Cruel and Unusual: Neil Gorsuch Guts Critical Eighth Amendment Provisions
Truman Capote’s seminal 1966 novel and thinly veiled critique of capital punishment In Cold Blood depicts in gruesome detail the processes and methods of execution in rural Kansas. At the book’s end, Dick Hickock, one of the murderers and death row inmates followed by Capote, notes, "Old Andy, he danced a long time. They must have had a real mess to clean up. Every few minutes the doctor [would check for a heartbeat, then step outside]. I wouldn't say he was enjoying the work - kept gasping, like he was gasping for breath, and he was crying, too. . . . I guess the reason he stepped outside was so the others wouldn't see he was crying. Then he'd go back and listen to hear if Andy's heart had stopped. Seemed like it never would. The fact is, his heart kept beating for nineteen minutes." Since the time of Capote’s writing, much in America has changed, but capital punishment continues to be just as morally wrong and just as cruel. Yet for some on the bench of the highest court in the land, this is not only acceptable, but to be encouraged.
The setting now is a state penitentiary just to the east of Capote, in Missouri. The year is 2019. Russell Bucklew is a convicted murderer, but more fundamentally, he happens to be an American citizen entitled to the rights and protections of the U.S. Constitution. Even more fundamentally, he is a human being, subject to a basic standard of humanity in his treatment.
Someday soon, Mr. Bucklew will wake up knowing he will never see the sun rise again, or eat another meal. But unlike almost every other American, he will be executed by the very state he calls home, with his execution paid for by his own tax dollars. Even among the demographic of death row inmates, he is unique: for he suffers from a rare medical condition called cavernous hemangioma. According to the Mayo Clinic, the condition covers his body in tumors filled with blood vessels which complicates his breathing as the tumors squirt blood. On his execution day, Bucklew will be given a lethal injection of pentobarbitol (commonly used to euthanize animals), which will suppress the brain cells that control the desire to breathe as well as the ones that tell his heart to pump. According to medical experts, once injected, Becklew’s tumors will rupture and his mouth will be filled with blood, causing him to suffocate to death in unimaginable, agonizing pain for several minutes as he chokes on the gurney and his own blood. That is undeniably, by any definition, torture.
Bucklew filed a petition to block his execution, arguing that it violated his Eighth Amendment right to freedom from “cruel and unusual punishment.” Additionally, in accordance with existing precedents (2008’s Baze v. Rees and 2015’s Glossip v. Gross), he chose hypoxia (or deprivation of oxygen) as an alternative method. By a party-line 5-4 vote, the Supreme Court rejected his claim. However, the tragedy of this case is not only that Russell Bucklew will be executed in a horrifying manner, but that Justice Neil Gorsuch’s opinion of the Court overrules, or at least weakens, more than a half century of precedent and normalizes dangerous fringe interpretations of the Eighth Amendment by codifying them into the law of the land.
Gorsuch’s opinion takes aim at two crucial and fundamental ideas underlying existing interpretations of the Eighth Amendment. The first of these is the Baze/Glossip test. These two opinions are notably heavy on bold claims that capital punishment must be permitted under the Constitution, but light on any sort of legal theory justifying it. Nonetheless, Justice Samuel Alito’s opinion remained a precedent, dictating that, “because it is settled that capital punishment is constitutional, ‘[i]t necessarily follows that there must be a [constitutional] means of carrying it out.’ And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain.” Essentially, this says that courts must ensure that states cannot use a risky method of execution when a less painful option is available.
At the time, Clarence Thomas and Antonin Scalia believed this conclusion did not go far enough, instead arguing that the Eighth Amendment as originally understood prohibited states from intentionally making executions more painful than they had to be, or “superadd[ing] pain,” as Thomas put it in Baze. Under this theory, challenges to almost any method of execution under the sun would lose in court unless an inmate were to find (seemingly impossible to find) evidence that the state conspired to intentionally increase the pain of his or her death. The state could torture a death row inmate to death and it would be justified under the law unless an intent could be presented by the defendant. The fact that three out of the five conservative members of the Supreme Court at the time (a time in which the Supreme Court was as partisan as it has ever been) rejected this idea and kept it from the majority opinion speaks to its eccentricity in the Eighth Amendment dialogue.
