Russell Bucklew and Ernest L. Johnson are rare survivors on Missouri’s rapidly shrinking death row.
Though 18 other Missouri inmates have been executed over the past 24 months, Bucklew and Johnson have been spared a one-way trip to the state’s death chamber, at least temporarily, while they pursue a unique appeal argument.
They say they are too ill to be killed.
Both suffer from medical conditions that their attorneys argue could create painful reactions if authorities attempt to execute them with lethal injection chemicals.
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But to prevail on the argument that the inmates face an unconstitutional risk of cruel and unusual pain, attorneys for the convicted killers are required by previous court rulings to offer an alternative method for their clients’ demise.
For Johnson, whose execution was stayed last month by the U.S. Supreme Court, and Bucklew, who won a stay from the Supreme Court in May 2014, the alternative proposed by their lawyers is the gas chamber.
A relic of Missouri’s capital punishment past, it still is an authorized form of execution under Missouri law, although the state no longer has a working gas chamber.
Bucklew’s attorneys also have raised a possible second alternative of death by firing squad.
Although a firing squad is not authorized currently by Missouri law, Bucklew’s lawyers said that they didn’t foresee “much trouble” for lawmakers to pass firing squad legislation “considering the political landscape” in the state.
Bucklew, now 47, was sentenced to death for the 1996 killing of a man in southeast Missouri.
According to court documents, Bucklew suffers from cavernous hemangioma, described as “a rare, dangerous and sometimes debilitating congenital condition that causes clumps of malformed blood vessels to grow in his head, neck and face.”
His attorneys say the condition creates a “significant risk” that lethal drugs injected into his body would not circulate properly.
“This will likely prolong the execution and cause Mr. Bucklew to suffer excruciating pain,” according to the documents filed on his behalf. “Additionally, the weak, malformed veins in Mr. Bucklew’s head could rupture, leading to bleeding, choking or severely compromising his airway.”
Johnson, now 55, was sentenced to death for killing three people during a 1994 store robbery in Columbia.
He is afflicted with a slow-growing type of brain tumor. Surgeons removed part of the tumor, but a portion remains along with scar tissue, and it has created a defect in his brain, according to court documents filed by his attorneys.
His attorneys also argue that Missouri’s current method of execution will cause an adverse reaction.
“There is a substantial and unjustifiable risk that the lethal injection drugs will trigger uncontrollable seizures and convulsions due to Mr. Johnson’s unique brain defect and condition,” his attorneys wrote. “There is a substantial and unjustifiable risk of a severely painful execution.”
Appeals courts have rejected previous legal arguments by other Missouri inmates about the possibility of lethal injection violating their Eighth Amendment protection against cruel and unusual punishment.
But because of the specific medical conditions of Bucklew and Johnson, the U.S. Supreme Court has granted each the chance to raise and argue the issue.
In response to Bucklew’s case, attorneys for the state argue that his case be dismissed.
The proposed alternative must be “feasible and readily available.” And the inmate must show that it would “significantly reduce” the risk of severe pain, the state’s attorneys said.
They argue that because Missouri no longer has a working gas chamber, the method is neither feasible nor readily available. And beyond making a “naked assertion,” Bucklew has not provided proof that the method would be any less painful for him.
“The allegation that execution by poison gas would significantly reduce a risk of choking, coughing and gasping for air that allegedly exists in an execution by lethal injection with a fast-acting barbiturate defies common sense,” the state argued.
In response, Bucklew’s attorneys said in court filings last week that the use of gas is indeed known, feasible and available.
They even suggested a form of gas execution that would employ a physiologically inert gas — such as argon, helium, nitrogen or methane — to induce hypoxia. A sealed gas chamber would not be needed for such an execution because the gas would not be toxic.
“Death by hypoxia is not caused by any lethal chemical entering into the bloodstream, rather death results from depriving the brain of oxygen,” Bucklew’s lawyers said in their filing.
They noted that officials in Oklahoma and Louisiana recently have raised the possibility of using nitrogen asphyxiation as a form of execution.
Advocates of euthanasia also have proposed the use of inert gases by employing a plastic hood device known as a “suicide bag,” they pointed out.
Missouri used the gas chamber from 1938 to 1965. The last man to die by lethal gas was Lloyd Leo Anderson, who was convicted of killing a 15-year-old St. Louis boy during a drug store robbery.
After a hiatus of about five years, Missouri reinstated the death penalty in 1977, adopting the method of lethal injection, but keeping lethal gas as an alternative method.
Since the first execution in 1989 under the revised law, all of the state’s death sentences have been carried out by lethal injection.
According to the Death Penalty Information Center in Washington, D.C., the traditional means of lethal gas execution involved strapping an inmate to a chair in a sealed room.
Crystals of sodium cyanide were then added to a pail of sulfuric acid to create a cloud of hydrogen cyanide gas.
Witnesses described evidence of “extreme horror, pain and strangling.”
“The eyes pop. The skin turns purple and the victim begins to drool,” one former California prison official reported.
Though Missouri’s gas chamber has not been used for 50 years, it still is housed inside a small building at the now-closed prison in Jefferson City and is part of tours conducted by the Jefferson City Convention and Visitors Bureau.
Bucklew’s attorneys said that because his execution is not imminent, Missouri officials would have “plenty of time” to repair the existing gas chamber if they chose to do so.
Because Johnson was only recently granted a stay of execution, his attorneys and attorneys for the state are in the process of filing motions and responses. Oral arguments on his case have been scheduled for mid-January.