Critics on Tuesday said the U.S. Supreme Court’s ruling in a case brought by a Missouri death row inmate fundamentally erodes protections against torture enshrined in the U.S. Constitution.
Justice Neil Gorsuch wrote the opinion for the court’s right-wing majority in the 5-4 decision, ruling that Russell Bucklew can be executed by lethal injection despite his medical condition, cavernous hemangioma. The disease, warn his legal team and medical experts, will cause Bucklew to choke for several minutes on his own blood before dying as the tumors growing in his throat and elsewhere in his body rupture.
“The Eighth Amendment does not guarantee a prisoner a painless death,” wrote Gorsuch.
The decision was denounced as “atrocious,” “blood-thirsty” and “barbaric” by death penalty abolitionists and other critics, with some saying the high court’s approval of Bucklew’s execution is tantamount to nullifying the Constitution’s Eighth Amendment—the law banning cruel and unusual punishment.
Gorsuch argued in his opinion that Bucklew did not make his objection known early enough to change the state’s planned course of action and accused the inmate of trying only to delay his execution.
The judge, who was confirmed in 2017 after being nominated by President Donald Trump, also suggested that Justice Clarence Thomas’s extreme view on the Eighth Amendment—that “cruel and unusual punishment” should be understood only as pain that is deliberately inflicted—is now the law of the land.
At the legal analysis blog Above the Law, Elie Mystal wrote that Gorsuch’s opinion will not only condemn Bucklew to a painful death instead of forcing the state to find a less painful method, as the inmate requested, but will weaken the Eighth Amendment’s protections for other death row inmates for generations to come.
“Unknown numbers of innocent people have been executed in this country since the death penalty was reinstated,” wrote Mystal. “Untold numbers of guilty people have known the spiteful vengeance some people mistake for justice. Through it all, the Eighth Amendment sits on the sidelines, a grand idea neutered by our society’s rage and cowardice, waiting for better men and women to live up to its noble promise.”
“If a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out.” —Justice Sonia Sotomayor
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“But Neil Gorsuch is not a better man,” he continued. “Instead of just killing the murderer and being done with it, Gorsuch could not resist seeing the Bucklew case as an opportunity to experiment with justifications of the state’s right to inflict suffering that have long been discarded by decent people.”
In the minority’s dissent, Justice Sonia Sotomayor rebuked Gorsuch’s position that Bucklew’s execution must not be delayed any longer. Before retired Justice Anthony Kennedy was replaced by Justice Brett Kavanaugh last year, Kennedy joined Sotomayor and three other justices to issue a stay on Bucklew’s execution.
“There are higher values than ensuring that executions run on time,” Sotomayor wrote. “If a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.”
In allowing Bucklew’s execution to proceed, instead of adhering to decades of interpretation of the Constitution, Ian Millhiser wrote at Think Progress, the majority opinion “literally tears out the heart of more than a half-century worth of Eighth Amendment precedents, and replaces it with a very different legal rule that, until recently, was rejected by all but the Supreme Court’s most hardline conservatives.”
“The majority’s willingness to cast aside one of the most firmly established assumptions of constitutional law so casually,” Millhiser added, “suggests that they will do it again. And again. And again.”