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| If execution by torture isn't 'cruel and unusual' punishment, what is? | If execution by torture isn't 'cruel and unusual' punishment, what is? |
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| You might think that the Eighth Amendment, which forbids “cruel and unusual” punishments, clearly prohibits death penalty regimes like those currently in effect in Oklahoma: unqualified and inexperienced personnel trying experimental drug regimes that have a substantial likelihood of inflicting serious pain before death. But, if you know anything about the Roberts Court, you won’t be surprised to discover that they disagree. In a 5-4 decision written by Justice Samuel Alito (appropriately, as he’s the current justice with the very worst record on civil liberties) the US supreme court gave the green light to Oklahoma’s method of death. | You might think that the Eighth Amendment, which forbids “cruel and unusual” punishments, clearly prohibits death penalty regimes like those currently in effect in Oklahoma: unqualified and inexperienced personnel trying experimental drug regimes that have a substantial likelihood of inflicting serious pain before death. But, if you know anything about the Roberts Court, you won’t be surprised to discover that they disagree. In a 5-4 decision written by Justice Samuel Alito (appropriately, as he’s the current justice with the very worst record on civil liberties) the US supreme court gave the green light to Oklahoma’s method of death. |
| Late last year, Oklahoma horrifically botched its execution of Clayton Lockett, effectively torturing him for 40 minutes before he died (and blocking him from view from observers midway through). Its system for lethal injection relies on a three-drug cocktail, the formula invented (entirely arbitrarily) by the Sooner State itself in 1977: two of the drugs stop the heart but, as Justice Sonia Sotomayor explained in her dissent to the majority ruling, “they do so in a torturous manner, causing burning, searing pain.” The first drug, then, is supposed to be a barbiturate that renders the condemned prisoner unable to feel pain (although, since the second drug is generally a paralytic, it’s not really possible to tell if it works). Oklahoma, however, has been unable to obtain any of its usual drugs for the first step of the process, and has thus resorted to an alternative that carries the substantial risk of producing death by torture. | Late last year, Oklahoma horrifically botched its execution of Clayton Lockett, effectively torturing him for 40 minutes before he died (and blocking him from view from observers midway through). Its system for lethal injection relies on a three-drug cocktail, the formula invented (entirely arbitrarily) by the Sooner State itself in 1977: two of the drugs stop the heart but, as Justice Sonia Sotomayor explained in her dissent to the majority ruling, “they do so in a torturous manner, causing burning, searing pain.” The first drug, then, is supposed to be a barbiturate that renders the condemned prisoner unable to feel pain (although, since the second drug is generally a paralytic, it’s not really possible to tell if it works). Oklahoma, however, has been unable to obtain any of its usual drugs for the first step of the process, and has thus resorted to an alternative that carries the substantial risk of producing death by torture. |
| Nonetheless, to a bare majority of the court, Oklahoma’s system is good enough for the Eighth Amendment, based on a series of scientifically weak defenses offered for the protocol by a single witness and the argument that the condemned prisoners themselves are required to offer the state a less risky method for their own executions. The state can, under Alito’s reasoning, torture people to death as long as it cannot procure the drugs needed for a safer, less torturous method. | Nonetheless, to a bare majority of the court, Oklahoma’s system is good enough for the Eighth Amendment, based on a series of scientifically weak defenses offered for the protocol by a single witness and the argument that the condemned prisoners themselves are required to offer the state a less risky method for their own executions. The state can, under Alito’s reasoning, torture people to death as long as it cannot procure the drugs needed for a safer, less torturous method. |
