Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/23

20 Eighth Amendment is the supreme law of the land, and the comparative assessment it requires can’t be controlled by the State’s choice of which methods to authorize in its statutes. In light of this, we see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative—assuming, of course, that the inmate is more interested in avoiding unnecessary pain than in delaying his execution.

We begin with the question of a proposed alternative method. Through much of this case and despite many opportunities, Mr. Bucklew refused to identify any alternative method of execution, choosing instead to stand on his argument that Baze and Glossip’s legal standard doesn’t govern as-applied challenges like his (even after the Eighth Circuit rejected that argument). Only when the district court warned that his continued refusal to abide this Court’s precedents would result in immediate dismissal did Mr. Bucklew finally point to nitrogen hypoxia. The district court then afforded Mr. Bucklew “extensive discovery” to explore the viability of that alternative.