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The Death Penalty and the Conservative Court

This is what a conservative Supreme Court gets?
April 2, 2019
The Death Penalty and the Conservative Court
(Mike Simons/Getty Images)

Yesterday, the Supreme Court issued a decision in Bucklew v. Precythe, in which a death row inmate sought a less gruesome means of execution—not a lifting of his death sentence, mind you—and the court found against him.

Russell Bucklew was convicted of murder 22 years ago and sentenced to death by lethal injection of pentobarbital by the State of Missouri. Bucklew has a rare medical condition called cavernous hemangioma. This malformation of blood vessels creates blood-filled lesions throughout his head, neck, and throat. Bucklew’s attorneys claim that lethal injection may cause these lesions to burst, causing an agonizing and gory death. The contention is that in Bucklew’s specific case, death by lethal injection is cruel and unusual and thus in violation of the Eighth Amendment.

The Court found against this claim by a 5-4 vote, with the majority opinion written by Justice Gorsuch.

The principal arguments for the death penalty center around fairness and retribution for victims. These justifications thread throughout Gorsuch’s opinion. Bucklew’s petition claimed that if the state used an alternative method of execution (specifically nitrogen hypoxia) it would not constitute cruel and unusual punishment, because it would kill him without causing the massive hemorrhaging (and resultant suffocation and bleeding) that pentobarbital may cause him.

Perhaps this is what a “big win” for the new conservative majority looks like. Yay.

Some takeaways:

(1) As with other hot-button issues, including abortion and gun rights, the question about the death penalty is: How much power do we want the government to have over individual liberties?

If abortion were criminalized, it would be the government that would put doctors in jail. If gun rights were curtailed, it would be the government that would confiscate banned weapons. And when we’re talking about capital punishment, it’s the government that lawfully murders people in 30 states and at the federal level—1,493 people since 1976.

Conservatives are normally naturally distrustful of the efficacy, intelligence, and fairness of government mechanisms. Remember the Lois Lerner controversy over the IRS targeting of select political groups? Talk about the EPA or SEC or CFPB and conservatives will tell you all about how government can mess up the lives of citizens through incompetence, bad faith, or both.

Except when it comes to capital punishment. There, suddenly—unrealistically—the machinery of government gets the benefit of the doubt. Even though nearly every single review shows that the government makes mistakes in a substantial percentage of death penalty cases, and at least 160 people on death row have been exonerated for convictions that were based on bad evidence.

And even though statistics show that the odds of a death sentence for African-Americans is disproportionately higher than for white defendants for similar crimes.

If you think the government handles the DMV badly, why would you want to expand its authority over citizens to a point where reversal of a mistake becomes impossible, because the citizen is dead?

(2) According to the Supreme Court, “[t]he Constitution allows capital punishment.”

The legal grey area is around what is “cruel” and what is “unusual.” What’s off the table under this standard? According to the majority in Bucklew (cover the kids’ ears here), things like “dragging the prisoner to the place of execution, disemboweling, quartering, public dissection, and burning alive . . . were undoubtedly ‘cruel.’” Good to know.

Justice Gorsuch goes on to explain that the word “cruel” at the time of the Eighth Amendment’s ratification meant “pleased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting.”

Gorsuch elaborates on what would cross an Eighth Amendment red line in 2019: “whether the State’s chosen method of execution cruelly superadds pain to the death sentence.”

Pain-superadding is a tough legal standard to wrap one’s mind around. (Maybe it’s like a penumbra, but for conservatives.)

Note that, at one point in America’s history, the Supreme Court took compassion quite seriously. Executions stopped between 1972 and 1976 in the wake Furman v. Georgia, in which the Court held that the sentence could not be imposed arbitrarily—states needed to adopt standards to guide judges and juries.

So the states came up with some, and here we are today arguing about which killing protocols are okay and which are not. Bottom line: Nobody is entitled to a pain-free execution. (Note that violence by the prison system is constitutionally tolerated too. Prison guards can use force against inmates unless done to “maliciously and sadistically . . . cause harm.”)

(3) Inmates can challenge methods of execution, but the bar set by the Supreme Court is a high one: the proposed alternative must be one that’s “feasible, readily implemented, and in fact significantly reduces a substantial risk of pain.”

The problem for the majority in Bucklew is that Bucklew didn’t submit enough evidence to justify further court proceedings on the nitrogen hypoxia alternative to pentobarbital. In her dissenting opinion, Justice Sotomayor quipped that “there is no sound basis in the Constitution for requiring condemned inmates to identify an available means for their own executions.” (Justice Kavanaugh was careful to calibrate that standard in his concurring opinion, as well.) The state is not burdened with identifying less painful means of killing people.

(4) It’s impossible to get around the subjectivity inherent in Eighth Amendment decisions.

Put another way, the justices inevitably impose their own value judgments in making Eighth Amendment decisions, because the language of the Constitution itself is vague and undefined.

In Bucklew, Justice Gorsuch carefully reasoned that Bucklew’s rationales for the nitrogen hypoxia option “rest on speculation unsupported.” Those passages—which focus on a study of euthanasia in horses to determine whether the two drug options would facilitate a pain-free “twilight stage [that] would last 20 to 30 seconds,” and whether “he would have trouble managing his airway . . . if he were forced to lie supine”—are hard to read.

But Gorsuch went further, pinging Bucklew with pursuing a lawsuit that “has now carried on for five years and yielded two appeals to the Eighth Circuit, two 11th-hour stays of execution, and plenary consideration in this Court,” while “[t]he people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them deserve better.”

That is an ethical value judgment, full stop. Not a legal analysis.

(5) If cruelty in executions is to end, it will have to be vanquished by voters.

Here’s Justice Gorsuch again: “The same Constitution that permits States to authorize capital punishment also allows them to outlaw it. But it does mean that the judiciary bears no license to end a debate reserved for the people and their representatives.”

This last line by Justice Gorsuch is a bit ironic. In Bucklew, as with many death penalty cases, the Supreme Court did resolve the ethical debate—in favor of a potentially brutal, if not unconstitutional, execution.

There’s no getting around that.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins) and What You Need to Know About Voting—and Why (HarperCollins). Her latest book is How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Twitter: @kimwehle.