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April 2, 2019

Unsurprisingly divided reactions to Supreme Court's latest divided ruling on lethal injection methods

The Supreme Court yesterday split 5-4 in favor of the state of Missouri in yesterday's execution protocol case, Bucklew v. Precythe, No. 17-8151 (S. Ct. April 1, 2019) (available here, basics here).  Capital cases have a way of not only revealing deep splits among the Justices, but also revealing how differently commentators for and against the death penalty view the Court's work.  Unsurprisingly, supporters of the death penalty have notable praise for the Court's work in Bucklew (with modest titles for their commentary):

From Paul Cassell, "The Supreme Court Recognizes Victims' Rights in Death Penalty Cases"

From Kent Scheidegger, "The Opinion of the Court in the Bucklew Case"

In contrast, opponents of the death penalty have notable criticism of the Court's work in Bucklew (with more extreme titles for their commentary):

From Scott Lemieux, "The Supreme Court ruled that 'cruel and unusual punishment' no longer preclude unusually cruel punishments"

From Ian Millhiser,"Gorsuch just handed down the most bloodthirsty and cruel death penalty opinion of the modern era"

From Elie Mystal, "Supreme Court Draws, Quarters The Eighth Amendment"

From Mark Joseph Sterm, "The Supreme Court’s Conservatives Just Legalized Torture"

I understand why abolitionists are troubled by Bucklew because it reveals that there are now five Justices who are eager to prevent lower court judges from heavily supervising and persistently tinkering with how state wish to operate their machineries of death.  But, practically speaking, it remains to be seen if Bucklew proves to be a big deal.  Impressively, despite the fact that the Supreme Court has never found any method of execution unconstitutional, and despite seemingly "big" wins for states in both Baze and Glossip, energized and effective defense counsel have kept litigating hard and kept succeeding in gets lots and lots of scheduled executions halted (Ohio provided the latest example of this on-the-ground reality this year).

Though I am always sympathetic to commentary that urges the Supreme Court to give more force to the Eighth Amendment's limit on punishment, I sincerely wish folks so troubled by Bucklew would spend a bit more time focused on all-too-common extreme prison sentences over ever-rarer death sentences and executions.  A few weeks ago, as noted in this post, the Supreme Court denied cert in an Eighth Amendment case involving a federal sentence of over 150 years for a first offender lured into a drug deal by government agents. The entire First Circuit issued a remarkable opinion urging the Justices to take up the case, but not a single Justice was even move to say a work about a seemingly toothless Eighth Amendment jurisprudence in an era of mass incarceration.  As I noted in my prior post, the legal press and criminal justice commentators have entirely ignored this case, confirming my fears that one needs to be a murderer on death row to have your case garner attention.  Sigh.

UPDATE: John Stinneford, whose article The Original Meaning of 'Unusual': The Eighth Amendment as a Bar to Cruel Innovation was cited in the Court's opinion, has this lengthy discussion of the ruling at The Volokh Conspiracy under the heading "What Bucklew Doesn’t Say." Here is a small snippet:

The majority opinion is explicitly originalist in its approach to the Cruel and Unusual Punishments Clause, a rare (if not unprecedented) phenomenon in the modern history of the Court.  But in contrast to some prior originalist concurrences or dissents by Justices Scalia and Thomas, the Bucklew Court does not rush to make any comprehensive claims about the original meaning of the Clause.  Rather, it skirts around the edges of the Clause's original meaning, deciding only enough about that meaning to demonstrate (to its own satisfaction, anyway) that Missouri's lethal injection protocol is constitutional.  In this regard, Bucklew is an admirably modest opinion.

April 2, 2019 at 10:51 AM | Permalink


Doug - the eighth amendment is originalist now. The justices knew what bucklew was gonna say when denying cert on the stashhouse case. Bucklew is an important case to be up in arms about, not because of the narrow issue presented as much as because of gorsuchs well crafted opinion was tailored to overrule trop v Dulles sub silentio

Posted by: Calif appeals lawyer | Apr 2, 2019 12:41:58 PM

What does originalism have to say about LWOP for non-violent offenses or acquitted conduct enhancements or sex offender registries in your view? Lengthy prison punishments were relatively unusual in 1789 and punishments based on acquitted conduct and creation of registries entirely unknown.

