On Monday, five justices of the Supreme Court authorized Missouri to torture a man to death. In the process, they appear to have overruled decades of Eighth Amendment precedents in a quest to let states impose barbaric punishments, including excruciating executions, on prisoners. The court’s conservative majority has converted a once-fringe view into the law of the land, imperiling dozens of decisions protecting the rights of death row inmates, as well as juvenile offenders. Its ruling signals the end of an Eighth Amendment jurisprudence governed by “civilized standards”—and the beginning of a new, brutal era in American capital punishment.
Russell Bucklew is a death row inmate in Missouri who suffers from a rare medical condition called cavernous hemangioma. Due to this disorder, his body is covered with tumors filled with blood vessels. The tumors are in Bucklew’s neck and throat, his lips and uvula, which make it difficult for him to breathe. They are highly sensitive and frequently squirt blood. A medical expert, Dr. Joel Zivot, has testified that if Missouri administers a lethal injection to Bucklew, he will die a slow, agonizing death. His tumors will rupture and fill his mouth with blood, and he will suffocate to death in unbearable pain, choking and convulsing on the gurney as he dies.
To forestall this fate, Bucklew sought to block his execution by lethal injection, arguing that it would violate the Eighth Amendment’s bar against “cruel and unusual punishments.” Under two Supreme Court precedents, Baze v. Rees and Glossip v. Gross, an inmate challenging his method of execution must provide an “available alternative” that will cause less pain.
Bucklew asked to be killed with nitrogen gas so that he can die from “hypoxia,” a lack of oxygen, because his death from hypoxia would be faster than his death from lethal injection.
In Monday’s Bucklew v. Precythe, the court rejected his claim by a 5–4 vote. Justice Neil Gorsuch’s opinion for the court, however, does much more than condemn Bucklew to a harrowing demise. It also quietly overrules, or at least erodes, more than 60 years of precedents, including several written by Justice Anthony Kennedy. Gorsuch embraced a vision of the Eighth Amendment supported by Justices Clarence Thomas and Antonin Scalia that has consistently been rejected as dangerously extreme by a majority of the court.
Here is how Gorsuch does it. Baze and Glossip, he writes, declare that if a death row inmate seeks to avoid a certain method of execution, he must identify a different one that can be feasibly administered. That is true. But why does the Eighth Amendment prescribe such a test? In Baze and Glossip, the court explained that “because it is settled that capital punishment is constitutional,” there “must be” a constitutional “means of carrying it out.” “[B]ecause some risk of pain is inherent in any method of execution,” the court has held, “the Constitution does not require the avoidance of all risk of pain.” The court’s duty, then, is simply to ensure that states do not impose a risky method of execution when a less painful method is at their disposal.
In 2008’s Baze and 2015’s Glossip, Thomas and Scalia went further. In both cases, they argued that, as originally understood, the Eighth Amendment only prohibited states from intentionally making executions more painful than they had to be. As Thomas wrote in Baze, an execution only infringes upon the Constitution when “terror, pain, or disgrace” are “superadded.” So long as a state does not “superadd” pain to an execution, it has complied with the Eighth Amendment. Thomas’ theory would effectively shut down challenges to every method of execution unless an inmate had (impossible to obtain) evidence that the state was sadistically and gratuitously increasing the pain of his death.
A majority of the court did not adopt Thomas’ view in either case. And in Bucklew, Gorsuch writes that “revisiting that debate isn’t necessary here.” But he then does exactly that—and adopts Thomas’ interpretation of the Eighth Amendment, effectively overruling 60 years of precedent.
Gorsuch first provides a minitreatise on the methods of execution permissible when the Eighth Amendment was ratified, including a grisly description of hangings. (“The force of the drop could break the neck and sever the spinal cord, making death almost instantaneous. … More often it seems the prisoner would die from loss of blood flow to the brain, which could produce unconsciousness usually within seconds, or suffocation, which could take several minutes.”) He writes that hanging was permissible because it wasn’t “intended to be painful,” which is Thomas’ test, not the Baze/Glossip test.
Then Gorsuch purports to lay out the actual Baze/Glossip test—and, in the process, smuggles Thomas’ test into it. The justice writes that, under this standard, a prisoner must “show a feasible and readily implemented alternative method of execution” when “the question in dispute is whether the State’s chosen method of execution cruelly superadds pain to the death sentence.”
Pay attention to this language: According to Gorsuch, “the question in dispute” here is whether lethal injection “cruelly superadds pain” to Bucklew’s death. But that language does not come from Baze or Glossip. It comes from Thomas’ separate opinions, which were joined only by Scalia. With one neat trick, Gorsuch has transformed the “superadds pain” test from a minority viewpoint to binding Supreme Court precedent.
Why does this matter? Because since 1958, the Supreme Court has rejected an originalist interpretation of the Eighth Amendment—which would, after all, permit the hanging of children, among other ghastly punishments. Instead, the court has asked whether a punishment violates the “evolving standards of decency” of a “civilized society.” Baze and Glossip did not embrace this standard, but they did not reject it, either. After all, by forcing states to use the less painful of two execution methods, the court adopted a resolutely nonoriginalist view that the Eighth Amendment may require a more “civilized” death. In Bucklew, Gorsuch gutted that logic and replaced it with Thomas’ hard-line originalism.
To what end? First, Gorsuch rejected Bucklew’s claim, asserting that he failed to prove death by nitrogen would really be “feasible” or less painful. Second, Gorsuch cast doubt on a vast range of precedents built on the “evolving standards of decency” rule by substituting it for the “superadds pain” principle. For instance, Supreme Court rulings outlawing the execution of minors, the mentally disabled, and individuals who committed nonhomicidal crimes all rest on the “evolving standards of decency” rationale. So, too, do decisions that strictly limit the imposition of life without parole on juvenile offenders. Kennedy favored this test, which may be why he voted to block Missouri from executing Russell Bucklew in 2018. Now Justice Brett Kavanaugh has replaced Kennedy, and on Monday, he provided the fifth vote to let Missouri kill Bucklew—and tacitly repudiate his predecessor’s Eighth Amendment jurisprudence.
Criminal justice reformers must now wait for the other shoe to drop, to see how far Kavanaugh is willing to veer to the right. If the court pursues Gorsuch’s originalist path, then it must overturn Kennedy’s juvenile justice decisions and permit juvenile life without parole once again. It may do so as early as next year. The court could also allow the execution of minors, mentally disabled people, and those who committed crimes other than murder. So long as a state does not “superadd pain,” it can apparently get away with anything, even barbarous executions that don’t intentionally inflict unnecessary suffering. Welcome to our post-Kennedy death penalty jurisprudence, where legalized torture is back on the table.