5 Takeaways from the Supreme Court’s Death Penalty Decision

The Supreme Court’s most recent death penalty decision provides a revealing glimpse into the convoluted web of medicine, history, law and cultural norms surrounding how the government puts people to death.

It also showcases the attitudes that will guide the newly constructed Supreme Court into the foreseeable future.

In Bucklew v. Precythe, the Supreme Court rejected a challenge by a convicted murderer to the State of Missouri’s planned method for his execution.  The condemned prisoner, Russell Bucklew, argued that because he suffered from a rare medical condition, execution by lethal injection would cause him excruciating, extended pain in contravention of the 8^th Amendment’s prohibition against “cruel and unusual punishments.” 

In a 5-4 decision that broke down precisely along the Court’s ideological lines, recent Trump appointee Justice Neil Gorsuch wrote the majority opinion rejecting Bucklew’s argument.

Here are 5 takeaways from the decision in the Bucklew case.

• There is virtually no chance that at any time in the foreseeable future the Supreme Court will find that the death penalty, in and of itself, is unconstitutional

The constitutionality of the death penalty is not only settled law under Supreme Court precedent, it is so settled and so widely accepted that not a single one of the Supreme Court justices even raised the question in this case.  Justice Gorsuch’s plain statement that “The Constitution allows capital punishment” didn’t elicit even a peep from the dissenting justices.

Under these circumstances, opponents of capital punishment will have to concentrate their efforts on the constitutions of individual states, legislative changes, and case-by-case challenges to the underlying convictions and the method of execution.  Full frontal challenges to the legality of capital punishment under the United States Constitution may help shape the legal debate over time, but they will not succeed in the foreseeable future.

Nevertheless, although today’s legal consensus is that the Constitution doesn’t require the federal government or the states to prohibit capital punishment, it also doesn’t prevent them from doing so.  Thus, abolition of capital punishment, if it is going to happen, is more likely to result from electing legislatures who are against it than from legal challenges in court.

That still leaves room for court challenges, such as in the Bucklew case, to the method of execution under the 8^th Amendment’s prohibition of cruel and unusual punishment.  Although Bucklew’s appeal failed, the path is not closed.

• Under the Bucklew decision, a condemned prisoner will have to order up, in ghoulish detail, exactly how he/she wants to be killed in order to challenge the state’s proposed method of execution

Justice Gorsuch’s decision in Bucklew relied heavily on the Court’s 2008 decision in Baze v. Rees.  The decision in Baze held that when a prisoner challenges a state’s method of execution under the 8^th Amendment, the burden is on the prisoner to 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.

In other words, it was up to Bucklew to tell the State of Missouri how to kill him.

And just naming a method isn’t nearly enough for Gorsuch and the rest of the majority.  Bucklew did, after all, propose an alternative method of execution, death by gas, specifically nitrogen hypoxia.

But that wasn’t enough. 

The Court found that Bucklew’s proposal wasn’t “sufficiently detailed” because it didn’t address “essential questions” like exactly how the gas should be administered (“using a gas chamber, a tent, a hood, a mask or some other delivery device”), how “quickly or for how long” the gas should be introduced, how the State might take measures to prevent “the risk of gas leaks,” and so on.

It’s a wonder that Gorsuch didn’t demand that Bucklew identify his preferred executioner.

• The issue of whether Bucklew provided a feasible alternative method of execution was wrongly decided, totally apart from any constitutional issues

Bucklew decided an appeal from a lower court decision that granted the State of Missouri “summary judgment” against Bucklew’s claim that execution by lethal injection would be cruel and unusual in his specific case, due to his rare medical condition.

When a court grants summary judgment, it not only declares a winner, but it does so without the benefit of giving the loser a trial.  Because of the extreme consequence of depriving a party the opportunity to prove its case at trial, summary judgments are relatively rare, and the standard for granting summary judgment is strict.

It is accepted law in virtually every jurisdiction in the United States that summary judgment should only be granted if the evidence presented to the court shows conclusively that “there is no dispute as to any material fact.”  Both Gorsuch’s majority opinion and Justice Breyer’s dissent, which was joined by Justices Ginsburg, Sotomayor and Kagan, recognize that standard.

One key factual issue presented in the case was whether the alternative method of execution proposed by Bucklew “would significantly reduce a substantial risk of severe pain.”

There was no dispute about the materiality of this issue.  Indeed, Gorsuch characterized that matter as “critical” under previous Supreme Court precedent.

