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Eighth Amendment

Bucklew v. Precythe


The possibility of a painful death is not sufficient to find a facial violation of the Eighth Amendment when evaluating a state’s administration of the death penalty. In Baze v. Rees,1×1. 553 U.S. 35 (2008). a plurality of the Supreme Court found that a state’s use of a particular execution protocol facially violated the Eighth Amendment only if the defendant identified a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain” (the “alternative-procedure requirement”).2×2. Id. at 52. A majority of the Court later affirmed that position in Glossip v. Gross.3×3. 135 S. Ct. 2726 (2015); see id. at 2737–38. Last Term, in Bucklew v. Precythe,4×4. 139 S. Ct. 1112 (2019). the Court held that the alternative-procedure requirement extends to as-applied method-of-execution challenges.5×5. See id. at 1126–29. Because no suitable alternative procedure was available, Missouri could execute a death row inmate despite the fact that its current lethal injection protocol could aggravate his unique medical condition and cause him to suffocate on his own blood.6×6. See id. at 1129–33; id. at 1136 (Breyer, J., dissenting). Though the Court has limited the exercise of the death penalty and other forms of punishment in the past, Bucklew illustrates that the judiciary is neither inclined nor able to curb the death penalty as it exists today. Death penalty abolitionists should focus on convincing legislatures rather than courts to curtail the practice.

Stephanie Ray ended her relationship with Russell Bucklew in 1996.7×7. Id. at 1119 (majority opinion). After he sliced her jaw, “punched her in the face, and threatened her with a knife,” she moved out of their home and into the residence of Michael Sanders.8×8. Id. Some days later, Bucklew broke into Sanders’s home, murdered Sanders, fired a gun at Sanders’s six-year-old son, and raped Ray at gunpoint.9×9. See id. A state trooper finally arrested him after a shootout, but “[a]s a coda,” Bucklew escaped from jail and attacked Ray’s mother with a hammer.10×10. Id. Then, after numerous rounds of litigation,11×11. See State v. Bucklew, 973 S.W.2d 83, 86 (Mo. 1998); Bucklew v. State, 38 S.W.3d 395, 401 (Mo. 2001); Bucklew v. Luebbers, 436 F.3d 1010, 1013 (8th Cir. 2006). Bucklew faced a chilling reality: he was a convicted murderer and would pay with his life.12×12. See Bucklew, 139 S. Ct. at 1119.

Now fighting for survival, Bucklew joined other inmates in challenging Missouri’s lethal injection protocol under Missouri’s Administrative Procedure Act,13×13. Mo. Rev. Stat. § 536.021 (1986); Middleton v. Mo. Dep’t of Corr., 278 S.W.3d 193, 194 (Mo. 2009); see Bucklew, 139 S. Ct. at 1120. federal statutes,14×14. Ringo v. Lombardi, 677 F.3d 793, 795 (8th Cir. 2012). and the Eighth Amendment.15×15. Clemons v. Crawford, 585 F.3d 1119, 1122 (8th Cir. 2009). None succeeded.16×16. See Middleton, 278 S.W.3d at 194–95; Ringo, 677 F.3d at 795–96; Clemons, 585 F.3d at 1122. When Missouri altered its lethal injection protocol to use one drug instead of three, the inmates brought an additional Eighth Amendment challenge. See Bucklew, 139 S. Ct. at 1120. In response, Missouri amended its protocol to use a different drug. Id. Bucklew brought a final case only twelve days before his scheduled execution — this time, an as-applied Eighth Amendment challenge.17×17. Bucklew, 139 S. Ct. at 1120. Bucklew also brought a facial challenge to the new protocol, along with other inmates. See id. That case was dismissed. See Zink v. Lombardi, 783 F.3d 1089, 1096–97, 1114 (8th Cir. 2015) (en banc) (per curiam). Suffering from a unique medical condition that caused the growth of vascular tumors in his head, neck, and throat,18×18. Bucklew, 139 S. Ct. at 1120 (describing cavernous hemangioma). Bucklew would potentially “sputter, choke, and suffocate on his own blood for up to several minutes” if executed under Missouri’s current procedure.19×19. Id. at 1136 (Breyer, J., dissenting). The district court dismissed,20×20. Bucklew v. Lombardi, No. 14-8000-CV-W, 2014 U.S. Dist. LEXIS 84543, at *1 (W.D. Mo. May 19, 2014). but the Supreme Court stayed Bucklew’s execution so that the Eighth Circuit could hear his appeal.21×21. Bucklew v. Lombardi, 134 S. Ct. 2333 (2014) (mem.). The court of appeals remanded with leave to amend, concluding that Bucklew was required but had failed to identify an alternative procedure that would significantly reduce the risks caused by the current protocol.22×22. See Bucklew v. Lombardi, 783 F.3d 1120, 1128–29 (8th Cir. 2015) (en banc). On remand, Bucklew submitted lethal gas as a viable substitute.23×23. Bucklew, 139 S. Ct. at 1121. Specifically, Bucklew proposed nitrogen. Id.