I fear there are not really 5 serious votes for an always originalist and robust 8th Amendment as a check on state power, but if there is I hope they get rid of all modern punishment practices that would look cruel and unusual circa 1789. Just as an originalist turn has proved helpful to defendants in the Sixth Amendment setting, it could be a great improvement for Eighth Amendment jurisprudence if it led to a serious commitment to scrutinizing what legislatures and judges do. I am not holding my breath, but the main point is that only a couple hundred people on death row + the 50 or so folks sentenced to death each year are likely to do worse if the Eighth Amendment takes an originalist turn. Meanwhile many millions imprisoned and on registries and many millions more sentenced each year might have a (slim) chance to do a little better.

Posted by: Doug B. | Apr 2, 2019 3:10:51 PM

Doug, you're right in your concern. However, until people like you finally accept that until the death penalty is finally taken off the table and abolished, progress on these other issues is unlikely to be effectively addressed. A death penalty sentence IS different. You need to be unequivocal in your support for abolition. Not to do so is just counter-productive to your wishes/aims for other aspects of the justice/sentencing system.

Posted by: peter | Apr 2, 2019 3:34:21 PM

peter, you are right that a death penalty sentence IS different. Different in that only a very, very, very small percentage of people are subject to it, those people are all ultimately convicted of an aggravated form of murder, they get all sorts of super due process before and after being subject to a death sentence, and they get an extraordinary amount of attention from all sorts of advocates, lawyers and others. I sincerely wish any and everyone facing years of imprisonment benefited from this kind of difference.

Meanwhile, we have in recent years seen LOTS of progress on other issues, often aided by originalist jurists and pro-death penalty folks (e.g., Justices Scalia/Thomas in Blakely/Booker, the Right on Crime folks, Prez Trump). Many of the states adopting/pursuing non-capital reforms are death penalty states (see, e.g., Texas, Oklahoma, Georgia, Kentucky, Mississippi), and I have seen little evidence that states that get rid of the death penalty thereafter have a greatly improved CJ reform record (if you can point me to such evidence, peter, I would be grateful). Indeed, in California, it seems there is sometimes an inverse relationship here: voters in California keep voting to retain the DP, but also keep voting to soften other penalties; the New CA Gov imposes a capital moratorium, but then gets tougher on parole for others.

I am agnostic regarding the death penalty in part because I have long seen and long feared that abolitionism plays a problematic role in fueling mass incarceration. Abolitionists gave us the modern LWOP sentence and a heck of a lot more NON-VIOLENT people are going to die prison because of the LWOP sentence than will ever be executed for murder in US. That said, abolitionists helped create the Roper/Graham/Miller line of cases, and I would like to get to a day in which all of the energy and litigation and websites devoted the the abolitionist cause might be effectively redirected toward fighting excessive prison terms. So I am not rooting against abolitionist. But I am always going to highlight that those most concerned about the death penalty and those most concerned about mass incarceration and other forms of extreme punitiveness are not always going to, nor should they, look at various constitutional and policy issues in exactly the same way.

Posted by: Doug B | Apr 2, 2019 4:38:41 PM

Not sure that Bucklew overrules Trop, but it does refine the "evolving sense of decency" in a more originalist vein. To paraphrase where I think the Bucklew majority is, there are two parts to the Cruel and Unusual Punishment Clause -- both of which implicate the evolving sense of decency in a different way.

The unusual part is the easier of the two to see where the evolving sense of decency might be relevant. If there is an overwhelming trend against a practice, what was "usual" might become "unusual." But, under the original understanding of the Eight Amendment, it would be very rare for the Supreme Court to find that a common practice is actually unusual. (Probably a bad sign for those who want to expand Roper, Graham, and Miller.)

The cruel part is the focus on Bucklew. And, here, the evolving sense of decency involves a comparison between the challenged punishment and the alternatives. Is there a consensus that the challenged punishment "super adds" unnecessary pain or unnecessarily stigmatize a defendant beyond what is needed to accomplish the legitimate punitive objectives. As Bucklew (and Baze and Glossip) holds, it is only possible to evaluate one punishment (typically an older punishment) in comparison to what would replace it.

In short, there is still room for an evolving sense of decency in this originalist world, but the evolving sense of decency is now merely one evidentiary factor rather than the driving end conclusion.

Posted by: tmm | Apr 3, 2019 10:40:39 AM

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