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On death penalty, Supreme Court veering badly off course

Across the United States, the death penalty has been in steep decline. Last year, just 25 individuals were executed, and it’s been hovering below 30 for four years now — a far cry from just 20 years ago when it was more than three times that number. And it’s not just a slow-moving death row. The Death Penalty Information Center reports that just 40 people were sentenced to death in the U.S. in 2018 while in 1996, it was nearly eight times as many.

Given that fundamental shift in public sensibilities — this recognition that capital punishment is not only inherently barbaric but patently racist and arbitrary, and given the choice by those states that have not yet abandoned the death penalty to use it so rarely — the recent decision by the U.S. Supreme Court to allow Missouri to move forward with an execution through a method likely to prove especially painful and harsh seems grossly out of step with where civil society stands right now. To describe the decision as “cruel and unusual” is surely no stretch. And the blunt language used by Justice Neil Gorsuch to justify it was chilling.

The case in question involves a Missouri murderer named Russell Bucklew, a 50-year-old who suffers from a rare medical condition, cavernous hemangioma, that causes him to grow numerous blood-filled tumors that doctors say are likely to burst with a lethal injection of pentobarbital, causing him to choke and suffocate on his own blood, which is far from the merciful death expected from what is supposed to be the most humane of death penalty methods. Lawyers representing him had asked the court to order Missouri to use a gas chamber to reduce his risk of pain. On a 5-4 vote, the nation’s highest court decided that this mercy was not necessary.

“The Eighth Amendment does not guarantee a prisoner a painless death," wrote Justice Neil Gorsuch for the majority in the death row appeal, apparently seeing a big distinction between pain and cruelty, which is absolutely forbidden by the amendment.

This might seem an anomaly, but it isn’t the first time the conservative majority has acted callously toward a death row inmate. In February, the same court in Dunn v. Ray ruled that Alabama did not have to permit Muslim inmate Domineque Ray to have an imam present at his execution despite the standard practice of having clergy to be present (which in Alabama apparently applies to Christians exclusively as officials offered a Christian chaplain but no one else). The justification? That Mr. Dunn had asked for his religious leader at the “last-minute.” The execution went forward, although curiously a Buddhist inmate’s execution in Texas was blocked by the Supreme Court just last week because Texas prison officials refused to allow Patrick Murphy’s spiritual adviser to be present. The difference? Justice Brett Kavanaugh apparently changed his mind on how the Constitution protects religious freedom.

Whether or not imams will soon be given the respect afforded priests, it’s clear that a Supreme Court with Justices Gorsuch and Kavanaugh is pro-death penalty, Mr. Gorsuch, in particular, having poo-pooed last-minute stays of executions, writing in Bucklew v. Precythe that “last-minute stays should be the extreme exception, not the norm.” Apparently, the procedural inconvenience is too much, or as Justice Sonia Sotomayor wrote in an eviscerating response, the defendant should have figured out in advance that an imam would not be allowed even though the prison system was unwilling to share with him a copy of its practices and procedures and the appeal was filed within days of learning that an imam was not allowed.

Clearly, it is too much to expect the high court’s Gorsuch-led majority to recognize the inherent cruelty of the death penalty, particularly when they can’t be bothered to require one state to come up with a less savage way to kill one prisoner. As we have observed on this page many times before, the death penalty does not deter crime. Most Americans recognize it isn’t administered fairly. It’s a shameful relic of the nation’s past that has been abolished or placed under a moratorium in the vast majority of countries (170 by the United Nations’ latest tally). The Supreme Court’s shameful rulings are a reminder that moving the U.S. toward a more civil and rational approach to punishing the worst criminal offenders rests mostly in the hands of people like California Gov. Gavin Newsom, who last month signed an executive order placing a moratorium on that state’s death penalty on the grounds that for him to sign someone’s death warrant was wrong, just flat-out wrong.

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