Gorsuch brushed aside this claim as “foreclosed by precedent”; the words all Eighth Amendment claims in Glossip, he wrote, mean that no “as applied” appeal can ever be heard. Such an aggressive reading of one word—all—is at best sloppy judging. Glossip didn’t decide the “as applied” question or even, really, refer to it. Bucklew’s claims might be wrong, but they were not “foreclosed.”
There’s a second problem: Bucklew had, in fact, identified an alternative method that, he argued, would be more humane—execution by nitrogen gas. The idea of a “nitrogen chamber” might seem outlandish; no state has yet used nitrogen in an execution. But four states have now legally adopted it as an alternative or primary means of execution—and one of those states is Missouri. So, in fact, Bucklew’s alternative was a method specifically authorized by Missouri law.
Read: The cruel and unusual execution of Clayton Lockett
The question, then, was whether gas would produce less pain than lethal injection would. What’s the answer? Bucklew was asking for a trial on that issue; the Supreme Court denied him that day in court.
Beyond the “less painful” issue, the majority said, Bucklew had not shown that gas was a “known and available alternative” to injection. Even though nitrogen was approved by state law, the majority said, Bucklew should have been able to tell the state:
how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some mixture of gases); how quickly and for how long it should be introduced; or how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks.
This seems like a questionable assignment of the burden—an indigent inmate, locked 24 hours a day in a solitary cell, has fewer means of acquiring information than the state does. Beyond that, it is the state that wants to kill Bucklew, and gas is the state’s designated alternative. Is it really so unreasonable to ask the state to take some responsibility for making it work?
Gorsuch’s opinion has two even more important malignant flaws. For at least 60 years, the Supreme Court has consistently held that the ban on “cruel and unusual punishments” is not limited to the ideas prevalent in the 18th century (when crimes were sometimes punished by hanging, whipping, branding, and even mutilation). Instead, in a 1958 case called Trop v. Dulles, the Court said that “the words of the Amendment are not precise, and … their scope is not static”; instead, it “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” This is a hugely important precedent, invoked dozens of times since then. It has led to such decisions as forbidding execution for rape (employed in the South into the 1960s) and execution of those who commit crimes as children or who become mentally ill while waiting to die. It is nothing less than vital to protecting American society from the growing clamor for barbaric treatment of the powerless.