The Moral Failure of the Justices’ Death Penalty Debate

(Bloomberg Opinion) -- In a 5-4 decision Monday, the U.S. Supreme Court refused to block the execution of a Missouri man who says the lethal injection may cause him excruciating pain because of a medical condition. The legal commentators have been out in force since, explaining the politics of the justices’ disagreement and the ever-changing technical aspects of death penalty jurisprudence.

That analysis is useful, but it’s also beside the point. What’s really at stake is whether and how the Supreme Court should engage with what the late Justice Harry Blackmun memorably called “the machinery of death.”

On that question the verdict of history will be clear: All nine justices have gotten it terribly wrong. And so has the Supreme Court itself.

The reason is not legal, but moral.

It’s morally repugnant for the justices to stage clinical-sounding debates on whether specific methods of execution are constitutional, balancing firing squads against injections, gas chambers and electrocution — all against the historical backdrop of hanging.

These debates, conducted in the bloodless language of legalese, move us away from the reality that the state is killing one human being as punishment for the killing of another. They put the justices in the position of justifying execution itself, but doing so obliquely rather than directly.

Instead of directly debating the constitutionality of capital punishment, both sides of the court engage in excesses of graphic description. Both sides presumably intend to influence the reader. The effect, however, is to make the justices look like they are using victims and murderers as means to a debate, rather than ends in themselves.

The court could reasonably strike down capital punishment, as it did for a time 50 years ago. Or it could stand aside like Pontius Pilate, wash its hands of the dirty business of execution, and let the states choose their own methods without oversight.

Either option, even the distasteful latter one, would be morally superior to the court’s practice of turning cases about methods of executing real people for real crimes into proxy wars fought on the field of graphic language and repugnant rhetoric.

The lead opinions in Bucklew v. Precythe powerfully demonstrate this moral error.

The majority opinion, by Justice Neil Gorsuch, starts with a detailed description of the horrific crimes for which Russell Bucklew was sentenced to death. Suffice it to say that the crimes included murder and rape. If you need the details, you can read the opinion.

When I was a law clerk at the Supreme Court some 20 years ago, the internal memos written by more conservative law clerks often dwelt in detail on the horror of the crimes committed, while those written by more liberal clerks tended to state the nature of the crimes more compactly.

Gorsuch was a clerk in that same era, and he uses that conservative technique in his opinion published Monday. When the court decides other kinds of criminal cases, it typically doesn’t dwell in so much detail on the crime itself.

Presumably, the purpose of detailing horrific crimes is to give readers the sense that the criminal really deserves death. Simultaneously, the narrative makes the reader less sympathetic to the person about to be executed. Someone who committed acts like this, it would seem, must not be a person but a monster.

The rhetorical aim is ultimately to emphasize the legitimacy of the death penalty itself. Gorsuch, a skilled writer, wants to distract us from the horror of the methods-of-execution discussion that follows.

This isn’t a critique only of the conservatives. In his dissent, Justice Stephen Breyer described in still greater detail the condition of cavernous hemangioma, the blood vessel tumors from which Bucklew suffers. Breyer cited the details of expert testimony by a doctor who said Bucklew is highly likely to suffer great pain as well as “visible hemorrhaging” of his tumors if killed by lethal injection.

If you asked Breyer why he included the detail, he would no doubt say that in order to make a claim of cruel and unusual punishment under the Eighth Amendment, he needed to explain the facts supporting his judgment that the method of execution would exceed “the limits of civilized standards.” Those limits, it would seem, are defined in part by the revulsion Breyer feels in contemplating the consequences of the execution.

Rhetorically, Breyer is trying to produce the same sense of revulsion in the reader.

This is all wrong — on both sides.

And that’s even before the court gets into the technical question of whether the Eighth Amendment is violated only when pain or humiliation is “superadded” to an existing mode of execution. That debate takes the court into the territory of burning at the stake, crucifixion and breaking on the wheel.

There’s also a discussion of the validity and relevance of a study on horses injected with pentobarbital. You can’t make this stuff up — nor would you want to.

Historians of the future are going to look at this opinion and try to understand how the justices got themselves into this literal horror show of killing techniques.

The answer will be that the justices can’t face up to the fact that they sit in supervision of death machinery.

The court’s liberals who believe the death penalty is unconstitutional should say so — and repeat that point for each case that arises.

The court’s conservatives should openly say that it’s up to the states to execute however they choose and that as justices they are either enthusiastic or at least prepared to let that happen.

Then history can choose which side in that underlying debate is correct. I think it’s pretty obvious which one it is, but I fully acknowledge I could be wrong.

Regardless, the justices would then be able to avoid the morally troubling approach they are taking now.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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