On the first day of April, the Supreme Court of the United States ruled that the execution of a Missouri death row inmate would not be unconstitutional under the Eighth Amendment’s bar on cruel and unusual punishment, despite a rare medical condition that could cause him severe pain. Two weeks earlier, the governor of California had announced the imposition of an executive moratorium on the state’s death penalty.
Both developments are significant because of their potential ramifications on the future of the American system of capital punishment. I believe the death penalty is both cruel and unusual, not in the constitutional sense but in the moral one. It is cruel because it is applied unjustly against people based on their race and class, because it kills innocent people and because it irreversibly strips criminals of all rights — and deliberate killing cannot be justified by the crimes it seeks to punish. It is unusual because, of all liberal democratic nations, only the United States retains it. For those who share my stance, the recent developments reveal a simple truth: progress in the effort towards abolition will come from the electoral process, not the courts.
The case I am referring to is Bucklew v. Precythe. The five-to-four decision was arguably wrong on constitutional grounds and it was certainly detrimental to the abolitionist cause. A heinous criminal, Russell Bucklew was convicted of murder, kidnapping and rape. After being sentenced to death, Bucklew filed an action claiming Missouri’s lethal injection regime, as applied to him, would be cruel and unusual in violation of the Eighth Amendment. Suffering from a rare disease that causes blood-filled tumors to cover his entire body, Bucklew argued that the injection would likely rupture them and cause a slow and agonizing death, potentially choking him in his own blood. The majority ruled against him, arguing that “the Eighth Amendment … does not guarantee a prisoner a painless death.” Writing for the majority, Justice Neil Gorsuch shifted away from decades of precedent, according to which the Eighth Amendment must draw its meaning from “the evolving standards of decency of a maturing society.” Even though Gorsuch claims that he does not rely on Justice Clarence Thomas’ and Justice Antonin Scalia’s view that the Eighth Amendment only bars punishments that are deliberately designed to “superadd terror, pain, or disgrace” — a view that would render the amendment utterly powerless, reducing its application to 18th- century torture and open sadism — he eventually internalizes their logic. He does so in two ways. First, by stating that an execution is cruel and unusual when it “superadd[s] pain well beyond what’s needed to effectuate a death sentence.” Second, by citing hanging as a constitutional punishment because, despite the immense pain it can potentially cause, it was not “intended to be painful,” unlike burning and disemboweling. By embracing a static interpretation of the Eighth Amendment, Gorsuch is guilty of what he accuses the dissent: a “headlong attack” on precedent. In the process, he gives a green light to barbarity, as long as it is not intentional.
Gorsuch only departs from Thomas’ view when he introduces a comparative interpretation of the amendment. He draws from the Baze v. Rees decision, made controlling in Glossip v. Gross, according to which a punishment is unconstitutional if there exists an alternative that would “substantially reduce a substantial risk of severe pain.” (Notice the absence of “superadded” or “intentional.”) Even then, though, the Court reaffirms in Bucklew that the burden is on the petitioner to identify “a feasible, readily implemented alternative.” This decision has a dubious basis in the Constitution and it leads to absurdity, with the majority accusing Bucklew, who suggested nitrogen asphyxiation as an alternative, of not specifying “how nitrogen gas should be administered; in what concentration; how quickly; or how the state might ensure the safety of the execution team.” In the words of journalist Liliana Segura, the Court is asking Bucklew to build his own gas chamber.
Even the periphery of the majority opinion is discouraging to abolitionism. Gorsuch categorically asserts the constitutionality of capital punishment, expresses distrust toward Eighth Amendment litigators and activists and laments the delays caused by constitutional challenges. Bucklew casts a shadow of doubt on the potential for Supreme Court litigation to make meaningful progress on the question of capital punishment.
On the contrary, Governor Gavin Newsom’s decision to grant reprieve to the 737 people on California’s death row, effectively imposing a moratorium on the death penalty, is encouraging. In justifying his decision, Newsom cited the punishment’s tendency to kill the innocent, its prohibitive cost and its uneven imposition on people of color, disabled people and the poor. But he also plainly stated that “[he] cannot sign off on executing hundreds and hundreds of human beings.” This brand of bold leadership on the issue is likely to create a nationwide ripple effect. Death penalty experts — and siblings — Carol and Jordan Steiker argue that the order could be “a harbinger of further decline” of the death penalty as such moratoria are often followed by abolition when the community and the nation realize they do not need to kill their worst criminals — particularly now that efforts to amend the death penalty have proved insufficient. Newsom’s decision elicited controversy, with the editors of National Review condemning it as a “brazen act of executive overreach.” Yet both the governor’s right to grant reprieves and his wide discretion in exercising it are explicitly laid out in the state’s constitution; the same constitution that lays out the electoral and judicial processes which they claim Newsom undermines. The argument ought to be substantive, not procedural. And Newsom made his position clear.
If we are to draw any lessons from the contrast between the two events, it is that abolitionists ought to focus their attention on the electoral process, as opposed to the judicial one. Not only is the tactic of diminishing public confidence in the death penalty and striving to elect anti-death-penalty representatives more likely to be successful, it is also certain to render potential strides more acceptable. Popular decisions reap the benefits of legitimacy and longevity in a way that top-down judicial decrees do not.
Now, one could argue that my conclusion is not consistent with the recent historical record. The Supreme Court has shown in the past that it can be a force for progress on the death penalty. After ruling that its application is unconstitutional in 1972 (Furman v. Georgia) and conditionally reinstating it four years later (Gregg v. Georgia), the Court has significantly curtailed the classes of people that can be subjected to it (Roper v. Simmons) and the crimes for which it can be imposed (Kennedy v. Louisiana). In fact, Justice Stephen Breyer openly writes about the likelihood that capital punishment is inherently unconstitutional (Glossip v. Gross). However, this assessment fails when taking into account the firmly established conservative majority on the Supreme Court following the departure of Justice Anthony Kennedy, who was the deciding vote in many of the cases mentioned above, and the confirmation of Justices Gorsuch and Brett Kavanaugh. The recent discouraging decisions and the ease with which the court has ignored the critical “evolving standards” precedent confirm that abolitionists will not be able to rely on the Court for at least a generation.
Moreover, one could argue that the majority of American states retain the death penalty and that the majority of American citizens support it. Yet twenty states have abolished the death penalty while four more have a gubernatorial moratorium on its imposition. New Hampshire is currently in the process of abolishing it following a vote in the legislature and 37 states have had no executions in five years. According to a Gallup poll from 2018, support for the punishment is at historic lows and most Americans believe it is applied unfairly. As Professor of Law, Jurisprudence and Social Thought Austin Sarat affirms, “You can now be against the death penalty by embracing … mainstream American values.” Higher awareness and public advocacy have gone a long way.
While the electoral path to abolition is an arduous one, it is increasingly clear that it is the path to take. Paraphrasing Justice Earl Warren’s words, it is up to a maturing American society to show that its standards of decency have evolved.