Since materiality wasn’t at issue, the only way the lower court’s granting of summary judgment could be affirmed would be to show that the record established that there was “no dispute” as to whether execution by nitrous hypoxia would substantially reduce Bucklew’s risk of severe pain.

The problem with this is that there was such evidence in the record.  As noted by Justice Breyer in his dissent, Bucklew “easily established” a genuine issue of material fact regarding both that a lethal injection would subject him to “impermissible suffering,” and that nitrous hypoxia would substantially reduce his pain.

Indeed, the record established that Bucklew had submitted sworn declarations and extensive testimony from an expert witness anesthesiologist establishing that a lethal injection would subject him to severe, prolonged and excruciating pain due to his rare medical condition (which wasn’t in dispute).  It also included studies showing that execution by nitrogen hypoxia would be both simple to administer and virtually painless.

In other words, the key facts in the case were clearly material, and genuinely in dispute.  

Summary judgment should not have been granted.  The Supreme Court should have reversed the judgment and sent the case back to the lower court to be decided by a trial on the merits, based on a full record.

Instead, the majority of the Court usurped the prerogative of the trial court, weighed the evidence on its own, and reached a fundamentally political, not legal, decision.

• Justice Gorsuch did not approach the case with judicial objectivity.  Instead, his opinion reeks of annoyance by the mere fact that Bucklew’s case was even before him

So much for judicial temperament.

Justice Gorsuch starts his opinion with a description of not only the murder for which Bucklew was condemned, but also a gruesome, detailed description of all the events surrounding the murder, including what Gorsuch breezily refers to as a “coda,” Bucklew’s attempted escape from jail.

We get it.  Bucklew is a bad guy who deserves whatever lawful punishment he gets.  But Gorsuch’s loving description of his badness is at best overdone, and at worst gratuitous given that Bucklew “concedes that the State of Missouri lawfully convicted him of murder and a variety of other crimes.”  In other words, Bucklew’s guilt was not in question.  Nor was his sentence of capital punishment.

But even allowing Gorsuch the satisfaction of showing, right out of the gate, that he wasn’t dealing with an innocent choirboy, the irritation he shows with the entire proceeding screams of bias and lack of judicial objectivity.

His description of the legal record leading to the appeal is filled with petty annoyances.

He starts out by observing that “After a decade of litigation, Mr. Bucklew was seemingly out of legal options.”  He laments that the case “soon became caught up in a wave of litigation over lethal injection procedures.”  He cites legal developments during the pendency of Bucklew’s case, complaining that “that still was not the end of it.”  He laments “pressure from anti-death-penalty advocates.”  He minimizes the appeal before the Court as “yet another lawsuit.”

This is not the kind of language that promotes confidence in our judicial system.

• Justice Thomas’ concurring opinion sets out a preposterous interpretation of the 8^th Amendment’s prohibition of cruel and unusual punishment

Not content with the sweep of Justice Gorsuch’s majority opinion, Justice Thomas would go a huge step further.  His view is that a method of execution violates the 8^th Amendment “only if it is deliberately designed to inflict pain.”

In effect, Thomas would simply alter the language of the 8^th Amendment, without bothering with a constitutional amendment. 

Instead of the plain and simple wording that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted,” Thomas would have the Amendment read “nor cruel and unusual punishment deliberately inflicted.”  

That would mean that every challenge to a method of execution would require an x-ray into the subjective intentions of the executioner.  Even if the clear, unambiguous consequences of a method of execution caused prolonged, excruciating pain, it would be just fine with Thomas so long as there was nothing in the record that established that the method was “deliberately designed” to inflict pain, as opposed to some other justification.

For instance, a state that was strapped for funds and happened to have an unused cistern on the prison grounds might decide that death by drowning was the fastest, most efficient and most cost-effective method for conducting executions.  They might know that this method would subject the condemned prisoner to terror and prolonged pain, and they might even feel bad about it.  But as long as the method wasn’t “deliberately designed” for the specific purpose of inflicting pain, no problem.

Sure, that’s an unrealistically absurd worst-case hypothetical.  But there’s nothing far-fetched about the potential evil of rewriting the Constitution by judicial fiat in such a way that defines “cruel and unusual” as being a function of the subjective intention of the executioner, rather than a function of the degree of pain and terror inflicted on the person being executed.

Collectively, none of this bodes well for the hope that the newly constructed Supreme Court will rise above political ideology and interpret the law as a neutral umpire.