Cruel and Unusual

Cruel and Unusual.

At 3am Friday, April 12, the Supreme Court of the United States contributed to our national voyage towards injustice and perhaps even totalitarianism.

The court ruled that a prisoner who chose to die by nitrogen hypoxia, more or less proven to be painless, was trying to delay his execution because he had not chosen this methodology in a timely fashion.  The court ruled 5-4 along predictable lines, that the inmate, granted, a brutal murderer, did not, within the time limits imposed by the state, and therefore for procedural reasons, would have had to wait for a new death warrant to be signed.  So, the court vacated the stay of execution of the lower court so that there would be no further delay in putting him to death.   As though he would not be available for such purpose 30 days later.

The court did not even allow for Justice Bryers’s request to wait for a court conference the following morning in order to discuss the issue.  The stay was vacated at 3am.

Recently, I visited London.  A very knowledgeable guide told me and my grandsons how the English executed people in the 15^th century as we traversed the innards of a venerable Westminster Abbey.   First, they hanged them until almost dead.   Then, they disemboweled them, burning their intestines in front of them, whilst they attached their limbs to four horses to draw and quarter them.  Now, that is a real deterrent for stealing or treason or murder.  My youngest grandson 11, his eyes wide open dropped his jaw.  He will remember that tour, surely.

Now the Supreme Court of the United States is debating the efficacy of lethal injection or nitrogen hypoxia as the lesser of what constitutes “cruel and unusual punishment,” as a definition of what the Constitution proscribes.   In fact, the practices as described in the previous paragraph is what prompted that prohibitory language in our constitution.

Arguably, the guillotine is a more humane form of punishment than the painful three-drug cocktail as utilized in the progressive state of Alabama, which only 70 years ago, preferred lynching as a methodology for enforcing its cultural ethos. 

More crucially, capital punishment itself should be reexamined under the “evolving standards of decency” criteria as set forth by Chief Justice Earl Warren in Trop v. Dulles (1958), a case that articulated what punishment the courts may impose upon a defendant.

In Furman v. Georgia (1972) capital punishment was constituted as cruel and unusual in and of itself, leading to a 4-year moratorium on the medieval practice, until regressive state legislatures struggled to overcome the shortcomings of the system and Gregg v. Georgia (1976) effectively reinstated it by addressing the shortcomings of the system in Furman.   Space does not here allow an extensive discussion here, but the reader is invited, if interested, to read the history of this sordid abuse of state power.

In his dissent in Dunn v. Alabama (2019) Justice Breyer, clearly upset, argued the priorities of the court as being skewed.  And it is indubitable that capital punishment has no place in the pantheon of criminal justice in the 21^st century.   The idea that the state takes a life and that the highest court in the land, decides life or death based upon a procedural technicality, ludicrous in itself, strikes at the heart of our democracy.  The murderer dies, the victim is not restored to life, the vengeful family gains nothing, deterrence is not effectuated, and the poor suffer the penalty disproportionately.  More importantly, our societal humanity suffers a damaging blow.

The very idea that the Supreme Court of the United States occupies its time deliberating the timeliness of death appeals while scrutinizing the finality of execution and whether the condemned should die by hanging, firing squad, three-drug cocktail, nitrogen gas and the uncertainty of pain inflicted by the methodology in the context of the Constitution as it should be 2019, appeals only to the ghoulish instincts of people like Brett Kavanaugh, Neil Gorsuch, and even Clarence Thomas,  all products of a crypto-masochistic society that refuses to change the interpretation of an 18^th century document.  Chief Justice Roberts, who has recently shown some reason has joined in this charade, to his discredit.

Totalitarian states traditionally employ capital punishment as a method for keeping dissent under control as well as for apostacy, stealing bread, homosexuality, and other crimes not really eligible in the US for this most extreme of penalties.  Other methods include torture, and in the case recently of Saudi Arabia, dismemberment by bone saw. This was clearly an act of state murder, and hard to distinguish from what is still happening in our country, differing only in pretext.  As Justice Blackmun wrote in 1994, that he would “no longer tinker with the machinery of death,” so should the present Supreme Court no longer do so.

We sit with Saudi Arabia, China, Pakistan, and other totalitarian states in our employment of this barbarity, which is still applied unfairly against racial minorities, and the poor.