** ADVANCE FOR SUNDAY SEPT. 30 ** FILE ** Alabama’s lethal injection chamber at Holman Correctional Facility in Atmore, Ala., is pictured in this Oct. 7, 2002 file photo. Alabama has joined a growing list of Southern states facing court challenges to their method of capital punishment. A trial starting Oct. 3 will determine whether Alabama’s lethal injection procedures cause the condemned to suffer unconstitutionally cruel pain before they die and whether Alabama might have to temporarily halt executions as Florida did.(AP Photo/File)
Today, the US Supreme Court handed down a decision that will make a profound change in how the death penalty is administered in the United States.
Personally, I’m opposed to the death penalty. That opposition is based on two things. First, the time lag from conviction to execution is typically one or more decades. That, to me, negates the deterrent or even the retributive aspects and reduces it to being mauled to death by DMV clerks. Second, the bone-deep corruption in our justice system which routinely uncovers prosecutors knowingly convicting people on the most flimsy of evidence and elected prosecutors using tough sentencing as a campaign tool doesn’t make me want to give this system the power to take a life. Combine these two together and I’m basically against the idea.
For some years, there have been a couple lines of attack. One, that, under the so-called “evolving standards of decency” dogma Earl Warren pulled from his fourth point of contact and didn’t even bother wiping off before serving it up as the law of the land, capital punishment is “cruel and unusual” in and of itself as it violates human dignity. Second, particular means of execution have been attacked as cruel and unusual because they might hurt the condemned. This has led to the whole garden industry of lawyers gibbering about botched executions. Electrocution has been attacked on the grounds that the condemned might end up with unsightly burns and cooked internal organs. Lethal injection has been attacked on the grounds that the sedative leaves the condemned semi-conscious and able to feel the potassium chloride entering their heart. The classic case is Mitchell Rupe, a murderer on Washington’s death row, who successfully argued that his 300-lb ass might very well result in his head being detached if he were hanged. Underline successfully argued. Judges actually believed that crap.
The case today was in the latter category.
[Russell] Bucklew has been on death row in Missouri for 20 years for the 1996 murder of Michael Sanders, who at the time was living with Stephanie Ray, Bucklew’s former girlfriend. As part of the same series of events, Bucklew kidnapped and raped Ray, and he wounded a state trooper during a shootout. Bucklew has a condition known as cavernous hemangioma, which causes fragile blood-filled tumors to grow in his head, neck and throat.
One of the main points of contention before the court was Bucklew’s assertion that, if the state follows its lethal-injection protocol, he could wind up choking on his own blood and in extreme pain. Bucklew’s attorney, Robert Hochman, told the justices that the team carrying out the execution could have to try to administer the drug used in the lethal-injection protocol through Bucklew’s femoral vein – in essence, Hochman stressed, “carving up” Bucklew’s leg for up to 15 minutes. More broadly, Hochman complained, the execution team would not have critical information about Bucklew that would allow it to address his particular needs and potentially alleviate his pain, nor would Bucklew and his lawyers have information about the team’s training and experience. Hochman urged the court, at the very least, to invalidate the lower court’s ruling and send the case back for more fact-finding on whether the state’s lethal-injection protocol can be changed to reduce the likelihood that Bucklew will suffer.
In a 5-4 decision, following predictable lines, the Supreme Court agreed with Missouri that Bucklew could not object to his means of execution so long as it was lawful and wasn’t calculated to cause pain. Basically, as he was going to be dead, his discomfort in achieving that status didn’t really matter. This is how ThinkProgress billed it: Gorsuch just handed down the most bloodthirsty and cruel death penalty opinion of the modern era. Millhiser is your typical goateed hipster who claims to be a martial arts enthusiast who has had several bones broken in learning whatever it is he practices, probably douchebag-do. He essentially wet himself in panic as he wrote this.
Gorsuch then surveys the kinds of punishments that would have been forbidden at the time of the framing. “These included such ‘[d]isgusting’ practices as dragging the prisoner to the place of execution, disemboweling, quartering, public dissection, and burning alive, all of which Blackstone observed ‘savor[ed] of torture or cruelty.’” He adds that “by the time of the founding, these methods had long fallen out of use and so had become ‘unusual.’”
Notice what Gorsuch just did there. He neither mentions evolving standards nor concedes the relevance of anything that has transpired in the last 200 years. He also redefines the word “unusual” to mean punishments that “had long fallen out of use” at “the time of the founding,” not punishments that are uncommon today.
That’s a simply breathtaking shift in the court’s understanding of the Eighth Amendment which, without admitting that it’s doing so, overrules decades of established law. Among other things, the Supreme Court relied on the “evolving standards of decency” test in its decisions forbidding the execution of the intellectual disabled and of juvenile offenders. Those decisions, among many others, are now in jeopardy.
To add insult to injury, Gorsuch also takes several swipes at Bucklew’s arguments and the arguments raised by the dissent, claiming that “his suit in the end amounts to little more than an attack on settled precedent” — the precedent established in Glossip. Gorsuch isn’t wrong that it’s tough to square Bucklew’s arguments with the bloodthirsty opinion Alito handed down in Glossip. But he hardly has standing to criticize anyone for disrespecting precedent.
Bucklew literally tears out the heart of more than a half-century worth of Eighth Amendment precedents, and replaces it with a very different legal rule that, until recently, was rejected by all but the Supreme Court’s most hardline conservatives.
And Bucklew could represent far more than a turning point in the Supreme Court’s understanding of just one amendment. Kavanaugh’s crocodile tears during oral argument suggest that there is little hope that he will prove to be a moderating force on the Supreme Court. And the majority’s willingness to cast aside one of the most firmly established assumptions of constitutional law so casually suggests that they will do it again.
Whether the nation wants a death penalty is a political question that should be left to the voters and, through them, to state legislators. The death penalty, as Gorsuch stated in his opinion, is clearly constitutional
The Constitution allows capital punishment. In fact, death was “the standard penalty for all serious crimes” at the time of the founding. Nor did the later addition of the Eighth Amendment outlaw the practice. On the contrary—the Fifth Amendment, added to the Constitution at the same time as the Eighth, expressly contemplates that a defendant may be tried for a “capital” crime and “deprived of life” as a penalty, so long as proper procedures are followed.
It is not the role of the judiciary to decide what is or isn’t decent. It certainly isn’t the role of judges to subscribe to the buffoonery we typically see in many capital cases where the condemned objects to being killed and attacks the method of his projected exit from this mortal coil. If capital punishment is to survive as anything but an artifact, as a way of keeping a condemned man in suspense while he lives 60 years on death row, it must be sure and the judgment must have some sense of finality. For good or ill, the Supreme Court did that today.
Gorsuch's atrocious opinion in today's death penalty case essentially convert's Thomas' extreme interpretation of the 8th Amendment—long considered a fringe view—into the law of the land. Just jaw-dropping. https://t.co/5Y9O5iS8Ty pic.twitter.com/iMIuoBEQhu
— Mark Joseph Stern (@mjs_DC) April 1, 2019
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