The district court granted summary judgment for the State,24×24. Id. and the Eighth Circuit affirmed.25×25. Bucklew v. Precythe, 883 F.3d 1087, 1097 (8th Cir. 2018). Writing for a majority of the panel, Judge Loken26×26. Judge Wollman joined him. found no evidence that lethal gas would substantially reduce Bucklew’s risk of pain.27×27. Id. at 1096. Judge Colloton dissented, believing there to be a triable issue of fact.28×28. Id. at 1100 (Colloton, J., dissenting). The Eighth Circuit denied rehearing en banc29×29. Bucklew v. Precythe, 885 F.3d 527, 527 (8th Cir. 2018). over a dissent by Judge Kelly, who insisted that the alternative-procedure requirement should not apply to as-applied method-of-execution challenges.30×30. See id. at 528 (Kelly, J., dissenting). On Bucklew’s date of execution, the Supreme Court granted him another stay of execution to hear the case itself.31×31. Bucklew, 139 S. Ct. at 1122; Bucklew v. Precythe, 138 S. Ct. 1706 (2018) (mem.); Bucklew v. Precythe, 138 S. Ct. 1323 (2018) (mem.).

The Supreme Court affirmed.32×32. Bucklew, 139 S. Ct. at 1134. Writing for the Court, Justice Gorsuch33×33. Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh joined him. concluded that historically the Eighth Amendment had forbidden punishments only when they were “long disused (unusual)” and had “intensified the sentence of death with a (cruel) ‘superadd[ition]’ of ‘terror, pain, or disgrace.’”34×34. Id. at 1124 (alteration in original) (quoting Baze v. Rees, 553 U.S. 35, 48, 96 (2008)). If there were no feasible alternative, then the punishment could not have added any pain. He thus endorsed Baze and Glossip: To prove an Eighth Amendment violation, defendants had to first present “a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain.”35×35. Id. at 1125 (first citing Glossip v. Gross, 135 S. Ct. 2726, 2732–38 (2015); and then citing Baze, 553 U.S. at 52). If successful, defendants had to prove that the State had no justification for refusing to implement it.36×36. Id.

