Torturing the Eighth Amendment

More on yesterday’s latest “gotta torture somethin'” missive from the Roberts Court 5:

Gorsuch’s opinion also extends a very weak argument made by Justice Alito in Glossip v. Gross in 2015. Because of Glossip, even if a petitioner could show that a method of execution would inflict excruciating pain, the execution was constitutional unless the condemned prisoner could identify a less painful method available to the state. Gorsuch applied that standard to this case, arguing that Bucklew was required to demonstrate “a feasible and readily implemented alternative method of execution the state refused to adopt without a legitimate reason.”

Because of the availability of drugs commonly used in lethal objection has become heavily restricted by the manufacturers (a function of, you know, capitalism), this effectively sets up a Catch-22 for defendants: Legal representatives must imagine alternative forms of putting their clients to death and show that they are feasible and available but the state refused to adopt them. In other words, it puts the onus on criminal defense lawyers, many of whom are dedicated to limiting the application of the death penalty, to find alternative methods of execution for the state to adopt against their clients.

As Justice Sonia Sotomayor previously argued in her Glossip dissent, this argument makes very little sense. The fact that people’s moral revulsion to the death penalty makes certain forms of execution impossible for the state to carry out doesn’t render an otherwise unconstitutional execution constitutional. “A method of execution that is “barbarous,” or “involve[s] torture or a lingering death,” does not become less barbarous or torturous s just because it is the only method currently available .

Even assuming, for the sake of argument, that the Constitution does not categorically forbid capital punishment as cruel and unusual punishment, it doesn’t follow from this that the state must be able to carry out clearly torturous executions because it does not have a readily available alternative to its preferred cruel method.

Nor should it be the job of condemned prisoners to identify alternative methods of execution. As Breyer puts it in his dissent, “Even in the unlikely event that the state could not identify a permissible alternative in a particular case, it would be perverse to treat that as a reason to execute a prisoner by the method he has shown to involve excessive suffering.”

Gorusch’s aside about how “victims of capital crimes” generally do not have a “painless death” is telling, however. While his opinion uses historical factoids and dictionary definitions to dress up its predetermined conclusion, Gorsuch is unable to hide that he’s a soldier in a culture war, not a dispassionate judge reluctantly applying the law. His opinion is filled with palpable contempt for legal challenges brought by death penalty defendants and frustration for the fact that states can’t execute people more quickly.

The same contempt can also be readily seen in the recent refusal of the same five justices in today’s majority to stop a different execution, although the state’s refusal in that case to allow a condemned Muslim prisoner to have his imam be present is in flagrant violation of the First Amendment’s Establishment Clause.

But compassion for crime victims should not overwhelm the precepts on which the country was founded, and making sure the machinery of execution is well-oiled by the courts is the wrong priority. As Justice Sotomayor observes in her dissent in Monday’s case, “[t]here are higher values than ensuring that executions run on time.” Ensuring that people are not tortured to death are certainly among those higher values, and had the Electoral College not selected the runner-up in the 2016 popular vote, the Supreme Court would actually have represented them again.

As befitting Trump’s flagship nominee, one thing you can’t deny about Gorsuch is his willingness to say the quiet parts loud.