Taken during a media tour of California's Death Row at San Quentin State Prison in December 2015Stephen Lam / Reuters

"From this day forward,” Justice Harry Blackmun announced in 1994, “I no longer shall tinker with the machinery of death.” Blackmun had voted to restore the death penalty and even to approve mandatory death sentences. But after 25 years, he said, “I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed … the problems that were pursued down one hole with procedural rules and verbal formulas have come to the surface somewhere else, just as virulent and pernicious as they were in their original form.”

Another quarter-century has passed, and the machinery of death chugs on, patched with judicial duct tape and legislative Crazy Glue. States have adopted new “more humane” execution methods (which sometimes require them to acquire lethal drugs on the black market); Congress has made it nearly impossible for federal courts to help most state death defendants. The Supreme Court, meanwhile, has refined the rules about who can be executed (barring, for example, prisoners with intellectual disability) and who can impose a death sentence (juries, not judges, must find “aggravating factors” in a defendant’s offense).

But “use of capital punishment is declining in America,” the University of Virginia law professor Brandon Garrett and co-author Ankur Desai wrote in a recent study. “Death sentencing has fallen to a modern low and executions are increasingly rare.” Twenty-six inmates were executed last year, 16 so far in 2018. Meanwhile, courts in 2017 sentenced 39 defendants to death. More than 2,700 defendants wait on death row—and the backlog is growing.

Two cases this fall may require the Supreme Court to tinker further. Madison v. Alabama, to be argued on October 2, asks whether states can execute demented murderers who no longer remember their crimes; Bucklew v. Precythe asks when, if ever, a prisoner’s individual physical condition makes execution by lethal injection “cruel and unusual.”

Vernon Madison murdered an Alabama police officer in 1985. The state twice procured death sentences by using unconstitutional tactics—first, excluding blacks from the jury and, second, sneaking improper evidence into the record. After a third trial, the jury recommended life in prison, but the trial judge imposed a sentence of death. That sentence was affirmed by state courts in 1998; Madison then filed federal challenges, which were finally rejected in 2015.

Meanwhile, Madison’s health collapsed. After a series of strokes, he is now unable to walk, and is also incontinent, legally blind, and so demented that he cannot recite the alphabet or rephrase a simple sentence. Perhaps most important legally, he can no longer remember the crime he committed, though he does understand that the state plans to execute him for murder.

Madison’s legal team—led by Bryan Stevenson of the Equal Justice Initiative—argues that “No penological justification or retributive value can be found in executing a severely impaired and incompetent prisoner.”

Alabama’s response is that the goals of capital punishment—retribution for the wrong and sending a warning to possible future offenders—are served as long as Madison knows why he is being executed, even if he doesn’t remember committing the acts. Madison’s particular condition may have been verified by doctors, the state argues, but dementia has many causes. Future claims of dementia and memory loss will be too easy to fake.

The high court has already held that states may not execute the mentally ill or the intellectually disabled; the leap to the demented would seem inevitable. But Justice Anthony Kennedy, the force behind these limits, has left the court, and death jurisprudence, as of the first Monday of next month, will likely be more volatile than usual.

In November, the court will take up the case of Russell Bucklew, whom the state of Missouri seeks to execute for the 1996 murder of Michael Sanders. Sanders had given shelter in his trailer to Stephanie Ray, Bucklew’s former girlfriend, and her children. Bucklew stalked Ray and burst into the trailer with a shotgun. He killed Sanders and abducted Ray; she was freed only after a police chase and shootout in which she was wounded. While Bucklew was awaiting trial, he escaped from a local jail and attacked Ray’s mother and her fiancé with a hammer.

In the current case, Bucklew doesn’t contest his guilt, nor does he claim that Missouri’s lethal-injection protocol is in itself “cruel and unusual.” His is what lawyers call an “as applied” challenge. What that means is this: Though lethal injection may pass muster for most executions, he argues, in his individual case, because of his unusual physical condition, the injection will cause him intense and intolerable pain. He suffers from a rare medical condition call cavernous hemangioma. The condition has given rise to multiple blood-filled tumors in his head and mouth. These make it difficult to breathe and are prone to bloody rupture. He must sleep sitting up to avoid choking on his own blood. Being strapped flat to a gurney will subject him to suffocation, he argues. In addition, since his blood vessels are affected, he says, those administering the drugs will probably have to use a lengthy and painful procedure called a “cutdown” before the drugs can be administered, prolonging the agony.

