The death penalty is dying a slow, lingering death in America, but for every day it continues we write a new chapter of moral infamy for ourselves. We know the death penalty executes the innocent. We know it unfairly singles out minorities. We know it is, to all intents and purposes, solely applied to the poor and indigent. We know it does not deter homicide. We know, too, that it exploits the grief of victims’ families, who may wait decades for a “justice” that brings no so-called closure, but only renewed sorrow. And we know, too, that American executions are not infrequently bungled, often using untested or inappropriate drugs, sometimes illegally obtained, which inflict prolonged and excruciating pain.
That brings us to the case of Bucklew v. Precythe, decided on April Fool’s Day by a 5-4 majority in the U.S. Supreme Court. It is a decision that should make us all shudder for the future of our country, and not on the issue of capital punishment alone.
Russell Bucklew, who is 50 years old, was convicted in Missouri in 1996 for the murder of his former girlfriends’ lover, which is precisely the kind of offense — a crime of passion — that by definition cannot be deterred by penalty. Bucklew also suffers from a rare disease, cavernous hemangioma, which causes tumors in the neck and lungs. His condition is so severe that he must sleep at a 45-degree angle to avoid choking. Execution in Missouri is carried out by a single drug, pentobarbital. Medical testimony indicates that, if executed in this way, Bucklew would drown in his own blood. His argument was that this would constitute cruel and unusual punishment, forbidden under the Eighth Amendment. Bucklew did not challenge his execution as such. He simply asked that it be carried out less painfully.
The usual method of execution in America until the late nineteenth century was by hanging, which was designed to break the neck but often resulted in death by choking instead. The electric chair replaced this by shooting up to 2,000 volts of electricity through the body of the condemned. The smell of burning flesh eventually convinced authorities to institute a new execution method, the gas chamber. This produced death by asphyxiation in every case instead of, as only occasionally, in hanging. Lethal injection was then introduced, in theory inducing death through chemicals that produced, successively, loss of consciousness, general paralysis and stopping of the heart. What the condemned prisoner experienced was conjectural, but the intended result, for witnesses, was an apparently painless death. In all of these methods, concern was not for the executed prisoner but for the sensibility of witnesses. Whether the method was cruel or unusual for him was not the point. It was whether it was disturbing for the executioners themselves, the state’s official witnesses and for the general public informed by the press. This was the reason why executions, a public spectacle for as long as have record, were moved indoors in the nineteenth century. Supporters of the death penalty were eager to have justice carried out. They just didn’t want to have to see it.
Bucklew was just minutes away from death on a previous execution date in 2014 when a stay was issued. That was the year of an appalling botched lethal injection in Ohio, which led the prisoner next in line for death, Charles Warner, to challenge Ohio’s execution process. Warner’s appeal was rejected by the Tenth Circuit Court, on which Neil Gorsuch, who wrote the Supreme Court’s Bucklew decision, then sat. Warner was executed in January 2015, his last words being, “My body is on fire.”
Warner’s appeal spawned a Supreme Court case reviewing lethal injections in general, Glossip v. Gross. Writing for a majority upholding the use of even untested and unvetted drugs, Samuel Alito wrote that pain as such was frequently incidental to death, and that “while most humans wish to die a painless death, many do not have that good fortune.” Comparing a natural death, in which medical responsibility is to minimize pain as far as possible, with inflicted death, which necessarily produces it, so morally grotesque as to defy comment. It is also characteristic, not only of Alito’s pronouncements, but of the capital jurisdiction of the Roberts Court in general.
That Court’s denial of Bucklew’s appeal was partly based on Glossip, which placed on future appellants the requirement of proposing an alternative method of execution. This too was grotesque, as it offloads the responsibility for choosing his own degree of torture onto the prisoner himself. Bucklew did however choose nitrogen hypoxia, the legal alternative to lethal injection in Missouri. The Court rejected this on the grounds that it had never been used before in the state. This was a wholly novel objection, since untried versions of the lethal injection cocktail had been used previously in numerous states. Bucklew does not have a pending execution date, so that he will have further leisure to contemplate choking to death on the blood from his ruptured tumors.
With Neil Gorsuch and Brett Kavanaugh now joining the Court’s conservative majority, we may expect the worst on a whole range of subjects, life and death chief among them. My friend Terry Williams, who spent more than thirty years on Pennsylvania’s Death Row in a conviction obtained by suborned perjury and concealed evidence, did benefit in his own Supreme Court appeal from the swing vote of Justice Anthony Kennedy. Bucklew might have benefited from Kennedy’s vote too. But he is now retired, and the Supreme Court is in the hands of a bench that, in the words of Liliana Segura, “legalized torture long ago.”
We’re in a spot of trouble these days. The executive branch of our government is the hands of an autocrat who gives daily evidence of dementia. Our legislature is stymied by a Senate that cheers him on. And our judiciary, the last line of defense in our democracy, seems content to administer the world’s most barbaric punishment in the most barbaric ways. Dealing with that and all the malfeasance the Roberts Court presents us with, may be the most difficult problem of all.