The Supreme Court, its conservative majority in place for years, no longer debates whether state-imposed death is morally right or constitutionally valid. Justice Brett Kavanaugh’s confirmation last month all but guarantees this will remain true for another generation, despite Justice Stephen Breyer’s best efforts. Since the court doesn’t weigh the substance of the death penalty, it instead focuses on the aesthetics of the system it oversees.
These aesthetics are vital to maintaining public support for the system. American capital punishment is ritualized, with a carefully orchestrated set of appeals that often culminates in a last-minute denial from the Supreme Court. It’s also theatrical: Executions are choreographed to produce a quiet spectacle for an audience of witnesses, who then convey what they see to the wider world. Justice Harry Blackmun, concluding in 1994 that the system no longer met constitutional standards, described it as “the machinery of death.”
The court’s docket this term shows how much that machinery has deteriorated since then, and raises questions about how long the justices can uphold capital punishment while Americans increasingly lose faith in it.
The court first heard oral arguments on Tuesday in Bucklew v. Precythe, an unusual lethal-injection case. A Missouri jury sentenced Russell Bucklew to death in 1998 for murdering a man he found with his ex-girlfriend, whom Bucklew then kidnapped and raped. Bucklew does not challenge the validity of his sentence or any of the procedural aspects surrounding it. Instead, he’s challenging the manner in which Missouri seeks to end his life.
Bucklew suffers from a gruesome condition known as cavernous hemangioma, which creates malformations in some of the body’s blood vessels. Over time, those malformations swell and fill with blood until they form benign tumors. The rare condition can manifest anywhere on the body. Bucklew’s case is even more unusual because it primarily affects his mouth and throat. His uvula is covered in blood-filled tumors that make it harder to eat, breathe, and sleep. There is no cure for the condition, and it will progressively worsen for as long as he lives.
Missouri plans to execute him using the sedative pentobarbital. Bucklew contends that his medical condition raises the likelihood that the lethal injection will go awry. In his brief for the court, his lawyers warned that “the violence of his choking as he slips into unconsciousness will likely cause his tumors to rupture and lead him to aspirate his own blood.” To prevent this, Bucklew asks to be put to death by lethal gas, specifically by asphyxiating him with nitrogen.
State officials oppose Bucklew’s request on both substantive and procedural grounds. Neither Missouri nor any other state has performed a nitrogen asphyxiation, the state argues, so it does not count as a “known and available” procedure under the Supreme Court’s precedents. Bucklew argues that all he has to do under those precedents is demonstrate that alternative methods exist. “How a state implements those other options ... are ultimately up to the state,” he told the court. “An inmate need not specify every last step the state should take along the path to killing him.”
Since the 2008 case Baze v. Rees, the court has favored a state’s desire to perform executions over concerns that its methods may be cruel and unusual. “We begin with the principle ... that capital punishment is constitutional,” Chief Justice John Roberts wrote for the plurality. “It necessarily follows that there must be a means of carrying it out.” That logic isn’t airtight, to say the least. But it’s the law of the land. The court’s conservative justices took it even further in Glossip v. Gross in 2015. In a 5-4 decision, they gave Oklahoma the green light after the state botched two executions, and set a high legal threshold for future challenges to execution methods.
On Tuesday, court-watchers noted a potential change in tone from Roberts, and tough questioning of Missouri’s lawyer by Kavanaugh. “Chief Justice John Roberts asked serious, carefully considered questions about particular execution procedures, the court’s precedents, and the ramifications of those precedents,” Chris Geidner, BuzzFeed News’ legal editor, reported on Twitter.
At one point Roberts said something along the lines of "if the death penalty is constitutional, as it now is ..."
I never would have expected those words to come out of the Chief's mouth until they did. (And I know I wasn't alone in the press corps to note that phrasing.)
Kavanaugh asked Missouri's lawyer whether the state could still go forward w an execution under Baze/Glossip "even if" it would cause "gruesome, brutal pain."
Lawyer talked around it.
Kavanaugh: Is that a yes?
Lawyer: Yes.
While Bucklew is challenging how he will leave death row, Curtis Flowers is challenging how he arrived there. His case, Flowers v. Mississippi, has a gobsmacking procedural history even by the standards of death penalty prosecutions. Local prosecutors have put him on trial six times to convict him for the murders of four people at a furniture store in Winona, Mississippi, in 1996. The first three trials led to convictions but were overturned on appeal because local district attorney Doug Evans had gone to extraordinary lengths to keep black Mississippians off the jury. Jurors failed to reach a unanimous verdict during his fourth and fifth trials. The sixth trial saw Flowers, who is black, convicted of all four murders.
Flowers argues that prosecutors also relied on racially discriminatory practices during his sixth trial. Evans allowed a single black juror and a single black alternate juror during the jury selection process, and struck the rest. This tactic mirrored Evans’s past efforts to craft disproportionately white juries; the Mississippi Supreme Court even admonished him after Flowers’s third trial for demonstrating “as strong a prima facie case of racial discrimination as [it had] ever seen.” This time, however, the court upheld Flowers’s death sentence in a sharply divided decision.
Four justices on the Mississippi Supreme Court dissented from the court’s ruling, including Justice Leslie King. Although 42 percent of the panel of prospective jurors were African Americans, he noted, “the jury that convicted and sentenced Flowers consisted of eight percent African Americans.” King also pointed out that Evans asked black prospective jurors three times as many questions as their white counterparts, and that his questions for white jurors were perfunctory re-phrasings of those already asked by the trial judge. “Because of that failure, I cannot conclude that Flowers received a fair trial, nor can I conclude that prospective jurors were not subjected to impermissible discrimination,” King wrote.
When it took Flowers’s case last Friday, the U.S. Supreme Court agreed to consider whether the Mississippi Supreme Court properly applied precedents that forbid racial discrimination in jury selection. But there are also serious doubts that Flowers is guilty of the crime for which he has been repeatedly prosecuted. Local civil-rights groups, including the Magnolia Bar Association and the Innocence Project New Orleans, told the Supreme Court that Flowers’s case was “built on faulty eyewitnesses, improper forensics, and false confessions from untruthful informants.” They noted that Evans, the prosecutor who sought to craft all-white juries to convict Flowers, had attended meetings organized by the Council of Conservative Citizens, a white supremacist group that opposes “all efforts to mix the races of mankind.” Though the justices will not be technically considering whether Flowers is innocent or guilty, this background may make them more receptive to his case’s procedural flaws.
Bucklew and Flowers’s cases ultimately are about whether, and how, their lives will be ended by the government. But they also raise deeper issues with the death penalty. Is it administered in a needlessly cruel way when it risks forcing a man to drown in his own blood? Is it handed out by a local criminal justice system that appears inextricably driven by racism? The justices will have to wrestle with the age-old challenge of maintaining public confidence in American capital punishment. What they may ultimately find is that the system does not deserve it.
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