Justice Gorsuch rejected the argument that a different standard should govern as-applied challenges.37×37. See id. at 1126–29. Glossip had “expressly held that identifying an available alternative [was] ‘a requirement of all Eighth Amendment method-of-execution claims’ alleging cruel pain.”38×38. Id. at 1126 (quoting Glossip, 135 S. Ct. at 2731 (emphasis added)). Such a requirement was consistent with the history of the Eighth Amendment, which had always treated death penalty claims as a comparative exercise.39×39. See id. at 1126–27. Applying a different standard to as-applied challenges would also impermissibly condition Eighth Amendment jurisprudence on the breadth of the remedy sought and incentivize “pleading games.”40×40. Id. at 1128; see id. at 1127–28. The Court thus applied the Baze-Glossip test41×41. See id. at 1129. and concluded that Bucklew had not raised a triable issue of fact as to whether lethal gas was viable;42×42. See id. (concluding that “Bucklew’s bare-bones proposal [fell] well short of” being “sufficiently detailed to permit a finding that the State could carry it out ‘relatively easily and reasonably quickly’” (quoting McGehee v. Hutchinson, 854 F.3d 488, 493 (8th Cir. 2017) (per curiam))). whether Missouri had a legitimate reason for not adopting it as an alternative;43×43. See id. at 1129–30 (“[C]hoosing not to be the first to experiment with a new method of execution is a legitimate reason to reject it.”). whether lethal gas would “significantly reduce” the risk of pain;44×44. Id. at 1130–33. or whether lethal injection even posed a “substantial risk” of inflicting unnecessary pain.45×45. Id. Justice Gorsuch concluded with a lament for the delay caused by Bucklew’s Eighth Amendment battle and sang the virtues of the people, rather than the courts, deciding the fate of the likes of Bucklew via juries and state legislatures.46×46. See id. at 1133–34.

Justice Thomas concurred to reaffirm his view articulated in Baze that “a method of execution violate[d] the Eighth Amendment only if it [was] deliberately designed to inflict pain.”47×47. Id. at 1135 (Thomas, J., concurring) (quoting Baze v. Rees, 553 U.S. 35, 94 (2008) (Thomas, J., concurring in the judgment)). Justice Kavanaugh concurred to emphasize that the alternative-procedure requirement was not overly burdensome to defendants because the alternative did not need to be authorized by current state law.48×48. Id. at 1136 (Kavanaugh, J., concurring). While careful not to sanction any particular method of execution, he noted that a firing squad may have been a possibility.49×49. See id.

Justice Breyer dissented.50×50. Id. (Breyer, J., dissenting). Justices Ginsburg, Sotomayor, and Kagan joined him. First, there was “easily” a triable issue of fact as to whether lethal injection would cause Bucklew unconstitutional suffering.51×51. Id. at 1137; see id. at 1137–39. Second, the alternative-procedure requirement should not have governed Bucklew’s as-applied challenge,52×52. See id. at 1139–42. Regardless, Justice Breyer found that Bucklew had presented sufficient evidence to overcome summary judgment on the issue. See id. at 1142–43. despite the broad language in Glossip.53×53. Id. at 1140 (“We ‘often read general language in judicial opinion[s] as referring in context to circumstances similar to the circumstances then before the Court and not referring to quite different circumstances that the Court was not then considering.’” (alteration in original) (quoting Illinois v. Lidster, 540 U.S. 419, 424 (2004))). The Glossip Court was worried that “method-of-execution challenges [would become] a backdoor means to abolish capital punishment in general” and would interfere with the role of state legislatures — concerns that did not apply to Bucklew’s case.54×54. Id.; see id. at 1140–41. Given the rarity of Bucklew’s condition, exempting him from Missouri’s protocol would not have “effectively overrule[d]” the death penalty,55×55. Id. at 1140 (quoting Glossip v. Gross, 135 S. Ct. 2726, 2739 (2015)). and it was unlikely that Missouri’s legislature would have considered such a condition when adopting the protocol.56×56. See id. at 1140–41. Extending the alternative-procedure requirement to as-applied challenges was also unnecessary, because the executions in which Missouri had already used the new drug provided a sufficient basis of comparison to Bucklew’s possible suffering for conducting an Eighth Amendment analysis; inconsistent, because extending the requirement was contrary to precedent; and unconstitutional, because extending the requirement transformed the Eighth Amendment’s “categorical prohibition into a conditional one.”57×57. Id. at 1142 (quoting Glossip, 135 S. Ct. at 2793 (Sotomayor, J., dissenting)); see id. at 1141–42. Lastly, Justice Breyer (now writing for only himself58×58. Id. at 1136. ) criticized the majority for prioritizing expediency over constitutional rights.59×59. See id. at 1144–45.

