‘Welcome to our post-Kennedy death penalty jurisprudence’

Monday’s death sentence decision was a real doozy. Neil Gorsuch, writing for the majority, suggests that if the petitioner wanted a less painful method of execution, he should come up with one. Kavanaugh, taking a Sotomayor remark out of deliberate context, possibly to mock her, wonders if she doesn’t have a point about using firing squads:

In other words, an inmate who contends that a particular method of execution is very likely to cause him severe pain should ordinarily be able to plead some alternative method of execution that would significantly reduce the risk of severe pain. At oral argument in this Court, the State suggested that the firing squad would be such an available alternative, if adequately pleaded. Tr. of Oral Arg. 63–64 (“He can plead firing squad. . . . Of course, if he had . . . pleaded firing squad, it’s possible that Missouri could have executed him by firing squad”). JUSTICE SOTOMAYOR has likewise explained that the firing squad is an alternative method of execution that generally causes an immediate and certain death, with close to zero risk of a botched execution. See Arthur, 580 U. S., at ___–___ (slip op., at 17–18). I do not here prejudge the question whether the firing squad, or any other alternative method of execution, would be a feasible and readily implemented alternative for every State. See McGehee v. Hutchinson, 854 F. 3d 488, 493–494 (CA8 2017). Rather, I simply emphasize the Court’s statement that “we see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative.”

In the meantime, few methods of execution would “superadd” enough pain to meet the constitutional prohibition against cruel and unusual punishment. Thus, with a couple of swift strokes, Gorsuch inserts Clarence Thomas’ barbarous Eighth Amendment jurisprudence.

Slate‘s Mark Joseph Stern is horrified:

Criminal justice reformers must now wait for the other shoe to drop, to see how far Kavanaugh is willing to veer to the right. If the court pursues Gorsuch’s originalist path, then it must overturn Kennedy’s juvenile justice decisions and permit juvenile life without parole once again. It may do so as early as next year. The court could also allow the execution of minors, mentally disabled people, and those who committed crimes other than murder. So long as a state does not “superadd pain,” it can apparently get away with anything, even barbarous executions that don’t intentionally inflict unnecessary suffering. Welcome to our post-Kennedy death penalty jurisprudence, where legalized torture is back on the table.

I’m afraid this won’t go far enough. No matter how eloquently one differentiates justice from vengeance, our culture has had too many Death Wish and Dirty Harry cells floating through its corpuscles to care. To tell the families of victims who were sexually assaulted and murdered that the law must disregard eye-for-an-eye as a principal is to be regarded as a moral ninny. Gorsuch made clear a Death Row inmate has fewer rights he is willing to consider than the righteous blood lust of families that no creed can assuage. I don’t blame the families. I recoil from the conservatism that regards malice and sadism as lodestars.

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