Justice Gorsuch misinterprets the Eighth Amendment
On Monday, the Supreme Court ruled 5–4 in Bucklew v. Precythe to allow the state of Missouri to execute a man whose rare medical condition will cause him excruciating pain when given a lethal injection. Justice Neil Gorsuch delivered the opinion of the court, asserting that the defendant, Russell Bucklew, had taken too long to object to the method of execution. He argues that the Eighth Amendment’s clause barring cruel and unusual punishment does not guarantee a painless death, and that for a punishment to be cruel it must be intended to inflict pain and so be “more than the mere extinguishing of a life.” He also says that “courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay.” Finally, he says that it is the defendant’s responsibility to find a proven alternative method which would substantially reduce the risk of pain as the court held in a previous case, Glossip v. Gross. Despite the precedent set by apparently similar decisions in Glossip and also in Baze v. Rees, Gorsuch’s arguments are not constitutionally sound and this execution violates the Eighth Amendment.
I have three main objections to Gorsuch’s opinion. First, requiring the condemned to come up with an alternative is egregious. Second, the procedural due process standards invoked in this case have no constitutional basis. Last but not least, what will happen to the defendant is both cruel and unusual.
Full disclosure: I am a staunch opponent of the death penalty. However, I understand the psychological appeal of such absolute justice — a few years ago I staunchly supported capital punishment. But whether you are for or against the death penalty, this execution is an exception to any reasonable application of the law. If the condemned is to be executed, the court should have allowed the alternative method he proposed, nitrogen hypoxia, which he believes (probably correctly) will lead to a painless death. It is not the method per se that is necessarily cruel and unusual, but what will happen to this particular condemned person (for whom I do not shed a tear) as a result of this method being used. If injected, Bucklew’s medical condition would cause the tumors that cover his body, including his throat, to rupture and he would suffocate on his own blood. If those allowing and conducting the execution know that this will happen, then they are willfully inflicting pain, which is the very standard Gorsuch’s opinion cites. Knowingly causing someone to die in that manner is definitely cruel. And since Bucklew would not die in the manner and with the speed that those injected usually do, this is definitely “more than the mere extinguishing of a life.” It is not common to knowingly cause someone to die this way, nor indeed for someone to actually die in such a way, and as such this punishment is definitely unusual. Now, the definition of cruelty used here also contemplates intentionally inflicting excruciating pain with the method Gorsuch argues, citing Justice Clarence Thomas’ view in Baze v. Rees, that the Eighth Amendment “prohibits only those methods of execution that are deliberately designed to inflict pain.” Well, in this case, those conducting the execution, and the Court itself, know that it will happen and are doing it anyway. This method of execution is deliberate and will inflict unusual and unnecessary pain. Not using an alternative method means that the executioners are doing it deliberately.
As to the argument that the Eighth Amendment does not guarantee a painless death, it also does not allow for or permit knowingly inflicting an obviously painful one. I emphasize the word knowingly because this is the standard Gorsuch sets for permissibly inflicting pain. Citing historian Stuart Banner, Gorsuch refers to the methods of execution in the context of the time of the ratification of the Bill of Rights in 1791, and adduces hanging, which could indeed cause a slow and painful death:
While hanging could and often did result in significant pain, its use was virtually never questioned. But that was because, in contrast to punishments like burning and disemboweling, hanging wasn’t “intended to be painful” and the risk of pain involved was considered “unfortunate but inevitable.”
But in hanging, a painful death is not certain. In this case, however, it is clear that death will be excruciating. And Gorsuch admits that new methods have been adopted over time just because previous ones were considered cruel and unusual. We now agree that the Eighth Amendment outlaws things like drawing and quartering, and even chopping people’s hands off for stealing, when the Founders believed such actions were not cruel (which is why the Constitution refers to legitimate legal “jeopardy of life or limb” in the Fifth Amendment). Gorsuch accepts that the Eighth Amendment prohibits “barbarous and cruel punishments.” The methods of execution outlawed under this definition are definitely barbarous, even if accepted in 1791, and so is this one. There is no scenario in which knowingly causing someone to choke on their own blood, thereby torturing them to death, is not barbaric. Even under Justice Gorsuch’s own standards, this execution violates the Eighth Amendment. Indeed, he cites legal precedents as barring “pain superadded … to death.” The fact that the defendant not only dies as a result of their injection but chokes on his own blood means that pain is “superadded.” Gorsuch knows all of this to be the case because of the criteria he cites and the precedents that he agrees have been set. He knows what barbarity is; nonetheless, he seems to be willfully misinterpreting the Eighth Amendment by pretending that the standards do not apply here. He may believe that this defendant deserves to die cruelly because of the cruelty of what he did, and so he may want to disregard how painful the death will be. But under the Eighth Amendment, and under any decent moral code, this execution is wrong in every way.
Justice Gorsuch’s other bases for the execution are rooted in procedure. He says that the defendant waited too long and until too close to the execution to object to the method. Even if, legally, the condemned raised the appeal too late, the state does not get to violate the Eighth Amendment on that basis; procedure does not take priority over constitutional standards. The majority has no constitutional justification for that argument. Also, he says that the defendant must find a viable alternative method that will reduce the risk of pain, citing Baze v. Rees as precedent. This precedent is particularly egregious. It suggests that those responsible for putting someone to death do not have a responsibility not to violate the Constitution, but that such a thing is the defendant’s responsibility alone.
Gorsuch’s main argument is that this execution does not violate the Eighth Amendment because lethal injection is a normal method of execution and because the punishments clause does not guarantee painless death. Even if you agree with Gorsuch about that, this case is an exception to the rule. He is pretending that what will happen is neither cruel nor unusual, when in fact the way the execution will be carried out will match even his own definitions. He wants to see this person executed, regardless of what will happen, and is therefore interpreting the Eighth Amendment contrary to what he must know it means in a way that allows for that. This execution is unconstitutional, but Justice Gorsuch doesn’t care.