

      1. If anyone invented the idea that the death penalty is like putting a sick puppy to sleep, it is death penalty advocates who peddled the idea to maintain public support for their desired policy. Go back to public beheadings or hangings and the death penalty would soon be done away with.

        1. I think you’re wrong, sadly.
          Today a guillotining would be a pay per view event.

          1. The US has never used beheading as a means of execution.

            As far as that goes the guillotine is so fast that it would be about as humane as is possible for a method of execution.

            Public sentiment about the guillotine as a method of execution is heavily tainted by the fact that the French Revolution made a public spectacle out of it.

            Of course that largely ignores the fact that the US has made public spectacles out of executions by hanging in the 19th century.

    2. To me, allowing for the range of pain inflicted on the victim is almost certainly one of the vindictive things the Eighth Amendment is designed to prevent. That doesn’t mean the Eighth Amendment requires a pain-free process, but I would certainly balk at the idea that someone who killed someone in an especially heinous, cruel or depraved manner can be tortured to death himself.

      1. I would oppose such a standard as well. But I would oppose it based on the harm that it does to the executioner, not the harm to the executed.

        To the extent that we are trying to figure out what the Founders meant by the Eighth Amendment, it’s worth noting that the last two people in the US to be executed by burning was not until 1825. The last known execution by bludgeoning was in 1810. (Note that this list does not include the executions from the slave revolt of 1811. Some of those explicitly would have been counted as torture but they were not the result of a formal judicial process.)

      2. “tortured to death” does not mean “free from all pain”, there are quite a few execution techniques that can be painful which are not torture

  5. I oppose the death penalty for several reasons–that are not up for debate. But as far as this guy is concerned, I’ll put those concerns at the back of the line, and won’t bother caring if the execution goes forward quickly with(out) quirks.

  6. I am too disgusted to even read a piece by Paul Cassell – a member of the cabal that had shielded Shaun Cowley – a murderer with a police badge, from responsibility.

    1. Actually, I tried to overcome the revulsion, but gave up when Mr. Cassell complained about the “manipulation of the judicial process”. Jesus, some people have the audacity!

      Yes, I am again referring to the Cowley case. Charges against the officer were brought by the District Attorney, who is normally known for his deference to police version of stories (although not by Mr. Cassell’s standards that call for an absolute deference, coupled with kissing the boots). Yet Mr. Cassell and others did precisely this: manipulated the system so no jury ever saw the case. So much for “victims’ rights”.

  7. This savage should have been executed long ago. I blame the left for this.

    1. So, who’s funding his appeals and legal motions? They can’t all be pro se. Is it really “the left”?

      1. The left is responsible for everything wrong with America right now.

        1. That’s a mighty broad brush there, bucko. Everything? Suburban blight such as empty shopping malls?
          Habitat loss and endangered species due to careless industry practices? Mega-church pastors making off with the congregants $?

          I could go on.

          1. Yes, that too. Minority disorder and crime is what has less to the decline of malls, much more than Amazon.

  8. Murder by the State is an abomination worse than mere citizen murder, because the State has the motive of not losing face, the coercive monopoly means to frame anybody it wants to, and the endless opportunities stemming from the police, prosecutor, and judge being State agents with near-absolute immunity.

    I am sorry the victims here have wounds re-opened time and again, but the cause is not a criminal taking advantage of the system. The crime is the system itself, and that is a direct result of so many previous fraudulent executions precisely because the State has the motives and opportunities to frame people for murder.

    All this could have been avoided if men were angels and did not use government power to convict and execute innocent people. Absent such angels, the only realistic solution is to switch to life without parole, and it wouldn’t hurt to steip State agents of their near-absolute immunity.

    1. “am sorry the victims here have wounds re-opened time and again”

      Sorry for posting something slightly off topic, but I looked up this story because my wife is from the area in which this guy’s crimes occurred.

      Turns out the woman that was kidnapped and raped by this guy (after he killed her boyfriend) was murdered in her front yard by a subsequent estranged husband 13 years after she was brutalized by this guy. Just drove up and shot her with a rifle while she was minding her own business in her front yard. I mean…..shit.

    2. An executed person has never been proven innocent after. Not once.

      1. In one sense, that statement is true but only because the standard of proof is impossible to meet once you’re dead. You can not, for example, go to court to be declared innocent because once you’re dead, you are a non-person without standing.

