April 13, 2019 

The death penalty, apart from its questionable morality, bias in its application and the possibility of wrongful conviction, is an historical relic. This was made clear by the Supreme Court in Bucklew v. Precythe, decided April 1. The appeal involved a claim by a prisoner that the form of execution in his state violates the Eighth Amendment, which prohibits cruel and unusual punishments. His principal argument was that, because of his unusual medical condition, the lethal injection would cause great suffering before taking effect. The majority opinion, written by Justice Gorsuch, rejected the claim, along the way not only validating the death penalty but deciding that the infliction of pain in the process raised no Constitutional issue. 

The Bucklew decision did not appear from nowhere. Justice Gorsuch relied on two prior decisions, Baze v. Rees, 553 US 35 (2008) and Glossip v. Gross, 576 U.S. ___ (2015). The lead opinion in Baze was signed by only three Justices. However, Glossip treated the plurality opinion as if it were precedent, referring to it as the “controlling opinion.” Baze relied in turn on Gregg v. Georgia, the lead opinion of which was, again, that of only three member of the Court. It’s difficult to discern a well-considered theory of capital punishment in all of this. Bucklew follows their lead, but the defects in Gorsuch’s opinion go beyond following flawed predecessors. 

Much of the Bucklew opinion is devoted to the question of whether an alternative, less painful method, of execution is available. Baze and Glossip establshed rules which placed the burden of identifying an alternative method on the prisoner and made it difficult to carry that burden. 

The death penalty itself poses no problem for Gorsuch because the “Constitution allows capital punishment. . . . In fact, death was ‘the standard penalty for all serious crimes’ at the time of the founding.” The internal quote is from a book on the history of the death penalty published in 2002.[32] It appears to have been a primary source for Gorsuch, cited seven times in his opinion. However, the Constitution does not “allow” capital punishment; it simply recognizes its existence. True, the Baze plurality opinion cited “the principle, settled by Gregg, that capital punishment is constitutional.” However, the Gregg lead opinion stated only “that the punishment of death does not invariably violate the Constitution,” which is not quite the same concept. 

There would seem to be no impediment to the Court’s declaring capital punishment a violation of the Eighth Amendment, but Justice Gorsuch thinks otherwise. The Court, in his view, would lack the power or authority to declare it unconstitutional: “the judiciary bears no license to end a debate reserved for the people and their representatives.” It will be interesting to see whether he is so reticent when an issue he feels strongly about arises. 

As to the merits, Gorsuch would not find that the death penalty is barred as cruel punishment. For authority, he cited a case from 1890 which declared that “the punishment of death is not cruel, within the meaning of that word as used in the Constitution. [Cruelty] implies . . . something inhuman and barbarous, something more than the mere extinguishment of life.” [33] It’s stunning that a Supreme Court opinion in 2019 could refer, even by way of citation, to the “mere” extinguishment of life. 

An enlightened approach would be to interpret the Constitution against the background of present conditions, including less brutal attitudes, rather than treating it as holy writ, ending progress in 1791. That the latter is Justice Gorsuch’s theory is made clear. The opinion’s argument relies on such phrases as “at the time of the framing,” “consistent with the Constitution’s original understanding,” “at the time of the Amendment’s adoption,” “the original and historical understanding of the Eighth Amendment.” 

The Court has not always felt bound by the view of life at a time long past. In 1958, Chief Justice Earl Warren expressed an interpretation which has been generally accepted: "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[34] That was reaffirmed in 2002, in Atkins v. Virginia, an Eighth Amendment death penalty case: “A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of Rights was adopted, but rather by those that currently prevail." [35] No longer, apparently. Presumably the present Court would find the fact that twenty states and the District of Columbia now do not impose the death penalty,[36] an indication of evolving standards, to be irrelevant. Perhaps if a few more states evolve, capital punishment will become “unusual.” No, that wouldn’t conform to the understanding at the time of the Amendment’s adoption, which underlies Gorsuch’s interpretation. 

“[W]hat unites the punishments the Eighth Amendment was understood to forbid, and distinguishes them from those it was understood to allow, is that the former were long disused (unusual) forms of punishment . . .” Apparently a new form of barbarity would not be banned as unusual. As to the other element, the Amendment barred anything that “intensified the sentence of death with a (cruel) superadd[ition] of terror, pain, or disgrace.”[37] Therefore, the added, possibly avoidable, pain in the execution of Mr. Bucklew isn’t prohibited on the ground of cruelty either, as it isn’t intentional torture, just part of the process. 

As to the prisoner’s argument about the pain he would, uniquely, endure, Gorsuch advised us that, in the bad old days, prisoners were subjected to barbaric practices such as drawing and quartering, and those were the cruel punishments contemplated at the end of the Eighteenth Century and therefore barred by the Eighth Amendment. Pain imposed by execution couldn’t be an issue because the preferred method of execution at the time of its adoption was hanging and, although hanging often resulted in significant pain, its use “was virtually never questioned,” quoting his favorite source. 

What does his history lesson disclose as to the proper interpretation of the Eighth Amendment? “For one thing, it tells us that the Eighth Amendment does not guarantee a prisoner a painless death—something that, of course, isn’t guaranteed to many people, including most victims of capital crimes.” In that remarkable statement, he excused the infliction of pain on historical grounds, then leaped to an-eye-for-an-eye excuse. 

If defense of the death penalty, and the suffering it inflicts, requires as convoluted an argument as this opinion, there must be something fundamentally suspect about it. 

Postscript: 

As I was about to post this note, I came across an article reporting a decision in a similar case from a different state, but again involving a death-row prisoner’s request for an alternative to lethal injection. The Supreme Court decided 5-4 that the execution could proceed as planned. The article stated that the “high court’s order and dissenting opinion underscored the divide between the court’s conservative and liberal justices over 11th-hour execution challenges,” noting also the dispute in the Bucklew case. 

However, it isn’t sufficient description, or enough justification, to label the Gorsuch opinion, or its predecessors, or any defense of the death penalty simply as conservative views. Conservatism, insofar as it is the tendency to honor tradition and resist hasty or ill-considered change, not only is respectable, but is necessary to preserve continuity and to prevent mistakes and disruption of social fabric. However, when it it becomes unthinking opposition to change or defense of the indefensible, it prevents progress, and when it is, as here, an unwarranted worship of the past, it binds civilization with rusty chains.

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32. S. Banner, The Death Penalty: An American History
33. In re Kemmler, 136 U. S. 436, 447 (1890)
34. , 356 U.S. 86 (1958)
35. 536 U. S. 304, 311 (2002)
36. Moratoria are in effect in another three states. https://deathpenalty.procon.org/view.resource. php?resourceID=001172
37. Quoting the concurring opinion of Justice Thomas in Baze, [internal quotes omitted].