Yesterday, Ed wrote at length about the recent Supreme Court decision on whether certain forms of capital punishment in a Missouri case constitute cruel and unusual punishment. (If you missed that one, you should definitely read it before proceeding.) While I agree that Missouri probably hurt their own cause by refusing to offer the convict the option of nitrogen-hypoxia, the argument going on between Associate Justices Gorsuch and Breyer is a compelling one that will likely be cited in many future cases. But does it really focus on the underlying issue?
I got to thinking about this a bit more reading some of the coverage of the case from the BBC. In the brief section below, they begin with what seems to be a key portion of the majority opinion penned by Gorsuch.
He continued: “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.”
Liberals on the court, including Justice Stephen Breyer, argued that Bucklew’s condition should have allowed for him to be put to death by nitrogen gas, a method allowed in three states.
“There are higher values than ensuring that executions run on time,” wrote Justice Sonia Sotomayor in a separate opinion, adding that secrecy in the death penalty process has recently yielded different results in two similar cases.
It seems to me that offering the convict multiple options might have been a more efficient way of doing things but, in the end, it comes down to the laws passed by the individual state. We can debate all we like about what the “best” method of execution may be, but if the state has settled on lethal injection, and as long as capital punishment isn’t once again declared unconstitutional entirely, their method would be the one to prevail.
And yet, even that issue doesn’t appear to resolve the underlying question. The Eighth Amendment considerations are valid, but when it comes down to the definition of “cruel and unusual” punishment, there’s a question of intent involved. Is the state doing something to the prisoner for the sole purpose of inflicting pain on them? If the answer is yes, then it fails the Eighth Amendment test. But when it comes to capital punishment, the objective is to end the prisoner’s life. How did we arrive at the idea that such a process was ever going to be (or needs to be) “painless?”
Hanging, the gas chamber, the electric chair (!), firing squads and lethal injection are all violent actions. There’s going to be some element of pain involved at some point. And the only people who are subjected to the death penalty tend to have caused one heck of a lot of pain and suffering to somebody else or they wouldn’t be in that position. If we went back to some old English/European methods such as drawing and quartering, that would obviously be an example of dragging out the proceedings and inflicting as much pain as humanly possible. But all of the methods currently under consideration offer as rapid of a death as can be managed, and isn’t that the point of the entire exercise?
This court probably arrived at the correct decision, at least in my opinion. But the justices took a circuitous route to arrive at their conclusion and focused far too much on questions that probably don’t need to be applied to capital punishment cases.