Cruel and Unusual …

The 8th Amendment to the U.S. Constitution reads:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Simple, right?  Not so much, actually.  The vague language has led to confusing and conflicting court rulings over the years, especially with shifts in society’s standards and the makeup of the Supreme Court.  What is ‘excessive’ bail or fines, and what constitutes ‘cruel and unusual’ punishments?  Better yet, who gets to decide those questions?

I will say right up front that I am against the death penalty.  I wasn’t always … I used to believe that certain people were irreparable and didn’t deserve to live.  And then I took a post-graduate class offered by The Innocence Project and learned how many death row inmates had been exonerated, how many times we had come too close to executing an innocent man or woman, and that changed my view.

Yesterday, the case of Missouri inmate, Russell Bucklew was decided by the Supreme Court.  In a nutshell, Mr. Bucklew was convicted of murdering a man who had been seeing his former girlfriend, and of kidnapping and raping her. His sentence … the death penalty.  Now, the preferred method of execution in Missouri is lethal injection, however Mr. Bucklew has a medical condition known as cavernous hemangioma which causes vascular tumors—clumps of blood vessels—to grow in his head, neck, and throat.  In the event of lethal injection, the tumours would rupture, causing him to sputter, choke and suffocate on his own blood for up to several minutes before he dies. Mr. Bucklew had requested a different form of execution, preferably nitrogen gas.

The Court handed down its decision yesterday, and in a 5-4 ruling said that Mr. Bucklew’s execution would proceed as planned, using lethal injection.  The justices who voted for this decision were Neil Gorsuch, Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr. and Brett M. Kavanaugh.  Justice Gorsuch wrote the majority opinion, claiming that Bucklew had waited too long to object to the way the state planned to execute him.

He further wrote …

Senate Holds Confirmation Hearing For Supreme Court Nominee Neil Gorsuch

Neil Gorsuch

“Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay. 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. We see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative — assuming, of course, that the inmate is more interested in avoiding unnecessary pain than in delaying his execution. A prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the state has refused to adopt without a legitimate penological reason.”

Gorsuch falsely claimed that Bucklew’s chosen alternative, Nitrogen gas, is not authorized by Missouri law and had never been used to carry out an execution in the United States.  In truth, it has been used by three states.

In her dissent, Justice Sonia Sotomayor wrote …

“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. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.”

I side with Justice Sotomayer on this … when a human life is involved, I prefer to err on the side of caution rather than expediency.

More importantly than just this one case, though, is the precedent this sets.  This may well be the most significant Eighth Amendment decision of the last several decades and the cruelest in at least as much time. Beyond the macabre facts of the Bucklew case, Gorsuch’s opinion also undercuts decades of Eighth Amendment law, potentially permitting states to revive punishments that fell out of favor 200 years ago.

Recall that the Constitution prohibits “cruel and unusual” punishments. The word “unusual” implies that, as a particular punishment becomes less and less common, it stands on weaker constitutional footing. Thus, as Chief Justice Earl Warren explained in a 1958 opinion, the Eight Amendment prohibits punishments that defy “evolving standards of decency that mark the progress of a maturing society.”

The number of death sentences in the United States collapsed over the last two decades, strongly suggesting that executions themselves defy evolving standards of decency that mark the progress of a maturing society. death sentencesIn total, only 25 people were executed in the United States in 2018, and only eight states performed any executions at all. One state, Texas, accounted for more than half (13) of these executions.

It is the opinion of this writer that the Supreme Court has just opened the door for us to regress to a time where the death penalty was carried out in ways that we, as a society, now view as ‘cruel and unusual’.  Of course, it is also the opinion of this writer that we should not be in the business of deciding to kill another human being.

43 thoughts on “Cruel and Unusual …

  1. Hello Jill. You are correct about the door opening for unusual and cruel methods of execution. It seems the SCOTUS is OK with drowning, brain crushing, and suffocation as execution methods. Because that is what will happen to this man if those vascular bundles burst. In his throat he will drown in his own blood. In his neck it could close off his airway and he will suffocate that way. If they burst in his head the added pressure will squeeze his brain causing horrible pain as it damages his brain. I wonder when hanging or drawn & quartered will make a come back? Dragged behind horses? Funny when ISIS put those men in cages and submerged them, our people ranted about how cruel and horrible they were. News channels and politicians used it to show how we were more civilized. Not any more. Hugs

    Liked by 2 people

    • For sure, Scottie … not anymore. But … perhaps we never were more civilized. Do you know that the anti-lynching bill was first introduced in Congress in 1918, but was not actually passed into law until just last year? Why in heck did it take a full century to decide that it wasn’t nice to put a rope around a man’s neck and watch him slowly suffocate to death??? Grrrrrrrrrrrrrrrrrrrrrrrrrr. Hugs.

      Liked by 1 person

  2. I will not give my propensity for loquacity this opportunity to go on at length about my personal feelings regarding the death penalty. Suffice it to say…I’m against it! I just read about this particular travesty in this morning’s The Hill’s Morning Report that included an article from Reuters. I was shuddering just imagining this man’s death and do not understand how any human being could impose this on any other human being for any reason whatsoever. Unnecessary and unusual punishment that should be unlawful! I will only add that Neil Rickert’s comment hits the nail on the head. Thank-you!

    Liked by 3 people

    • P.S. I just finished reading an article in The Atlantic Politics that was in yesterday’s Slate by Mark Joseph Stern titled “The Supreme Court Conservatives Just Legalized Torture”. If you can find it, you may find it interesting as well as frightening. Thank-you!