A justice system built on barbarism without accountability, impunity without oversight is just as bad as one with malice at its heart
Yet Gorsuch, once billed by some as surprisingly sympathetic to criminal defendants, essentially rewrote Eighth Amendment doctrine to replace the Baze/Glossip test with Thomas’s fringe view. Gorsuch wrote that the standard for a defendant to propose an alternative method of execution was when “the State’s chosen method of execution cruelly superadds pain to the death sentence.” This draconian, radical line of thinking creates an unnecessary burden and an insurmountable barrier on the defendant, who has to jump through loops just to ensure he can die in a more humane way than by choking on his own blood. So much for the Constitution’s assertions of due process and expedient criminal procedures! This line of thinking creates a death penalty that is unchecked and unbeholden to any set of guidelines or any oversight mechanism in almost all cases, which will inevitably be one that executes the wrong people in inefficient and downright racist ways. A justice system built on barbarism without accountability, impunity without oversight is just as bad as one with malice at its heart, and by enshrining the freedom of a state to torture its people to death into law, Neil Gorsuch, Clarence Thomas, and their conservative colleagues have revealed the true colors of their movement: any interpretation, even the legalization of torture, will do as long as it keeps the execution chambers running.
Yet somehow, the dissolution of the second foundational component of the Eighth Amendment may be even more troubling. Since 1958, the Court has operated under the understanding that, as Chief Justice Earl Warren wrote, the Eighth Amendment prohibits punishments that are inconsistent with “evolving standards of decency that mark the progress of a maturing society.” In essence, this means that the law surrounding capital punishment should reflect the times, rather than monolithic and outdated norms and codes.
However, Gorsuch’s opinion rejects even this commonly accepted idea, instead limiting the “cruel and unusual” clause of the Eighth Amendment to pertain merely to what was “cruel and unusual” at the time of the country’s founding. He neglects to so much as even mention evolving standards or anything that transpired in the past 200 years, and crucially redefines “unusual” as punishments that had “long fallen out of use” at the time of the Framers rather than punishments that are uncommon today. This is no accident, as not only specific types of executions, but rather capital punishment in general is uncommon by any definition in the United States. Last year, only eight states carried out executions, and only 25 Americans were killed by the state. That is a sharp decrease from almost 300 executions in 1998, clear evidence that executions have fallen out of favor. Furthermore, fewer Americans than ever approve of the death penalty and feel it is applied fairly. Rather than accept this seismic shift in public consciousness as an implication for the future of capital punishment, Gorsuch changed the rules.
These new rules have massive implications. For starters, it would enshrine the death penalty as a whole into American practice for perpetuity, as the Framers condoned it, regardless of other generations’ opposition. The existing literature on the death penalty notes sentencing biases against people of color and those whose trials take place in the South, compiles the names of hundreds of people who have been wrongfully executed, and rebukes the notion that it is a deterrent. Put simply, the only case for the death penalty is retribution and our age-old conception of vengeance as justice. But it need not be that way, for the wisdom of scripture that may have been interpreted to condone it also condoned slavery and executions of homosexuals. It may have been the prevailing wisdom of the time, but that does not mean it cannot be plain wrong by modern standards. Society may engage in self-preservation and punishment, but it has no inherent right to be vengeful or to kill.
A second consequence of these new rules is the delegitimization of previous Supreme Court decisions that rely on the notion of “evolving standards of decency.” Among these are Atkins v. Virginia (2002), which forbade the execution of the intellectually disabled, Roper v. Simmons (2005), which made the U.S. one of the last countries in the world to prohibit the execution of juveniles, and Kennedy v. Louisiana (2008), which held that the death penalty was unconstitutional for non-homicidal crimes. All of these holdings are now in jeopardy. Overturning them would put the United States back in the same company as some of the most repressive governments on the face of the planet. Doing so would deface justice in the name of retribution and roll back progress in the name of pain and cruelty. The Court’s decision in Bucklew would inflict cruel and unusual punishment and suffering on the most vulnerable members of our society needlessly and with surgical precision.
Capital punishment in America may look different today than it did in Truman Capote’s time, but it may not for long. It is long past time to turn back the tide towards justice and away from a system that is racist to its core, is increasingly cruel and brutal, and will now be able to operate ruthlessly, subordinate to no man or no institution. This decision raises questions for Americans about the fundamental nature of crime and punishment.
It asks whether, in this particular day and age, even if there is a constitutional necessity for capital punishment, the various actors in the criminal justice system can be entrusted to administer it as fairly as possible. It asks whether the criminal justice system can be trusted to protect the rights of inmates to be free from torture, and responds that it cannot be. It asks whether a fundamentally racist and unjust system can ever act in a way that is fair and humane. As long as there is support for the death penalty, that support is vested in people like Brett Kavanaugh, Clarence Thomas, and Neil Gorsuch to ensure that it is carried out fairly and justly. Which, of course, ensures just the opposite. The courts will never be able to impose decency and justice on an unjust and indecent institution. As Justice Stephen Breyer put it, “The arbitrary imposition of punishment is the antithesis of the rule of law.” After all, if the Constitution does not protect Russell Bucklew from choking to death on his own blood, it is dead wrong for America.