Attorneys for a Columbia death row inmate believe a recent Supreme Court decision should not affect the status of his lawsuit.
Lawyers for Ernest L. Johnson said that the 5-4 high court decision upholding Russell Bucklew’s death penalty by lethal injection does not change the trajectory of their case. Johnson’s attorneys asked the Eighth Circuit Court of Appeals on Sept. 24 to send their lawsuit back to Missouri federal courts to argue that the state use nitrogen gas to execute him rather than lethal injection.
Johnson has fought the state’s attempt at execution by lethal injection for years. A jury convicted him to death for killing Mary Bratcher, Mabel Scruggs and Fred Jones in 1994 at the old Casey’s convenience store on Rice Road and Ballenger Lane. Johnson’s attorneys claim scar tissue left behind from a tumor removal would cause painful seizures when injected with pentobarbital.
The Supreme Court ruled that Bucklew had not proven that his medical condition would cause cruel and unusual punishment when a Missouri prison gives him a lethal injection of pentobarbital, and also argued for the use of lethal gas. The opinion, written by Justice Neil Gorsuch, said that the Eighth Amendment prohibiting such punishment does not require a state to use an “untried and untested” method of execution.
No state has yet used nitrogen gas to execute someone. The state of Oklahoma has started to pave the way for its use in 2018, studying its use. It is still in the process of implementing it for executions.
Johnson attorney Ginger Anders relied on these points to argue that nitrogen gas isn’t “untried and untested” in the sense that the Supreme Court meant. Just because no other state has used it, she said, does not make it a legitimate reason for Missouri to reject it. Missouri law still allows for the use of lethal gas in executions, but the state has not used gas since 1965.
“I do think that there is some nationwide momentum towards nitrogen,” Anders said. “This is the next method of execution that’s coming down the pike.”
Assistant Attorney General Gregory Goodwin said nitrogen gas is not feasible and readily implemented, two points a death row inmate must prove in order to get a switch in their method of execution. The lawsuit, like Bucklew’s, did not contain any details about how the state would use the gas, what concentration of gas would be needed or how long the inmate would be exposed to it.
“Mr. Johnson has essentially only alleged that there is some way to take some amount of some type of nitrogen and apply it,” Goodwin said. “That’s simply not enough.”
The three judge panel did not say when they might decide the case.