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Brief of Scholars and of Academics of Constitutional Law As Amicus Curiae in Support of Petitioner ______

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Brief of Scholars and of Academics of Constitutional Law As Amicus Curiae in Support of Petitioner ______ No. 17-8151 IN THE In the Supreme Court of the United States _________ RUSSELL BUCKLEW, Petitioner, v. ANNE. L. PRECYTHE, DIRECTOR, DEPARTMENT OF CORRECTIONS, Respondent. _________ On Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit _________ BRIEF OF SCHOLARS AND OF ACADEMICS OF CONSTITUTIONAL LAW AS AMICUS CURIAE IN SUPPORT OF PETITIONER _________ Bruce H. Schneider Counsel of Record David J. Kahne Emily L. Kuznick STROOCK & STROOCK & LAVAN LLP 180 Maiden Lane New York, New York 10038 Counsel for Amicus Curiae July 23, 2018 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ....................................... ii INTEREST OF AMICUS CURIAE ............................. 1 SUMMARY OF ARGUMENT ..................................... 3 ARGUMENT ................................................................ 5 I. STATES CANNOT TRUNCATE THE RIGHTS SECURED BY THE EIGHTH AMENDMENT BECAUSE OF LIMITS IMPOSED BY STATE LAW OR RESOURCES. ...................................................... 5 A. THERE HAS BEEN A TROUBLING HISTORY OF CRUEL AND UNUSUAL LETHAL INJECTIONS. ......... 6 B. IF STATES CAN PRE-DEFINE WHAT METHODS OF EXECUTION ARE “AVAILABLE,” THEN ANY CRUELTY IS INSULATED FROM REVIEW. ................................................... 10 II. THE EXPERIENCE OF COUNTRIES AROUND THE WORLD HELPS TO INFORM WHAT METHODS OF EXECUTION ARE “AVAILABLE” AND ILLUSTRATES HOW LETHAL INJECTION IS AN OUTLIER IN WORLD PRACTICE. ...... 19 III. THE METHODS OF EXECUTION USED IN THE UNITED STATES FURTHER INFORM WHAT METHODS ARE “AVAILABLE” AND ILLUSTRATE A BROAD RANGE OF ALTERNATIVES. ........... 23 CONCLUSION .......................................................... 27 ii TABLE OF AUTHORITIES Page(s) Cases Arthur v. Dunn, 137 S. Ct. 725 reh’g denied, 137 S. Ct. 1838 (2017) .......................................... 18 Arthur v. Dunn, 2016 WL 1551475 (M.D. Ala. April 15, 2016) .................................... 13 Arthur v. Dunn, 2016 WL 3912038 (M.D. Ala. July 19, 2016) ..................................... 15 Baze v. Rees, 553 U.S. 35 (2008) ........................................ passim Bible v. Davis, 2018 WL 3068804 (S.D. Tex. June 21, 2018), aff’d, 2018 WL 3156840 (5th Cir. June 26, 2018) ....................................... 15 Boyd v. Myers, 2015 WL 5852948 (M.D. Ala. Oct. 7, 2015) ........................................ 15 Brooks v. Warden, 810 F.3d 812 (11th Cir. 2016) .............................. 13 Campbell v. Wood, 511 U.S. 1119 (1994) ............................................ 25 iii Farmer v. Brennan, 511 U.S. 825 (1994) ........................................ 10, 11 Glossip v. Gross, 135 S.Ct. 2726 (2015) ................................... passim Grayson v. Dunn, 156 F. Supp. 3d 1340 (M.D. Ala. 2015)................ 14 Helling v. McKinney, 509 U.S. 25 (1993) ............ 10, 11 Johnson v. Lombardi, 2015 WL 6501083 (W.D. Mo. Oct. 27, 2015), cert. denied, 136 S.Ct. 601 (2015) ........................ 12 Jones v. Kelley, 854 F.3d 1009 (8th Cir. 2017) .............................. 14 Jordan v. Fisher, 823 F.3d 805 (5th Cir. 2016) ................................ 16 Kelley v. Johnson, 2016 Ark. 268 (2016) ...................................... 13, 15 Martin v. Hunter’s Lessee, 14 U.S. 304 (1816) ........................................... 18-19 McGehee v. Hutchinson. 854 F.3d 488 (8th Cir. 2017) .......................... 11, 12 In re Ohio Execution Protocol, 860 F.3d 881 (6th Cir. 2017) .......................... 14, 15 Payne v. Tennessee, 501 U.S. 808 (1991) .............................................. 18 iv Wilkerson v. Utah, 99 U.S. 130 (1878) .................................................. 5 Statutes Eighth Amendment ........................................... passim Georgia Code OCGA § 50-13-4 .................................. 16 H. 4038, http://www.scstatehouse.gov/ sess121_2015-2016/bills/4038.htm ...................... 24 Miss. Code Ann. § 99-19-51 ....................................... 24 N.H. Rev. Stat. § 630:5 .............................................. 25 Oklahoma, Sta. Ann. 22, § 1014 ............................... 17 Oklahoma, Sta. Ann. 22, § 1014 (D) ......................... 24 Revised Code of Washington 10.95.180 .................... 25 South Dakota Code SDCL 23A-27A-32 .................... 16 Utah Code Ann. § 77-18-5.5 ...................................... 24 Other Authorities Amnesty International, Maldives: Halt plans to carry out first execution in more than six decades, Jul. 20, 2017, https://www.amnesty.org/en/latest/news/ 2017/07/maldives-halt-first-execution-in- more-than-60-years/ ............................................. 