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 …
“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. In 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.