Justice Sotomayor wrote her own dissent to further address the majority’s concern for expediency: “There are higher values than ensuring that executions run on time. If a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out.”60×60. Id. at 1148 (Sotomayor, J., dissenting). With a scolding look toward the majority, she added the following: “Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.”61×61. Id.

Bucklew caused outrage among those who expect the Court to protect politically weak minorities such as disfranchised death row inmates.62×62. Cf., e.g., Garrett Epps, Unusual Cruelty at the Supreme Court, The Atlantic (Apr. 4, 2019), https://www.theatlantic.com/ideas/archive/2019/04/bucklew-v-precythe-supreme-court-turns-cruelty/586471 [https://perma.cc/L59H-VZKX]; Mark Joseph Stern, The Supreme Court’s Conservatives Just Legalized Torture, Slate (Apr. 1, 2019, 1:14 PM), https://slate.com/news-and-politics/2019/04/supreme-court-neil-gorsuch-eighth-amendment-death-penalty-torture.html [https://perma.cc/3TT2-WWV3]. Such an expectation was misplaced. Although egregious and rare facts have led the Court to expand constitutional rights in the past — for instance, to protect black criminal defendants in interwar criminal procedure cases — egregious and rare facts were not enough to convince the Court to expand the Eighth Amendment to protect Bucklew. The question is what made Bucklew different. This disparity in outcomes likely results from the Court’s disinclination and incapacity to expand constitutional protections in the current context of capital punishment. The unsympathetic nature of many death penalty defendants and the prevalence and popularity of the death penalty make judicial challenges very difficult. Death penalty abolitionists should take a lesson from Bucklew and target legislatures, rather than courts, as the most viable vessels of progress in the capital punishment arena.

The Court has sometimes been a fruitful forum for expanding the constitutional rights of criminal defendants and other politically weak minorities. In the interwar period, the Court took an expansive view of the Fourteenth Amendment to protect criminal defendants who, like Bucklew, faced execution. Prior to 1920, the Court believed that the criminal procedure protections of the Federal Bill of Rights did not apply to the states, and it narrowly read the Fourteenth Amendment’s Due Process Clause.63×63. See, e.g., Hurtado v. California, 110 U.S. 516, 534–38 (1884) (holding that states are not required to obtain a grand jury indictment in criminal proceedings). Over the subsequent twenty years, the Court declared mob-dominated trials, discrimination in jury selection, and the admission of confessions obtained via torture to be unconstitutional practices by state courts.64×64. See Brown v. Mississippi, 297 U.S. 278, 286 (1936) (confessions obtained via torture); Norris v. Alabama, 294 U.S. 587, 596 (1935) (discrimination in jury selection); Moore v. Dempsey, 261 U.S. 86, 90–91 (1923) (mob-dominated trials).

But the Court’s inclination and capacity to enlarge constitutional rights for black criminal defendants in the interwar period were dependent on the facts of those cases — in particular, the fact that the punishments or procedures were egregious and rare. A look at the most influential cases is instructive. In Moore v. Dempsey,65×65. 261 U.S. 86. an all-white jury convicted the defendant under intense mob pressure;66×66. See id. at 87–90. in the Scottsboro cases, the defendants were nine likely innocent black teenagers, eight of whom were sentenced to death;67×67. See Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99 Mich. L. Rev. 48, 61, 64, 66 (2000). in Brown v. Mississippi,68×68. 297 U.S. 278. a mob tortured one of the defendants by hanging and whipping him until he confessed.69×69. See id. at 281–82. In addition to their appalling facts, these cases were outliers with respect to the criminal proceedings involved. “Black criminal defendants certainly were not treated this way in the North,” and “even in the South, many whites did not condone the sort of treatment of black criminal defendants that the Supreme Court denounced in these interwar decisions.”70×70. Klarman, supra note 67, at 75–76. Given the exceptional nature of these sham trials, it was easier for the Justices to justify their inclination (resulting from the egregious facts) to expand the Constitution’s criminal procedure protections.71×71. See id. at 76.