| Justice Sonia Sotomayor’s dissent methodically dismantles Alito’s logic – and her closely reasoned opinion makes a telling contrast to the witless yelling at clouds in Justice Antonin Scalia’s dissents last week. First, she demonstrated that the state’s defense of its new system in the lower courts was extremely weak and didn’t merit the extreme deference given to it by the Supreme Court. The witnesses called by the defense used actual scholarship to show that the risk of death-by-torture was substantial; the only expert witness called by the state, conversely, “cited no scholarly research in support of his opinion” and instead “appeared to rely primarily on two sources: the Web site www.drugs.com, and a ‘Material Safety Data Sheet’ produced by a midazolam manufacturer”. As Sotomayor carefully demonstrated, “the Court disregard[ed] an objectively intolerable risk of severe pain” and relied instead on the kind of research done by an undergraduate student who starts papers on the morning that they are due. | Justice Sonia Sotomayor’s dissent methodically dismantles Alito’s logic – and her closely reasoned opinion makes a telling contrast to the witless yelling at clouds in Justice Antonin Scalia’s dissents last week. First, she demonstrated that the state’s defense of its new system in the lower courts was extremely weak and didn’t merit the extreme deference given to it by the Supreme Court. The witnesses called by the defense used actual scholarship to show that the risk of death-by-torture was substantial; the only expert witness called by the state, conversely, “cited no scholarly research in support of his opinion” and instead “appeared to rely primarily on two sources: the Web site www.drugs.com, and a ‘Material Safety Data Sheet’ produced by a midazolam manufacturer”. As Sotomayor carefully demonstrated, “the Court disregard[ed] an objectively intolerable risk of severe pain” and relied instead on the kind of research done by an undergraduate student who starts papers on the morning that they are due. |
| Even worse is Alito’s conclusion that death by torture does not violate the Eighth Amendment unless defendants can identify a safer method, which Sotomayor correctly describes as “indefensible”. Even assuming for the sake of argument that the US constitution permits the death penalty in the abstract, it does not guarantee that states will be able to perform executions in every circumstance. If medical personnel and drug companies – making free choices – decline to participate in the machinery of death, this does not mean that the Eighth Amendment ceases to apply. As Sotomayor explained: | |
| But a method of execution that is “barbarous,” or “involve[s] torture or a lingering death,” does not become less so just because it is the only method currently available to a State. If all available means of conducting an execution constitute cruel and unusual punishment, then conducting the execution will constitute cruel and usual punishment. Nothing compels a State to perform an execution. It does not get a constitutional free pass simply because it desires to deliver the ultimate penalty; its ends do not justify any and all means. | But a method of execution that is “barbarous,” or “involve[s] torture or a lingering death,” does not become less so just because it is the only method currently available to a State. If all available means of conducting an execution constitute cruel and unusual punishment, then conducting the execution will constitute cruel and usual punishment. Nothing compels a State to perform an execution. It does not get a constitutional free pass simply because it desires to deliver the ultimate penalty; its ends do not justify any and all means. |
| Her argument is unanswerable. Boiling people in oil or killing the on the rack would not suddenly stop being cruel and unusual punishment if they were the only methods available. It is true that the condemned prisoners in the cases considered by the court committed genuinely heinous crimes – one broke an infant’s back with his bare hands; another raped an killed an 11-month-old girl, as Alito was sure to mention in his opinion. Fortunately, even if Oklahoma could not execute these prisoners a remedy exists that is good enough for most American states and every other liberal democracy in the world: imprisonment. | Her argument is unanswerable. Boiling people in oil or killing the on the rack would not suddenly stop being cruel and unusual punishment if they were the only methods available. It is true that the condemned prisoners in the cases considered by the court committed genuinely heinous crimes – one broke an infant’s back with his bare hands; another raped an killed an 11-month-old girl, as Alito was sure to mention in his opinion. Fortunately, even if Oklahoma could not execute these prisoners a remedy exists that is good enough for most American states and every other liberal democracy in the world: imprisonment. |
| The other dissenting opinion, written by Justice Stephen Breyer and joined by Justice Ruth Bader Ginsburg, took a broader view and concluded that “it is highly likely that the death penalty violates the Eighth Amendment.” With the exception of an opinion filed by Justices Harry Blackmun and John Paul Stevens written just before their respective retirements, Breyer and Ginsburg are the first continuing justices to suggest that the death penalty is categorically unconstitutional since Justices William Brennan and Thurgood Marshall retired during the first Bush administration. | The other dissenting opinion, written by Justice Stephen Breyer and joined by Justice Ruth Bader Ginsburg, took a broader view and concluded that “it is highly likely that the death penalty violates the Eighth Amendment.” With the exception of an opinion filed by Justices Harry Blackmun and John Paul Stevens written just before their respective retirements, Breyer and Ginsburg are the first continuing justices to suggest that the death penalty is categorically unconstitutional since Justices William Brennan and Thurgood Marshall retired during the first Bush administration. |
