Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/55

Rh who have been sentenced to death. By adopting elaborate new rules regarding the need to show an alternative method of execution, the majority places unwarranted obstacles in the path of prisoners who assert that an execution would subject them to cruel and unusual punishment. These obstacles in turn give rise to an unacceptable risk that Bucklew, or others in yet more difficult circumstances, may be executed in violation of the Eighth Amendment. Given the rarity with which cases like this one will arise, an unfortunate irony of today’s decision is that the majority’s new rules are not even likely to improve the problems of delay at which they are directed.

In support of the need to end delays in capital cases, the majority refers to Dunn v. Ray, 586 U. S. ___ (2019). In that case, the Court vacated a stay of execution on the ground that the prisoner brought his claim too late. The prisoner in that case, however, brought his claim only five days after he was notified of the policy he sought to challenge. See id., at ___ (, dissenting) (slip op., at 3). And in the view of some of us, the prisoner’s claim—that prisoners of some faiths were entitled to have a minister present at their executions while prisoners of other faiths were not—raised a serious constitutional question. See id., at ___ (slip op., at 2) (characterizing the Court’s decision as “profoundly wrong”). And therein lies the problem. It might be possible to end delays by limiting constitutional protections for prisoners on death row. But to do so would require us to pay too high a constitutional price.

Today’s majority appears to believe that because “[t]he Constitution allows capital punishment,” ante, at 8, the Constitution must allow capital punishment to occur quickly. In reaching that conclusion the majority echoes an argument expressed by the Court in Glossip, namely, that “because it is settled that capital punishment is constitutional, it necessarily follows that there must be a