20 v The Atlantic, The Cruel and Unusual Execution of Clayton Lockett, June 2015, https://www.theatlantic.com/ magazine/archive/2015/06/execution- clayton-lockett/392069/ .......................................... 8 Tom Batchelor, Doyle Lee Hamm execution: Repeated jabbing of death row inmate in attempted lethal injection amounts to torture, says lawyer, THE INDEPENDENT, Feb. 26, 2018, https://www.independent.co.uk/news/ world/americas/doyle-lee-hamm- execution-alabama-death-row-lethal- injection-torture-lawyer-latest- a8229241.html ........................................................ 9 Cornell Law School, Cornell Center on the Death Penalty Worldwide, Death Penalty Database, http://www.deathpenaltyworldwide. org/search.cfm ................................................ 20, 21 Cornell Law School, Cornell Center on the Death Penalty Worldwide, Indonesia, http://www.deathpenaltyworldwide. org/country-search-post.cfm?keyword =shot+to+the+head .............................................. 22 Death Penalty Information Center, Examples of Post-Furman Botched Executions, https://deathpenaltyinfo.org/ some-examples-post-furman-botched- executions ....................................................... 6, 7, 8 vi Death Penalty Information Center, Methods of Execution, https://deathpenaltyinfo.org/ methods-execution ............................................... 26 Death Penalty News, Papua New Guinea Rules Out Lethal Injection in Hunt for Execution Method, October 14, 2014, http://deathpenaltynews.blogspot.co.uk/2 014/10/papua-new-guinea-rules-out- lethal.html ............................................................ 20 Deborah W. Denno, The Firing Squad as “a known and available alternative method of execution” post-Glossip, August 9, 2016 ............................................ 8, 23, 24 The Edition, Maldives amends capital punishment law to opt for death by hanging, Jun. 17, 2016, https://edition.mv/news/148 ................................. 20 Fox13Now, The men on Utah’s death row and how they want to die, Feb. 12, 2016 http://fox13now.com/2016/02/12/the-men- on-utahs-death-row-and-how-they-want- to-die/ .................................................................... 24 Fox News U.S., A glance at the 5 execution methods allowed in the US today and how they work, May 23, 2014, http://www.foxnews.com/us/2014/05/ 23/glance-at-5-execution-methods- allowed-in-us-today-and-how-work.html ............ 25 vii Katie Fretland, Scene at botched Oklahoma execution of Clayton Lockett was ‘a bloody mess,’ THE GUARDIAN, Dec. 13, 2014, https://www.theguardian.com/ world/2014/dec/13/botched-oklahoma- execution-clayton-lockett-bloody-mess .................. 8 The Independent, Thailand uses lethal injection to execute first prisoner in nearly a decade, June 19, 2018, https://www.independent.co.uk/news/ world/asia/thailand-execution-death- penalty-lethal-injection-amnesty- international-a8405711.html ............................... 20 Kate Lamb, Death Penalty in Indonesia: An Executioner’s Story, THE GUARDIAN, Mar. 5, 2015, https://www.theguardian. com/world/2015/mar/06/death-penalty-in- indonesia-an-executioners-story .......................... 22 Maldives to Execute Death Row Inmates by Hanging, MALDIVES INDEPENDENT, Jun. 19, 2016, https://maldives independent.com/politics/maldives- to-execute-death-row-inmates-by- hanging-124872 .................................................... 20 Salam Al Amir, Moosa Killer Begged for Forgiveness at Execution, THE NATIONAL, https://www.thenational.ae/ uae/moosa-killer-begged-for-forgiveness- at-execution-1.377015 .......................................... 22 viii Austin Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty (2014) ............................................................ passim Supreme Court Rule 37.6 ............................................ 1 WSFA, AL lawmaker wants to add firing squad to death row options, Jan. 31 2017, http://www.wsfa.com/ story/34392999/al-lawmaker-wants-to- add-firing-squad-to-death-row-options ................ 24 INTEREST OF AMICUS CURIAE1 Amicus Curiae2 is comprised of legal scholars and academics (“Amicus”) who have spent their careers studying and teaching United States constitutional law, including the death penalty and methods of execution, and many have written scholarly articles on these topics. The below listed members of Amicus respectfully submit this brief urging reversal of the decisions below. The below listed members of Amicus are concerned and seek to apprise the Court of information regarding the “availability” of alternative methods of execution to be considered in clarifying the applicable Eighth Amendment standard for method-of-execution challenges. • William W. Berry III, Associate Professor of Law, Frank Montague, Jr. Professor of Legal Studies and Professionalism, University of Mississippi School of Law,
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