        But there are plenty of cases where those executed have been shown to be innocent enough that no reasonable jury in possession of all the subsequent facts would ever have convicted them in the first place. For just a few examples:

        Cameron Todd Willingham, 1992 – convicted and executed for arson murder in a fire that subsequent investigation showed to have been accidental.
        Larry Griffin convicted and executed in 1995 for the murder of a drug dealer on the strength of one eye witness (the arresting officer) who now recants his testimony and another eye witness wounded in the incident but who was inexplicably never called to trial and who said that Griffin wasn’t even there.
        Carlos DeLuna executed for the murder of a store clerk despite the repeated confession (and considerable evidence) of Carlos Hernandez who actually did the murder.
        Thomas and Meeks Griffin, executed in 1915 for the murder of a white man based on the testimony of Monk Stevenson (the probable murderer) who later testified that he only named the Griffin brothers “because they were wealthy and he assumed they had the money to beat the charges.”

        1. All of the above, and there’s also the issue that once someone’s dead, the local Innocence Project is going to prioritize exonerating people who are still alive. So there won’t be investigations in many cases of unjust executions.

          That means that the list Rossami provided is likely incomplete.

          I am frightened and horrified that someone uses “proven innocent” as a standard. It would be ample grounds to abolish the death penalty to find that someone had been killed when there was a reasonable doubt. Against the overwhelming power of the government, we should never require people to prove their innocence.

        2. 1915? Seriously? Anyway, Cameron Todd Willingham was so obviously guilty. Some anti-death penalty activists cooked up some arson “experts” who now claim the fire wasn’t set. You don’t really believe this crap do you?

          1. The State Fire Marshall who served as the expert at Willingham’s trial was a former cop who had received one week of training. The “experts” who claim the fire wasn’t set were people who have advanced degrees in stuff like chemistry and physics. There were nine of them. I know that science is an anathema to people like you, but chemistry and physics are actual things. The markers that the state’s expert used to convince himself it was arson had been shown to be bullshit by an experiment done shortly before the Willingham fire (look up the “Lime Street Fire” if you care to learn something) but the state’s expert had not kept current because he believed he could figure it out by letting the fire “talk to him”.

            ActualRightWingPatriot is one of those conservatives who believe that every government agency known to man is a clusterfuck, except for the police and prosecutors, who are models of efficient perfection.

            To Rossami’s list you can at least add Ruben Cantu and David Spence in Texas. Hell, even the prosecutor who convicted Cantu is now saying “oops!” in light of subsequent facts.

          2. Oh, my how contextual we are about due process now after the Kavenaugh hearings.

            IL removed it’s death penalty because the state was too incompetent to send people to death row that that really deserved it, and in an era with DNA evidence at that, such as the mentally retarded who had no idea what was going on.

            Wiki article on exonerated Death Row Inmates

            That said, the death penalty should be reserved for egregious cases, with DNA evidence.

          3. You’re the one who used the absolutist language “never” and “not once”. So, yeah, 1915 is in scope of your claim.

            re: Willingham – The critics of the evidence in that case included the Texas Forensic Science Commission, an arm of the Texas state government and hardly an “anti-death penalty activist”.

            But if you don’t like the Willingham example, start looking into the others. I listed a very, very few. You can spend some time reading up on the rest. It only takes one to falsify your original, absolute statement.

        3. Also, people on death row have been exonerated. It would be ludicrous to believe that no false convictions have slipped through and resulted in execution of the innocent.

    3. If we take the death penalty off of the table the goal will be to do away with life without parole. And after we get rid of life without parole it will be getting rid of life sentences. Eventually we will be back to vigilante justice because part of the social contract is that we give up personal justice and let it be handled by the state. If the state doesn’t hold up its end often enough people will do it themselves.

  9. Does anyone else find the constant exhortations by liberals to “VOTE!!!” as annoying as I do?

    1. Probably not.

      1. I am cool with all eligible voters voting. Even the folks that don’t own land, that are female, that are brown, and I forget if you think Jews should vote or not.

    2. Only because one can hear them whisper “Democrat” after the words “remember to vote”. The civic exhortations by known lib celebrities where they want you to “rock the vote” are not because they want you to engage in a civic exercise, but rather that they think it will help the Democrat Party.

      Currently, the conventional wisdom is that turnout helps Dems, but in the Trump Era, that may not be the case.

