Supreme Court Endorses State’s Right To Torture A Man To Death

The Bush administration instituted a legal framework for the use of torture during its so-called “war on terror”. Today, the Supreme Court legalized torture as a constitutionally protected method for instituting the death penalty. In a 5-4 decision, with the conservative justices providing the majority as usual, the Court rejected a challenge from a death row inmate who was scheduled to die from a lethal injection. Because of a rare medical condition, the inmate claimed that the effects of lethal injection would force tumors in his throat, which already make it difficult for the inmate to breathe, to burst and bleed with the possible result that he would suffocate to death on his own blood rather than by the medical effects of the lethal injection. Such a death, the inmate claims, would violate the Eighth Amendment’s ban on “cruel and unusual punishment”. Instead, the inmate asked to be executed by lethal gas which would reduce his chances of suffocation.

The conservative majority rejected this challenge and in doing so also overturned fifty years of precedent in which an “evolving standards of decency” governed how state-sponsored executions were carried out in this country.

Writing for the majority, Justice Gorsuch declares, “The Eighth Amendment forbids ‘cruel and unusual’ methods of capital punishment but does not guarantee a prisoner a painless death…As originally understood, the Eighth Amendment tolerated methods of execution, like hanging, that involved a significant risk of pain, while forbidding as cruel only those methods that intensified the death sentence by ‘superadding’ terror, pain, or disgrace…[T]the risk of pain involved was considered ‘unfortunate but inevitable’…Nor do Baze and Glossip [two prior cases establishing precedent] suggest that traditionally accepted methods of execution—such as hanging, the firing squad, electrocution, and lethal injection—are necessarily rendered unconstitutional as soon as an arguably more humane method like lethal injection becomes available…Instead of requiring an inmate to establish that a State has unreasonably refused to alter its method of execution to avoid a risk of unnecessary pain, JUSTICE THOMAS and Justice Scalia [in those prior cases] contended that an inmate must show that the State intended its method to inflict such pain”. Gorsuch is also the justice who wrote in a lower court decision that an employee could be fired for not staying with his company’s broken down vehicle and freezing to death.

Gorsuch also rejected the inmate’s proposed alternative as insufficient because it did not provide enough detail as to how the lethal gas would be administered. Said Gorsuch, the inmate “presented no evidence on essential questions like how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some mixture of gases); how quickly and for how long it should be introduced; or how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks”. This is macabre in the extreme. Gorsuch now wants inmates seeking to receive alternative forms of execution to avoid needless pain and suffering to provide all the critical details of their own deaths. What human being thinks like this.

So there we have it. In theory, now, there is no Eighth Amendment prohibition on execution by hanging, firing squad, or other barbarous methods as long as the legislature can craft the legislation in a way that shows they are not intending to inflict additional pain. That is not hyperbole. Kavanaugh suggested as much in his concurring opinion. And, since state legislatures have become adept at racial gerrymandering without showing they intended to actually discriminate, this should not be a big hurdle for them to overcome. Whether states will is entirely another matter. The important point here is that these methods are now not prohibited by law. And if we have learned anything from the Trump administration, it is that norms can and will eventually be broken without laws to back them up.

Trump wants to return America to the mythical version of the 1950s. The Republican party wants a return to the pre-New Deal America. The conservatives on the Supreme Court are intent on taking us back to the 19th century.