The moral argument against the death penalty is actually harder to make than the legal argument against the death penalty. Most people who oppose the death penalty on moral grounds think it’s the other way around; they think that the sanctity of human life offers sufficient justification, and the law muddles it up somehow. But just Netflix any blockbuster from, say, the last 30 years, and you’ll see that view has it twisted. We live in a culture that fetishizes vengeance. Nobody is going to cry if Tony Stark blasts Thanos’s face off this summer. Nobody is going to care if Game of Thrones returns with a ritualistic burning of the Lannisters. Morally, our society is more at peace with the death penalty than it might seem.
Compared to moral philosophy, the law offers a much more compelling case against capital punishment. Some would argue that the first law is a law against capital punishment: thou shalt not kill. And if Charlton Heston is not your idea of a law-giver, political philosophers will tell you that the only reason we’re even in a “society” is because “law” was the only way to stop the endless cycle of revenge-killings that we would clearly engage in without it. The law has ever tried to mollify our thirst for vengeance.
Making the case that the death penalty is unconstitutional is downright easy. First of all, juries get it wrong, all the time. Apparently, 165 people have been freed from death row since 1973, and that must mean that some number of innocent people have been put to death. I’m going to go out on a limb and assume that killing innocent people violates some constitutional principle, or all of them. More specifically, we know that race plays a significant factor in who gets put to death, and that’s a pretty clear violation of the 14th Amendment’s promise of due process.
Oh, and there’s this whole constitutional amendment that says: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Eighth Amendment seems pretty dispositive on this issue. The Supreme Court has literally explained why the death penalty violates the Eighth Amendment, in the 1972 case Furman v. Georgia.
But Furman was functionally overturned just a few years later. Since 1976, we’ve executed around 1,500 people. Texas basically does it for sport now. The death penalty remains attached to our society like a vestigial tail reminding us of our bestial savagery.
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Why? Why hasn’t the law been able to stop us from doing the thing it was arguably invented to stop us from doing? Well, because we keep putting people like Neil Gorsuch on the Supreme Court.
This week, Gorsuch wrote a majority opinion that was both shockingly cruel and entirely consistent with arch-conservative thought. The case is called Bucklew v. Precythe. Russell Bucklew is a convicted murderer whose depraved crimes are not in dispute. He was sentenced to death in Missouri. Missouri is a lethal-injection state, but Bucklew has a rare medical condition that would cause him to be in extreme pain as the lethal drugs do their work. Bucklew appealed his sentence, arguing that the pain would be a violation of his Eighth Amendment protections, and asked for alternative methods of death that are not sanctioned under Missouri law.
Gorsuch, writing for a 5-4 majority, denied his appeal. Gorsuch wrote: “The Eighth Amendment forbids ‘cruel and unusual’ methods of capital punishment but does not guarantee a prisoner a painless death.” That’s about the most heartless-bastard thing I’ve read in a while, and I work on the Internet.
Everybody should notice the sleight of hand Gorsuch is playing at here. Saying the Eighth Amendment only forbids certain “methods” of capital punishment presupposes that the Eighth Amendment allows capital punishment. That’s no better than saying you can’t drown a person, unless she’s a witch.
Gorsuch is demonstrably wrong. The Eighth Amendment makes no mention of death, painless or otherwise. It talks about cruelty. It contemplates unusual cruelty. Throwing me off the top of the Empire State Building would be almost entirely painless until I came to a sudden stop. It would still be cruel. It would still be unusual.
Would that Russell Bucklew was the only person doomed to suffer under Neil Gorsuch’s perverse interpretations. But what Gorsuch is doing here is creating an entirely new Supreme Court interpretation of the Eighth Amendment. Later in his opinion, Gorsuch explains that the Eighth Amendment is only offended when the method of death is “superadded” with some additional measure of “terror, pain, or disgrace.”
That’s new. Up until now, even as we allow for capital punishment, the central question has been whether the method of death is the most “humane” form of murder, oxymoronic as that phrase may be. Even though conservative judges have ruled time and again that no particular method of execution is too inhumane for our bloodthirsty desires, this view that any method is okay so long as the state doesn’t go out of its way to hurt you had only been the arch-conservative minority opinion.
It’s also a standard that is near impossible for a condemned person to meet. Unlike their ancestors, modern executioners do not make a habit of preening and dancing and pontificating about how the pain they’re about to inflict is good for the condemned soul. How can a person prove that the state is trying to hurt them when it’s already established that the state is trying to kill them? It would seem Neil Gorsuch reads Franz Kafka for cool new ideas on how to mentally torture death-row inmates.
To give his monstrous opinion the veneer of civilized thought, Gorsuch digs deep into his “originalist” bag of tricks. Gorsuch spends a lot of time detailing all of the horrible methods of execution that had fallen out of favor by the time the Eighth Amendment was ratified. The goal is to show that the founding fathers were perfectly okay with capital punishment (which they were) but had a civilized approach to it that comports with our modern views. The argument is that the Eighth Amendment should be read with these upstanding fellows in mind, men who were not interested in abolishing the death penalty, but wanted to ensure that the medieval tortures of the Old World were not transported to their New World.
Gorsuch tells us that some methods of death were clearly prohibited by the Eighth Amendment at the time of the Founding:
These included such “[d]isgusting” practices as dragging the prisoner to the place of execution, disemboweling, quartering, public dissection, and burning alive, all of which Blackstone observed “savor[ed] of torture or cruelty.”
Methods of execution like these readily qualified as “cruel and unusual,” as a reader at the time of the Eighth Amendment’s adoption would have understood those words.
The founding fathers can choke on a cherry pit for all I care about their “enlightened” views on executions. Gorsuch conveniently leaves out that all of the methods he lists, every single one, remained well in use, in America, long after the Constitution and Eighth Amendment were ratified. Those methods were just primarily used to kill slaves and Native Americans is all. The originalist view of American history always seems to ignore how these same Founding Fathers treated nonwhites. I wonder why.
The Eighth Amendment should not be caged and hobbled in accordance with the wishes of the simple and bigoted minds who wrote it. It’s not our fault that these hypocrites blurted out a principle that would honor human dignity more than they had the will to in their own time. Way back in 1958, the Supreme Court said that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” The Eighth Amendment isn’t an artifact; it’s a challenge. It’s not something to hide behind; it’s something to live up to.
But Neil Gorsuch, and a legion of conservative legal “thinkers” like him, don’t want our society to mature and evolve. They want it to arrest and ossify. They don’t view the Constitution as a floor upon which we can build a better society;, they view it as ceiling which we are doomed to forever struggle against.
People will suffer because of this opinion. More people will spend their last moments on this earth in agonizing pain, because of this decision. That primarily (though not exclusively) “bad” people will suffer is the only reason Gorsuch thinks he can get away with authorizing such suffering. (I’ll spare you Brett Kavanaugh’s concurring opinion in this case, because it’s just a thoughtless contemplation of firing squads. He sounds like a child who’s just figured out he’s strong enough to pull the wings off a fly.)
This decision is immoral. It is painful. It is evil. You don’t even have to be morally against the death penalty to understand what has been done here. You just have to be more decent than Neil Gorsuch.