      1. Exactly. That. I didn’t do a good job articulating my point, so thank you.

  10. A better way for the Court to end decades long death penalty litigation would be to end the death penalty.

    1. Better how?
      Capital punishment is explicitly referenced in the Constitution.

      1. I suspect he means more effective way.

      2. Actually no, capital punishment is not explicitly referenced in the Constitution.

        The closest you can get is the text of the 5th amendment:

        “No person shall be held to answer for a capital, or otherwise infamous crime”


        “nor shall any person be subject for the same offence [sic] to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;”

        I think you can make a strong argument that 5A contemplates capital punishment as constitutional, but it’s hardly an explicit reference to it.

    2. Get rid of the “tarian” part of your name. You’re an anti-Western liberal.

  11. If Bucklew gamed the system, by all means reject his petition.

    But Prof. Cassell’s “injury” argument is wrong and dangerous. We can never accept a victin’s desire for revenge as a cognizable injury.

    The victims are not injured as long as Bucklew is locked up. And if the state kills him, it won’t bring any dead people back. Prof. Cassell’s argument on injury should not be given the time of day.

    1. “We can never accept a victin’s desire for revenge as a cognizable injury.”

      It’s pretty much a known fact that that the death penalty is not a deterrence, except perhaps that it may protect police in that killing a cop is a sure fire path to a death penalty trial (but this is not measurable).

      As a society, we think that moral retribution is just as valid reason to put someone to death as deterrence. Why is this wrong?

      1. Retribution on behalf of society is different from the personal desire of the victims.

        1. Why? We collectively decide lots of things, what makes giving someone the death penalty different?

          1. Society may have the right to take retribution. But if a member of a victim’s family kills this guy, that’s illegal and would result in a murder charge.

            We don’t recognize a right of the victims to have vengeance.

  12. If I were facing the death penalty, you can bet your ass I would be engaged in any dilatory tactic I could think of.

    1. Sure, but Prof. Cassell is correct that the system doesn’t have to encourage that.

      1. The alternative is having a substantial number of wrongful actual executions (read: state-sponsored murders). Between 2010 and 2017 alone there were 19 exonerations of death row inmates.

        “It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished.

        But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”
        – John Adams, 1770

        1. We are talking about strategic delays, not delays for legitimate appeals about guilt or innocence.

          I agree we should beef up habeas. But a challenge to method of execution? That can be subject to procedural default.

          1. The issue I have with subjecting challenges to the method of execution to a procedural default is when the facts on the ground change. If it’s the same planned method of execution as always and it wasn’t raised initially, I don’t have a problem with a default, but if there are new facts – such as recent botched executions or a change in chemicals used or their source, it’s not really possible to raise it earlier.

            1. Well courts should be able to distinguish between a real change in facts and strategic delay.

              1. I think a default rule similar to a discovery rule in statutes of limitation makes a lot of sense. But, while courts can make this distinction, they would make the decision when raised on Habeas.

      2. Agreed, though his tone does seem resentful that this guy is trying it…

        1. I read the resent to be that he’s gotten away with much of it for so long.

          I’m all for much fairer capital trials, but method-of-execution has nothing to do with the merits . . .

          1. Maybe I’m reading into it, but I see a lot of the post (and underlying anger) directed personally at the man himself for daring, rather than the procedures he’s taking advantage of.

            It’s weird defending a murderer from anger at his bureaucratic tactics, but I think personalizing and emotionalizing legal procedure goes to some bad places.

    2. Sure, but the courts should not tolerate that.

  13. The problem isn’t this particular appeal. The problem is that the system let it get this far. The man should have been dead and forgotten long ago. And there is nothing difficult about a painless death. Carbon monoxide puts you to sleep, and then to death. Bring back the gas chamber – and no, it has nothing to do with the nazis. All you need to do is to back up a truck to a pipe, and catch the exhaust. Strap ’em in, and put ’em down.

    Capital punishment – it’s the civilized thing to do. Justice demands it.

  14. “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. ”

    How very odd. What is it about your knowledge of the case that leads you to the conclusion that he does not have the purpose of preserving his own life? It would be my first guess a priori and consistent with human nature.

  15. Anyone who thinks that before deciding a case a court ought to consider the briefs of the parties and not just one amicus brief can find them here: http://www.scotusblog.com/case…..-precythe/ The advocacy system presumes that reliance on an amicus, without giving consideration to the views of the petitioner, is insufficient to reach a reasoned conclusion.

