The post–Anthony Kennedy Supreme Court majority has introduced itself to the nation by strapping itself to the decaying corpse of the American death penalty.
It is a curious choice. Capital punishment is a relic of a harsher time, now stumbling toward extinction, unpopular with both right and left. For these conservative justices—Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—to embrace it is like an American politician journeying to the Soviet Union in 1991 and saying, “I have seen the future and it works!”
In February, the Court rejected a plea from an Alabama inmate to have his spiritual adviser in the death chamber with him as he died. The inmate was Muslim, and Alabama law allows only the prison’s full-time chaplain, a Christian, to fill that role. Remarkably, the Court had no need to become involved. The U.S. Court of Appeals for the Eleventh Circuit had already granted the inmate, Domineque Ray, a stay of execution until a court could hear his religious-freedom claim. The Eleventh Circuit encompasses Alabama, Florida, and Georgia—the heart of the death belt. Its judges hear in one year more death cases than Roberts, Thomas, or Kavanaugh heard in their whole careers on the circuit bench. (The Tenth Circuit, where Neil Gorsuch was previously seated, includes Oklahoma, which conducted 33 executions during his tenure; only one other state in the circuit, Utah, conducted an execution during that time.)
The Eleventh Circuit panel held, first, that Ray had brought his claim as soon as he found out about the policy (which Alabama had kept secret until a few weeks before his execution) and, second, that he was likely to win on his religious-freedom claim. Prudence and comity, if not simple humanity, would have counseled that the Supreme Court stay out of the case at that point. But the Court lifted the stay, claiming that Ray had waited too long to raise his claim. He was executed immediately afterward.
The general dismay this decision stirred wasn’t quieted when, on March 20, the Court ruled the other way on an indistinguishable set of facts: In Texas, a Buddhist inmate’s pleas for a cleric of his faith were met by the rule that only a prison chaplain could be present in the execution chamber (Texas had a Christian minister and a Muslim imam but no Buddhist). Lest anyone think that the pro-death justices were going wobbly, however, Gorsuch and Thomas both dissented from the stay, and Kavanaugh suggested that Texas should just exclude all spiritual advisers from the death chamber. On April 3, Texas followed the suggestion; problem solved!
Then, on April 1, the Court’s majority rejected a timely plea from a Missouri inmate that his rare health condition—fragile, blood-filled tumors in his face, neck, and mouth—would make lethal injection agonizing. In his opinion for the five-justice majority, Gorsuch was flippant: “The Eighth Amendment does not guarantee a prisoner a painless death—something that, of course, isn’t guaranteed to many people, including most victims of capital crimes.”
Gorsuch repeated Alito’s claim of a few years back that the lack of painless execution drugs is due to “pressure from anti–death penalty advocates.” (In fact, sodium thiopental, the drug he was discussing, is now made only in Europe, and under EU law can’t be exported to the U.S. or anywhere else for use in executions.) He also inveighed against lawyers’ pleas for “last minute stays.” (Bucklew’s case was first brought in 2012.) And in a snarling footnote, he insisted that the Alabama Muslim-chaplain case had been rightly decided; true, the state kept its protocol secret, but, Gorsuch, without the slightest hint of irony, suggested Domineque Ray should have been able to figure it out by using a lawyer’s skill of carefully construing a state statute that made no mention of the issue.
Next, on April 12, the five-justice majority rejected an appeal by Christopher Lee Price, an Alabama inmate who was seeking execution by lethal gas—a method approved by the state of Alabama and apparently close to implementation—instead of lethal injection. The inmate’s appeal had originally been rejected largely because his lawyer filed the wrong copy of a scientific paper on the pain level of gas execution, one marked “preliminary” rather than “final.” (The “final” report contained the identical finding about pain levels.) A district court, having seen the final report, stayed the execution, but the Eleventh Circuit gave the green light and the Supreme Court did the same.
All told, the five conservatives have had quite a run this term. The question that haunts me is why. None of the inmates seeking stays was claiming to be innocent or even asking for a new trial; each had a serious claim that a stay might make his death less agonizing. The five-justice majority seemed to give these factors no significance; instead, it grumbled about last-minute appeals.
Perhaps the rationale is that the new sheriff in town needs to bring these lawless death-penalty lawyers to heel. If so, that is rubbish. I know of no area of law, civil or criminal, where honorable, good lawyers do not strenuously advocate for their clients up to the moment when it is too late to try. Corporate lawyers who protract litigation are often heroes in the hushed-tone precincts of the federal bench; but those who seek to save their clients’ lives instead of money are now the subjects of baseless disapproval.
The Court’s death jurisprudence involves a lot of let’s-pretend. In the 2008 case of Baze v. Rees, Roberts enunciated a principle that seems to have hardened into conservative dogma: “Capital punishment is constitutional. It therefore necessarily follows that there must be a means of carrying it out.”
This error would be glaring to a sophomore philosophy student: “Because a human-staffed mission to Mars is constitutional, it necessarily follows that there must be a means of getting to Mars.” Um, no. Death as a punishment may, in the abstract, be constitutional if carried out without gratuitous infliction of pain, but history suggests that there is no such method. As far back as we have records, humans have been killing one another under color of law, and every means they have devised—the stone, the sword, the stake, the guillotine, the rope, the gas chamber, the electric chair, the injection gurney—has, over time, been revealed as unspeakably cruel. Human beings are not easy to kill, and other humans usually make a bad job of it.
During the Reagan years, perhaps, a segment of the public yearned for state-inflicted death, but in 2019, that is no longer true. The Duke law professor Brandon Garrett, in his 2017 book, End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice, documents what he calls “the great American death penalty decline.” Analyzing the figures, he finds that “death sentences have declined by more than two-thirds since 2000, reaching the lowest levels since the early 1970s.” In an interview, Brandon told me that since the book’s publication, “the trend has deepened. We are at a 10th of the death-penalty-sentencing level of the 1990s.” Capital punishment is no longer as popular with the public, he said, which means that jurors are less eager to sentence offenders to death. “Even major death-penalty centers like Houston and Virginia” have seen steep declines.
According to the Death Penalty Information Center, “New death sentences and executions remained near historic lows in 2018 and a twentieth state abolished capital punishment, as public opinion polls, election results, legislative actions, and court decisions all reflected the continuing erosion of the death penalty across the country.” Many of the states that formally have the death penalty have not carried out an execution in years. California has 740 prisoners on its death row, and last carried out an execution in 2006; its new governor, Gavin Newsom, in January granted at least a temporary reprieve to all those awaiting death in the state’s prisons, closed the state’s execution chamber, and withdrew its execution protocol—in effect taking the state out of the execution business. Governors in Colorado, Oregon, and Pennsylvania have done the same. New Hampshire’s legislature recently passed a repeal bill by veto-proof margins.
Because it is both cruel and expensive, the death penalty is collapsing of its own weight, and five angry men in robes cannot save it. That they are willing to try, as I said above, is curious.
For generations, determined men and women have proclaimed certain bedrock principles “hills to die on.” These five justices, despite all caution, have found a hill they are willing to kill on.
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