      Liked by 2 people

    • I agree … it is not one of our prouder achievements and I would like to see it abolished at the federal level, since the states are so slow in doing so. Only six states have abolished it, although a number of others have stopped since the issue with the drugs a decade or so ago. Yes, Neil is spot on. Sadly.

      Liked by 1 person

  3. Death means finality on this Earth, why not execute in the most humane way possible? I know the courts want to send out a message that crime doesn’t pay, but this decision is just plain vindictive and cruel. I cannot condone the death penalty if done so unconscionably.

    Liked by 3 people

    • I cannot condone it even if it were done in the most painless and efficient way. The fact is, years of study have proven that the death penalty does not deter crime, and one of these days we will execute an innocent person … it’s inevitable. Sigh.

      Liked by 1 person

  4. I’m not certain (I tried to do a bit of Google research), but I think death was a punishment for wrongdoing even in early humans. In those days, they “sacrificed” the guilty (via various methods) to “terrorize underclasses, punish disobedience and display authority.”

    According to this site, The physical act of sacrifice took a wide range of forms, including strangulation, bludgeoning, burning, burial, drowning, being crushed under a newly-built canoe, and even being rolled off a roof and then decapitated. As compared to what takes place today, I’d say the modern death penalty is actually more humane! This does not, however, justify it.

    Liked by 2 people

  5. IMO, if Gorsuch wanted to write a valid and justifiable majority opinion, he should have stopped after the words … The Eighth Amendment does not guarantee a prisoner a painless death. The rest of what he wrote was personal opinion, not legalese. But then, that’s what you get when presidents and the ruling party get to choose Supreme Court justices.

    Liked by 2 people

    • You’re quite right … it is revenge. I constantly shake my head over that — the Christians who go into mass hysteria at the thought of a woman having a tiny seed removed from her body … not a baby, a fetus … don’t bat an eye when it comes to executing a human being. Barbaric.

      Liked by 2 people

  6. Jill, like you I evolved my thinking on the death penalty, at one time believing it was just for very heinous murderers. That changed when it became apparent there were sufficient numbers of people on death row who were later proven to be innocent. Coupling that with the lack of deterrence and the inhumanity of the. punishment, it just fails to live up to the standard of justice needed. Victims have rights and I dare not begrudge any relative or friend the right to feel ill-will toward the murderer. Yet, I also confess to being moved by the compassion of the Charleston Church survivors and relatives toward the killer who I shall not name. Keith

    Liked by 3 people

    • I think it’s time we abolish it, and six states thus far have done so, but you know that states like Texas will never do so on their own, so I would like to see it done at the federal level. I am always in awe of those who can forgive in that way, for I’m not sure I could. I guess we never know until faced with the situation.

      Liked by 1 person

  7. You are absolutely right. I have always thought that capital punishment in and of itself is “cruel and unusual punishment.” It is raw, unfettered revenge, pure and simple. It does not deter crime but it saves the state many dollars, which seems to be the driving force behind the insistence of those states that still practice what is clearly a brutal form of punishment. In this case Gorsuch’s reasoning is not simply flawed, as you point out, it is the voice of unreason in a world turned upside down.

    Liked by 3 people

    • Hello Hugh. You are correct in that the death penalty is revenge not justice. However the death penalty is far more expensive than even life imprisonment. It starts out with death penalty cases being far more expensive to try, and the appeal process can cost more. The set up in prisons for holding death row inmates is more expensive than other sections of the prison to run. There are many other factors but as the death penalty doesn’t act as a deterrent and is not justice, there is no way to justify the extra expense. Hugs

      Liked by 1 person

    • Quite so … it is simple revenge, or a financial decision, that does nothing whatsoever to deter crime. It’s time to abolish it at the federal level, but we both know that won’t happen right now … perhaps someday.

      Liked by 1 person

    • Bingo! You got it. But you know what amazes me? The same people who are throwing kiniptic fits because a woman has an abortion, aborts a fetus, are fine with executing a human being! Double standard? Mixed-up values? Sigh. You’re right … Welcome to America, or rather the Divided States of America.

      Liked by 2 people

  8. No “civilized” society has a need to have a death penalty. Far too many innocent people are given the death penalty, but that cannot be 100% of the reason. The eye for an eye, tooth for a tooth, life for a life comes from a different place and time. I am not saying all people will change, however all people can change–but not if they are dead! Death is an absolute finality in our known reality. It allows for no chance of redemption, or forgiveness. It is sheer socially-acceptable revenge. It is the extreme punishment.
    It is inhumane!

    Liked by 3 people

    • I agree … aside from the risk of executing an innocent person, it IS inhumane! The death penalty has been abolished in only six states, but in many others it has not been used in 5-10 years. I would like to see it abolished at the federal level, but … won’t happen any time soon, I fear.

      Liked by 1 person

  9. Each time I read about how our society’s values are changing in accepting many “cruel and unusual” behaviors (ie caging and abusing asylum seekers), I ask myself: “how did we get here?”. We have so many law makers who support “family values”, “Christian values”; how does it add up? It doesn’t. 😐

    Liked by 2 people

  10. Regression is the new norm in a growing number of facets of American life, law, and behavior. Like it’s lifted straight out of “1984”, we must move backward to move forward seems to be the imbecilic growing theme. When everyone’s eyes open again, they’ll lament, “How were we to know? They fooled us all.”

    This cycle of history reminds me of the Know Nothing party. Remember all that they were against, all that they feared — immigration, wasn’t it? — and their need to work in secrecy, and the violence that finally emerged?

    Ah, rambling again. Sorry.

    Liked by 3 people

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