Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/11

8 pursuing facial challenges to a state execution protocol must plead and prove an alternative method of execution under Baze and Glossip, prisoners like Mr. Bucklew who pursue as-applied challenges should not have to bear that burden. 885 F. 3d 527, 528 (2018).

On the same day Mr. Bucklew was scheduled to be executed, this Court granted him a second stay of execution. 583 U. S. ___ (2018). We then agreed to hear his case to clarify the legal standards that govern an as-applied Eighth Amendment challenge to a State’s method of carrying out a death sentence. 584 U. S. ___ (2018).

The Constitution allows capital punishment. See Glossip, 576 U. S., at ___–___ (slip op., at 2–4); Baze, 553 U. S., at 47. In fact, death was “the standard penalty for all serious crimes” at the time of the founding. S. Banner, The Death Penalty: An American History 23 (2002) (Banner). Nor did the later addition of the Eighth Amendment outlaw the practice. On the contrary—the Fifth Amendment, added to the Constitution at the same time as the Eighth, expressly contemplates that a defendant may be tried for a “capital” crime and “deprived of life” as a penalty, so long as proper procedures are followed. And the First Congress, which proposed both Amendments, made a