  16. These comments — and the original contribution by Paul Cassell — dispel any illusion that the Volokh Conspiracy or its right-wing fans are libertarian to any discernible degree. Movement conservatives

    Why do so many conservatives and ostensible libertarians rant and whine incessantly about government’s failures, inadequacies, corruption, and improper motives — until it is time to kill someone, at which life-or-death point our government magically transforms. at least in the view of these faux libertarians, into a reliable instrument of justice that is trustworthy, effective, unerringly just, and morally pure?

    Carry on, clingers.

  17. What inclined reason.com to host an oft-authoritarian, reliably movement conservative blog?

    I understand why the Conspiracy would publish at reason.com — the blog’s express purpose is to try to make movement conservative palatable to a broader audience — but find reason.com’s association with the Volokh Conspiracy’s standard-issue right-wingery to be inexplicable.

    1. Who are you to define what is, or isn’t, libertarian enough? What special expertise or lived exerience do you possesses? How, and why, are you an adequate judge of if Reason is “keeping it real” or not?

      1. I’m the guy pointing out that the Volokh Conspiracy’s banner — which omits movement conservatism but trumpets ‘often libertarian’ — is a calculated lie.

        1. No, you’re just pointing out that you’re an intolerant troll with some of the most anti-libertarian views of anyone who posts here.

        2. How is not opposing the death penalty…or even less than that, hosting a blog where pro death penalty people post and comment–not libertarian?

  18. I oppose all laws and policies that call for the State to kill its own citizens, despite the very sincere efforts of educated people to make the process more administratively convenient.

    1. Do you also oppose efforts by the state to kidnap and confine against their will?

  19. Lol. It’s hard taking an argument against delay tactics by Cassell seriously, given that just a couple months ago in his cattle case he, as defense council, told prosecutors he would flood them with motions.

    Lawyers gonna lawyer.

  20. Bullet to the head. Problem solved. What’s the problem with that?

    1. It’s messy. It’s surprisingly easy to get wrong (resulting in merely injuring or perhaps lobotomizing the subject rather than killing him). You have to worry about ricochets and other fragments that pass entirely through the brain. And it’s very traumatic to the executioner.

      If you’re going to take that approach to executions, I’d recommend instead using a captive-bolt device such as are used to slaughter cows and other large livestock.

      Personally though, I’d pick carbon-dioxide suffocation – the technique often used for veal. It’s safe at up to 30,000 ppm (submariners have been continuously exposed at this level with few to no symptoms) so there is very little risk to the executioners, witnesses, etc. CO2 intoxication starts at 50,000 ppm. The subject goes unconscious at about 70,000 and death occurs after a few minutes at 100,000 ppm.

      1. What about elemental nitrogen?
        I’ve heard that gives an easy exit?

        1. Nitrogen narcosis doesn’t kick in until you’ve got enough pressure to move the nitrogen across the membranes and barriers in your lungs. At one atmosphere, increasing nitrogen concentration really just means that you are displacing oxygen. The subject feels short of breath, often begins hyperventilating and shows other overt reactions before eventually the oxygen deprivation causes unconsciousness. The symptoms are basically the same as high-altitude sickness. I suppose you could put the subject in a pressure vessel to increase the nitrogen narcosis factor. Seems like a lot of work.

          Plus nitrogen has to be stored and transported either as pressurized gas or supercooled liquid. It’s not super-expensive but enough to reliably fill a room isn’t cheap, either. Carbon dioxide is available practically everywhere as dry ice.

  21. The blame for the drawn-out appeals process can be laid at the feet of the Supreme Court.


    As JUSTICE BREYER concedes, for more than 160
    years, capital sentences were carried out in an average of two years or less. Post, at 18. But by 2014, he tells us, it
    took an average of 18 years to carry out a death sentence. Id., at 19. What happened in the intervening years?
    Nothing other than the proliferation of labyrinthine restrictions
    on capital punishment, promulgated by this Court under an interpretation of the Eighth Amendment
    that empowered it to divine “the evolving standards of decency that mark the progress of a maturing society,”
    Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)?a
    task for which we are eminently ill suited.

  22. So… this harm to the victims wouldn’t be happening absent the death penalty?

    Why is it wrong for him to execute 🙂 his legal strategy with an eye toward maximizing his success and leveraging political opinion that is becoming less supportive of the death penalty?

    Why not just gas him?

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