Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/20

Rh helps prevent facial method-of-execution claims from becoming a “backdoor means to abolish” the death penalty. Post, at 8 (opinion of ). But, the dissent assures us, there’s no reason to worry that as-applied method-of-execution challenges might be used that way. This assurance misses the point. As we’ve explained, the alternative-method requirement is compelled by our understanding of the Constitution, not by mere policy concerns.

With that, the dissent is left only to rehash the same argument that Mr. Bucklew offers. The dissent insists that some forms of execution are just categorically cruel. Post, at 10–11. At first and like others who have made this argument, the dissent offers little more than intuition to support its conclusion. Ultimately, though, even it bows to the necessity of something firmer. If a “comparator is needed” to assess whether an execution is cruel, the dissent tells us, we should compare the pain likely to follow from the use of a lethal injection in this case with the pain-free use of lethal injections in mine-run cases. Post, at 10. But that’s just another way of saying executions must always be carried out painlessly because they can be carried out painlessly most of the time, a standard the Constitution has never required and this Court has rejected time and time again. Supra, at 12. To determine whether the State is cruelly superadding pain, our precedents and history require asking whether the State had some other feasible and readily available method to carry out its lawful sentence that would have significantly reduced a substantial risk of pain.

That Mr. Bucklew and the dissent fail to respect the force of our precedents—or to grapple with the understanding of the Constitution on which our precedents rest—is more than enough reason to reject their view that as-applied and facial challenges should be treated differently. But it turns out their position on this score suffers