The Eighth Circuit rejected his petition for habeas corpus relief. The appeals court relied on a 2008 Supreme Court precedent, Baze v. Rees. In Baze, a court plurality held that prisoners who challenge a method of execution must show the court an alternative method of execution that imposes less risk of unnecessary pain. Bucklew argued that this requirement might make sense in the case of prisoners without special medical conditions. It shouldn’t apply, he said, in “as applied” challenges. In other words, there could easily be prisoners in such poor health that no method of execution would be humane.

Nonetheless, Bucklew did offer an alternative already provided in Missouri law—a gas chamber filled with nitrogen gas, which would render him unconscious and then dead without the agony of suffocation. The Eighth Circuit said that he did not prove the gas chamber would be better. The court below had heard from two expert witnesses—one who described the agony of lethal injection and another who stated that gas would kill him more quickly. A trial court could compare the two descriptions and reach its own conclusion about relative agony. Not good enough, said the appeals court; Bucklew was required to provide one expert who would offer “comparative testimony”—in effect, a single witness to say that one method is less cruel than another.

Finally, Bucklew asked the court to allow his lawyers to submit questions to the two prison personnel—their names are shielded by state law and they cannot be medical professionals—who will administer the injection, to determine whether they have the knowledge and skill to perform it without unnecessary agony. The appeals court rejected that as well: “we will not assume that Missouri employs personnel are incompetent or unqualified to perform their assigned duties,” the panel said.

In general, the Eighth Circuit opinion turned Bucklew into a kind of legal Sisyphus; as each boulder was pushed to the top, the court sent it back down to the bottom with a new requirement. He has asked the court to look at all three rulings—on “as applied” challenges, on the need for a single witness, and on the odd “assumption” that prison personnel are competent. In addition, he will argue that the testimony he did present met the burden of showing that lethal gas would be a more humane method of death.            

The Bucklew case, however it is resolved, shows how fully the court has become enmeshed in the sordid details of official killing. As the population of death row ages, issues of age-related disease and dementia will become more important in assessing individual death warrants, and the court will be the last stop for those challenged.

The court seems likely to be hostile to prisoners’ claims, however. In recent years, when the high court stepped in to halt executions, Justice Anthony Kennedy was usually the deciding vote. Kennedy will almost certainly be replaced by Brett Kavanaugh. Kavanaugh is formally an unknown on the issue. His conservatism in general, however, is orthodox, and conservative orthodoxy is hostile to new claims that executions are “cruel and unusual.”

During oral argument in a 2015 case, Justice Samuel Alito complained that opponents had waged “guerilla war” against the death penalty. The late Justice Antonin Scalia once said that prisoners sentenced to death were the lucky ones: “The capital convict will obtain endless legal assistance from the abolition lobby (and legal favoritism from abolitionist judges), while the lifer languishes unnoticed behind bars.”

This judicial truculence is unbecoming; but it can perhaps be understood. The question of capital punishment is usually phrased as whether the Eighth Amendment “permits” states to conduct executions. But there is a long-lived strand of Western moral thought that argues that the death penalty is not simply permitted but required in a just society; to eschew execution, this argument goes, is to overvalue the lives of murderers and undervalue the lives of their victims.

I saw a trace of that idea in Baze v. Rees, when Chief Justice John Roberts wrote for a plurality of the Court that “capital punishment is constitutional. It necessarily follows that there must be a means of carrying it out.” This enthymeme rolls easily off the pen, but it is not valid; Roberts calls to mind St. Anselm of Canterbury, who argued in the 11th century that, because humans can imagine a perfect being, it necessarily follows that such a being—God—must exist.

Inspired by the asserted blessing of the Constitution, Roberts imagines a coherent institution called “capital punishment” can be administered humanely to those who deserve it. If such a system exists, the logic would run, then for guilty killers to resist it is simple contumacy.

But recent botched executions—prisoners choking and convulsing, or strapped to the gurney for as long as two hours while prison techs tried to find a vein —underscore what should be obvious. There is no “capital punishment,” no machinery of death, that stands apart from the ad hoc efforts of ordinary mortals to improvise the killing of fellow humans, whose bodies quite naturally fight for life up to and beyond the last agonizing breath.

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