“Gorsuch just handed down the most bloodthirsty and cruel death penalty opinion of the modern era” read the headline in ThinkProgress. “Unusual Cruelty at the Supreme Court,” was the Atlantic’s headline. And the Baltimore Sun titled its editorial, “On death penalty, Supreme Court veering badly off course.”
The opinion eliciting so much shock and outrage was last week’s 5-4 decision in Bucklew v. Precythe. Writing for the majority, Justice Neil Gorsuch said, “The Eighth Amendment forbids ‘cruel and unusual’ methods of capital punishment but does not guarantee a prisoner a painless death.”
Russell Bucklew, a Missouri death row prisoner, suffers from cavernous hemangioma, a rare medical condition that causes blood-filled tumors in his head, throat and lips. During oral argument last November, his lawyer, Robert Hochman, argued that if the state executes Bucklew by lethal injection he will choke to death on his own blood, thereby violating the Eighth Amendment prohibition of cruel and unusual punishment. He told the justices that he wasn’t objecting to lethal injection because he was anticipating there would be problems with the procedure — “I’m assuming everything’s going to go exactly the way they intend it” — he was objecting because Bucklew’s condition is such that even “If everything goes according to plan, there is constitutionally significant suffering.”
And, in accordance with two Supreme Court decisions, Baze v. Rees and Glossip v. Gross, Hochman suggested an alternative method: the state should use lethal gas (nitrogen), thereby avoiding injecting Bucklew’s compromised veins.
But Gorsuch found that Bucklew’s suggested alternative method “falls well short” of the standard set by Glossip that the proposal “must be sufficiently detailed to permit a finding that the State could carry it out relatively easily and reasonably quickly.” And he added that, “We see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative—assuming, of course, that the inmate is more interested in avoiding unnecessary pain than in delaying his execution.”
The opinion was notable not only for its cruelty, but also for its defiance, as if the conservative majority was displaying its contempt for the four liberal justices. The opinion arguably redefined the Eighth Amendment, and seemed to signal the door is open to expanding the death penalty, reversing the Court’s narrowing of its application over the past few decades. “The truculent tone suggests the new conservative majority will tolerate no more back talk on this death business,” wrote Garrett Epps in the Atlantic.
In ThinkProgress Ian Milhiser said, “It is at once the most significant Eighth Amendment decision of the last several decades and the cruelest in at least as much time.” Slate called it an “appalling” opinion in which “five justices of the Supreme Court authorized Missouri to torture a man to death.”
But as reprehensible as the opinion is, it should not have come as a surprise, when you consider the source. Gorsuch, after all, was one of the judges on a three-judge panel of the United States Court of Appeals for the 10th Circuit that heard an appeal from the family of Clayton Lockett in 2016. They had filed a lawsuit against the state of Oklahoma alleging that the execution team had violated Lockett’s Eighth Amendment rights against cruel and unusual punishment after he died an agonizing death during a botched execution in 2014. He took 43 minutes to die in a death chamber that the prison warden said in court filings was “a bloody mess.” He was punctured at least 16 times while a doctor tried to find a vein in which to inject the three-drug lethal cocktail, and witnesses said he “was writhing and bucking” on the gurney when officials finally stopped the execution after about 20 minutes. But his veins then “exploded,” a corrections department officer said, before he died of a “massive heart attack.” He was 38 years old.
Nevertheless, Gorsuch and the other two judges ruled against the family, finding that the torturous execution was simply an “innocent misadventure.”