| Breyer wrote that the death penalty likely violates the Eighth Amendment, because it is unreliable and the execution of innocent people cannot (unlike the imprisonment of the innocent) be remedied; he cited, among others, Carlos DeLuna and Cameron Todd Willingham, two almost certainly innocent people recently executed by Texas’s trainwreck of a criminal justice system. Breyer also noted that the system is arbitrary: as Justice Potter Stewart said in 1972, it is “cruel and unusual in the same way that being struck by lightning is cruel and unusual” because a small number of people (who are disproportionately poor and disproportionately people of color) are singled out for execution, often for crimes no worse than those who are spared even by the same state. The inefficiency of the system causes the condemned the anguish of extended stays on death row, Breyer noted, and it’s increasingly unusual because it is increasingly rarely used in the United States. | Breyer wrote that the death penalty likely violates the Eighth Amendment, because it is unreliable and the execution of innocent people cannot (unlike the imprisonment of the innocent) be remedied; he cited, among others, Carlos DeLuna and Cameron Todd Willingham, two almost certainly innocent people recently executed by Texas’s trainwreck of a criminal justice system. Breyer also noted that the system is arbitrary: as Justice Potter Stewart said in 1972, it is “cruel and unusual in the same way that being struck by lightning is cruel and unusual” because a small number of people (who are disproportionately poor and disproportionately people of color) are singled out for execution, often for crimes no worse than those who are spared even by the same state. The inefficiency of the system causes the condemned the anguish of extended stays on death row, Breyer noted, and it’s increasingly unusual because it is increasingly rarely used in the United States. |
| Not surprisingly, Justice Breyer’s dissent inspired a rancorous concurrence from Scalia, who took the highly unusual step of reading his opinion from the bench. (It is rare for justices to read concurring opinions, as opposed to opinions of the court or dissents.) In one of the stale zingers that have increasingly consumed Scalia’s writing, he asserts that “Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.” This is particularly unfortunate phrase for someone who has asserted that the Constitution does not forbid executing innocent people – which some might say was a key feature of the Enlightenment. | Not surprisingly, Justice Breyer’s dissent inspired a rancorous concurrence from Scalia, who took the highly unusual step of reading his opinion from the bench. (It is rare for justices to read concurring opinions, as opposed to opinions of the court or dissents.) In one of the stale zingers that have increasingly consumed Scalia’s writing, he asserts that “Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.” This is particularly unfortunate phrase for someone who has asserted that the Constitution does not forbid executing innocent people – which some might say was a key feature of the Enlightenment. |
| In the short term, neither Breyer’s nor Sotomayor’s opinions will not change the law: a court that essentially winks at torturous killings by the state certainly isn’t about to rule the death penalty per se unconstitutional. But it may turn out to be a very important sign of things to come: the most centrist Democratic nominee on the court has now reached the conclusion that the death penalty is unconstitutional, which may shift how other moderate liberal justices view the Eighth Amendment. This court will not rule the death penalty unconstitutional – but the next court with a Democratic nominee as the median vote might. | In the short term, neither Breyer’s nor Sotomayor’s opinions will not change the law: a court that essentially winks at torturous killings by the state certainly isn’t about to rule the death penalty per se unconstitutional. But it may turn out to be a very important sign of things to come: the most centrist Democratic nominee on the court has now reached the conclusion that the death penalty is unconstitutional, which may shift how other moderate liberal justices view the Eighth Amendment. This court will not rule the death penalty unconstitutional – but the next court with a Democratic nominee as the median vote might. |