Despite President Donald Trump’s enthusiastic support for capital punishment and recent referenda in Nebraska and California in which voters in those states decided to retain it, the death penalty is on the decline in the United States: the number of death sentences and executions have fallen to record lows and public support for capital punishment is dropping.
Editor’s note: Austin Sarat is Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College and the author of “Gruesome Spectacles: Botched Executions and America’s Death Penalty.” The views expressed here are solely his.
But the US death penalty dilemma remains: we want to kill but to do so in a humane manner; we want to do justice to the victims of horrendous crimes but respect the dignity of the condemned. As the United States traverses the road to abolition, which other Western nations have previously taken, Americans will continue to see compelling illustrations of the horrifying illogic of state killing. On Tuesday, the Supreme Court gave us one such lesson.
It did so when it refused to hear an appeal brought by Thomas Arthur, an inmate on Alabama’s death row. The Court let stand the decision of the 11th Circuit Court of Appeals that Arthur had not satisfied the legal standards for challenging a method of execution.
Arthur sought to challenge Alabama’s lethal-injection protocol. Its use of the sedative Midazolam would, he claimed, cause him intolerable and needless agony. Similar concerns have been heard around the country as state after state has encountered problems with lethal injection, which once was thought to be the gold standard among methods of execution.
The Supreme Court has rarely addressed the legality of particular methods of execution. And, when it has done so, it has never found one to be deficient. The firing squad, the electric chair, and, most recently, lethal injection all have passed constitutional muster.
Indeed, the Court has made it increasingly difficult for inmates seeking to challenge any particular method. Last year it reaffirmed a 2008 decision that an inmate seeking to raise questions about the constitutionality of a method of execution must do two things. First, he must prove that the state’s chosen method risks causing severe pain, and second, he must also propose a “known and available” alternative method for his own execution.
Arthur preferred death by firing squad to lethal injection. Death by firing squad is legal in two states, Oklahoma and Utah, and seems likely soon to be added to the approved methods of execution in Mississippi.
Nonetheless, the Court ruled against him because Arthur’s alternative was not “available” under Alabama state law. As the district court, which first heard his case, noted, “execution by firing squad is not permitted by statute and, therefore, is not a method of execution that could be considered either feasible or readily implemented by Alabama at this time.”
Multiple ironies abound in this case. It surely is a kind of Kafkaesque cruelty that a condemned inmate can only successfully challenge a method of execution if he can identify a better one. A method of execution either is or is not cruel. It should not become constitutionally acceptable just because the condemned cannot point to a better alternative.
And the irony is only deepened when, having succeeded in that task, his challenge fails because the government of the state in which he lives refuses to adopt his “preferred” method.
Arthur is not the first death row inmate to opt for the firing squad. In 1977, Gary Gilmore, who gained international notoriety when he demanded the implementation of the death sentence handed down after he committed two murders, chose that method over hanging. Nineteen years later, John Albert Taylor wanted to be executed by the firing squad “to make a statement that Utah was sanctioning murder” and because he did not want to “flop around like a dying fish” during a lethal injection. In 2010, Ronnie Lee Gardner told a Utah court: “I would like the firing squad, please.” “I like the firing squad,” Gardner said. “It’s so much easier … and there’s no mistakes.”
Even some death penalty opponents have said that they would make the choice that Gilmore, Taylor, and Gardner made and that Arthur wanted to make.
Yet the firing squad has a checkered past. In 1878, in one of the few challenges to a method of execution heard by the US Supreme Court, Wallace Wilkerson claimed that it violated the Eighth Amendment’s ban on cruel and unusual punishment. Wilkerson lost his appeal.
His execution was subsequently botched because the marksmen missed his heart.
Utah, the state with the greatest attachment to this method of execution, gave it up in 2004 (although only temporarily) because it evoked images of raw, frontier justice. In a society awash in gun violence, the firing squad seemed to mimic something that the law wished to discourage.
Dissenting in Tuesday’s case, Justice Sonia Sotomayor noted that the Court’s decision effectively allows a state, simply by refusing to include any alternative in its death penalty protocol, to avoid a challenge to its execution method, “no matter how cruel or how unusual” that method might be. In this observation, Sotomayor captured one of the ironies in America’s continuing use of capital punishment, but her critique did not go far enough.
The Constitution requires that when the government punishes, it must do so in a way that is not cruel and unusual. The burden of avoiding cruelty should rightly be placed on the government, not on the person being punished. It is time for those seeking to use the death penalty to bear that burden. If they cannot, execution should stop.
Until they do so, Americans regularly will be caught between the constitutional imperative to minimize the pain of execution and a state government’s unwillingness to honor that imperative. Yesterday’s Supreme Court decision is yet another reminder that, as Justice Harry Blackmun put it, in his 1994 dissent in Callins v. Collins, we should “no longer tinker with the machinery of death.”