Bucklew also involved egregious facts and was an outlier. The image of Bucklew “sputter[ing], chok[ing], and suffocat[ing] on his own blood”72×72. Bucklew, 139 S. Ct. at 1136 (Breyer, J., dissenting). is a more appalling factual possibility than the sterilized image of a typical death by lethal injection. Executions are also rare in the modern day, despite a preponderance of death sentences,73×73. There were only twenty-five recorded executions in eight states in 2018, though 2654 people were known to be under the sentence of death. Amnesty Int’l, Death Sentences and Executions 2018, at 14 (2019). and Bucklew was one of only five people in the world known to suffer from the medical condition at issue in the case.74×74. Bucklew, 139 S. Ct. at 1137 (Breyer, J., dissenting). Combining these factors, one might have expected the Court to expand the Eighth Amendment to except as-applied challenges from the alternative-procedure requirement, consistent with its expansion of constitutional protections during the interwar period.

Beyond Court composition,75×75. Court composition is likely to blame for the Court’s unwillingness to expand the Eighth Amendment in Bucklew, but only partly. Justice Kennedy voted to stay Bucklew’s execution, a possible indication that he would have sided with the dissenters. See Bucklew v. Precythe, 138 S. Ct. 1323, 1323 (2018) (mem.). Justice Kavanaugh, on the other hand, was the fifth vote necessary to uphold Bucklew’s death sentence. Yet changes in court composition leading up to the interwar criminal procedure decisions were disadvantageous to those defendants as well. Eight years prior to declaring mob-dominated trials unconstitutional in Moore, the Court held in Frank v. Magnum, 237 U.S. 309 (1915), that a mob-dominated trial did not violate the Fourteenth Amendment so long as the defendant was able to raise his claim in a court other than the one being influenced by mob domination. See id. at 335–37. Between Frank and Moore, Justice Hughes, one of the two dissenters in Frank, resigned from the Court, and President Warren Harding made three conservative appointments. Klarman, supra note 67, at 59. “One would not have predicted that these Justices would jettison federalism restrictions on the Court’s supervision of state criminal proceedings.” Id. at 59–60. Yet the Court was willing to do so when the facts were sufficiently egregious and the cases sufficiently exceptional. two notable differences between Bucklew and the interwar cases can explain the Court’s refusal to spare Bucklew despite the egregious facts and outlier status of his case — one related to judicial inclination and the other to judicial capacity. First, the Court may be less inclined to expand the Eighth Amendment in the context of capital punishment because of the character of those seeking protection.76×76. See John D. Bessler, Revisiting Beccaria’s Vision: The Enlightenment, America’s Death Penalty, and the Abolition Movement, 4 Nw. J.L. & Soc. Pol’y 195, 322–23 (2009) (“When abolition occurs, it is never because guilty criminals are particularly sympathetic figures. They are not — and never will be — because their murderous acts are so vile and reprehensible.”). The Court is more likely to expand a right when the prospective beneficiaries are sympathetic. When the Court expanded the Fourteenth Amendment during the interwar period, the defendants were probably innocent, or at least not clearly guilty.77×77. See Klarman, supra note 67, at 64–69. The Court has been similarly inclined to expand the Eighth Amendment only when the defendants were more sympathetic than the typical death row inmate — defendants with mental disabilities, minors, and people who did not (or did not intend to) kill anybody.78×78. See Kennedy v. Louisiana, 554 U.S. 407, 412–13 (2008) (rapists of children); Roper v. Simmons, 543 U.S. 551, 555–56, 559–60 (2005) (minors); Atkins v. Virginia, 536 U.S. 304, 321 (2002) (people with mental disabilities); Coker v. Georgia, 433 U.S. 584, 597 (1977) (rapists of adults). When faced with a defendant such as Bucklew — a murderer, rapist, and domestic abuser who shot at a six-year-old — the Court is conversely disinclined to expand constitutional rights on his behalf. The Eighth Amendment legitimizes that disinclination, due to the inverse correlation between the cruelty of the offense and the cruelty of the punishment.79×79. Atkins, 536 U.S. at 311–12. In Eighth Amendment cases, courts evaluate the constitutionality of a punishment in light of the crime committed. A punishment might be unconstitutionally cruel for shoplifting but entirely acceptable for murder. Cf. id.

Compounding disinclination, the Court also lacked the capacity to expand the Eighth Amendment in Bucklew’s case; or, from a cynical perspective, the Court could feign incapacity to accommodate its disinclination. This incapacity, whether real or exaggerated, resulted from the death penalty’s being less of an outlier than most punishments and criminal proceedings that the Court has formerly held unconstitutional. Most states rarely use the death penalty, if at all.80×80. See supra note 73. Yet it is legal in a majority of them,81×81. In 2018, the death penalty was still legal in thirty states. Amnesty Int’l, supra note 73, at 15. and nearly fifty-four percent of Americans are in favor of it.82×82. Pew Poll Finds Uptick in Death Penalty Support, Though Still Near Historic Lows, Death Penalty Info. Ctr. (June 12, 2018), https://deathpenaltyinfo.org/news/pew-poll-finds-uptick-in-death-penalty-support-though-still-near-historic-lows [https://perma.cc/4TC8-3XTF]. It is an outlier by practice, not by law or public opinion. In contrast, convicting someone on the basis of a confession extracted through torture was illegal in every state when the Court decided Brown.83×83. See Klarman, supra note 67, at 67–68. The Supreme Court already experienced political backlash when it confronted state legislatures and struck down all of the existing capital punishment schemes in Furman v. Georgia.84×84. 408 U.S. 238 (1972) (per curiam); see William W. Berry III, Evolved Standards, Evolving Justices? The Case for a Broader Application of the Eighth Amendment, 96 Wash. U. L. Rev. 105, 117 (2018). Within a year, thirty-five states had reinstated the death penalty.85×85. Berry, supra note 84, at 107. It is thus unsurprising that the Court would hesitate to contravene state legislatures in the capital punishment arena in the same way again, especially after developing the emerging national consensus test. This test, which now governs all cruel and unusual punishment claims, places a doctrinal limit on the Court’s capacity to act against legislative intent; it premises an Eighth Amendment violation on the existence of an emerging national consensus (as indicated by state legislation) favoring such a narrowing.86×86. See, e.g., Roper v. Simmons, 543 U.S. 551 (2005); see also Berry, supra note 84, at 110, 116–18; Bessler, supra note 76, at 295; Roger Hood & Carolyn Hoyle, Abolishing the Death Penalty Worldwide: The Impact of a “New Dynamic,” 38 Crime & Just. 1, 54 (2009); Brian Daniel Anderson, Student Comment, Roper v. Simmons: How the Supreme Court of the United States Has Established the Framework for Judicial Abolition of the Death Penalty in the United States, 37 Ohio N.U. L. Rev. 221, 229–33 (2011).

Given the judiciary’s disinclination and incapacity to limit capital punishment, death penalty abolitionists should instead target state legislatures. First, because laws are divorced from the underlying facts, legislatures’ disinclination is easier to overcome.87×87. See Furman, 408 U.S. at 403–04 (Burger, C.J., dissenting); see also Bessler, supra note 76, at 296–300. It is easier to act on humanitarian principles when developing generalized laws than when facing the gruesome details of a murder such as Bucklew’s. Prospective abolition, the most common way for state legislatures to end capital punishment,88×88. Kevin Barry, From Wolves, Lambs (Part I): The Eighth Amendment Case for Gradual Abolition of the Death Penalty, 66 Fla. L. Rev. 313, 327 (2014). makes plain the limiting effect that individual cases can have on abolition. Not knowing what horrific deeds future murderers will commit, state legislatures are able to show leniency toward future murderers and abolish the death penalty, unhindered by vengeful impulses; they are not able to forgive past murders, already knowing their gory details.89×89. See id. at 316–25. With the case-or-controversy requirement, the judiciary must always confront the gory details of an individual case and is thus disinclined toward abolition in any form.90×90. See Harry Potter, Hanging in Judgment 167 (1993).

Second, the countermajoritarian difficulty91×91. The countermajoritarian difficulty is a common critique of unelected federal courts — namely, that they act against the majority will when they invalidate legislation. See, e.g., Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 Yale L.J. 153, 155 (2002); Note, Rights in Flux: Nonconsequentialism, Consequentialism, and the Judicial Role, 130 Harv. L. Rev. 1436, 1444–47 (2017). does not constrain state legislators, who can more easily overcome the public will than the judiciary — a concept abolitionists have termed “leadership from the front.”92×92. Franklin E. Zimring & Gordon Hawkins, Capital Punishment and the American Agenda 21–23 (1986); Kevin M. Barry, The Law of Abolition, 107 J. Crim. L. & Criminology 521, 529 (2017). Though this conclusion seems counterintuitive, nearly every country or state that has abolished the death penalty has done so against the public will, via the legislature.93×93. See Zimring & Hawkins, supra note 92, at 21–23; Barry, supra note 92, at 529–32; Jeffrey L. Kirchmeier, Another Place Beyond Here: The Death Penalty Moratorium Movement in the United States, 73 U. Colo. L. Rev. 1, 83–85 (2002). Legislative intervention does not run into the countermajoritarian difficulty because it is democratically legitimated.94×94. See Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 Harv. L. Rev. 1693, 1718 (2008). It is also harder to evade. Legislatures can work around holdings that are hostile to the death penalty. Governors cannot kill citizens when legislatures do not give them permission to do so. Lastly, voters may be more willing to forgive legislative intervention into the capital punishment arena than into other areas of the law. The death penalty’s implementation is infrequent and its impact narrow. Legislators thus have more freedom to go against the public will when it comes to capital punishment without major consequences to their political careers. Opposing public opinion is difficult in a political culture as populist as that of the United States.95×95. See Kirchmeier, supra note 93, at 86. But many states’ political branches have already demonstrated a willingness to do so.96×96. Barry, supra note 92, at 530. If death penalty abolitionists turn their attention away from the courts and toward state legislatures, this progress could accelerate and spread to new states.97×97. See Kirchmeier, supra note 93, at 109–10.

Needless to say, state legislatures cannot nationally abolish the death penalty on their own. Certain states are unlikely ever to do away with capital punishment without a federal constitutional amendment, which is unlikely, or a Supreme Court decision. Still, legislative reform should be the primary focus of abolitionists as a necessary step toward a nationwide ban obtained via the Court,98×98. See Frederick C. Millett, Will the United States Follow England (and the Rest of the World) in Abandoning Capital Punishment?, 6 Pierce L. Rev. 547, 644 (2007). which has expressly incorporated state legislation into its Eighth Amendment analysis through the emerging national consensus test.99×99. See Roper v. Simmons, 543 U.S. 551 (2005); see also Anderson, supra note 86, at 229–33. The factual circumstances of death penalty cases will also more closely mirror those of the interwar criminal procedure cases once a majority of states have abolished the death penalty. Bucklew may have been a more sympathetic defendant and his case more clearly an outlier were he on death row in one of only a few states to still have one. Given the current legislative consensus, however, a majority of the Court was unwilling, and perhaps unable, to show him any mercy.