The death penalty in America is grotesque, even if you agree that it is fit for the state to execute someone.
I'm not, for the moment, talking about a system that offers only a feeble semblance of due process. I'm not talking about the fact that innocent people are sentenced to death and even executed. I'm not talking about how race drives the death penalty.
I'm talking about how we've tried to make execution look like a sanitary medical procedure, and how litigation over the death penalty is dominated by arguments about how close we've gotten.
But execution isn't a medical procedure, and it's perverse that — ostensibly in the name of avoiding cruelty — we've dressed it in the garb of one. An execution is the state deliberately killing someone. You might decide it's necessary or justified, but unless you're a monster you'll never find it pleasant or soothing or peaceful. Suggestions that we return to a firing squad or some similar bloody method are met with outrage, but a firing squad has this virtue — it does not pretend to be anything but what it is, and does not lead us into tinkering with how the state taking a man's life might better resemble taking his tonsils out. The firing squad is only brutal and inhuman in the way that execution is inherently brutal and inhuman.
It's against that backdrop that Buzzfeed wrote about Supreme Court nominee Neil Gorsuch. Buzzfeed's headline blares: Trump’s Supreme Court Pick Determined That A Badly Botched Execution Was An ‘Innocent Misadventure.’ The meat of it:
Just a few months ago, Gorsuch — now President Trump’s nominee for the Supreme Court — ruled against the estate of a man who was executed in one of the worst botched lethal injections in US history. Gorsuch and two other judges ruled that it was an “innocent misadventure” or an “isolated mishap,” but not cruel and unusual punishment.
This was, at best, carelessly misleading.
The decision in Lockett v. Fallin, the case Buzzfeed is talking about, is here. The facts of Lockett's execution resemble something out of a horror movie, or perhaps a shrill angry farce decrying the death penalty.
"The documents paint a picture of chaos in the execution chamber," said Cary Aspinwall of the Tulsa World who is reviewing the documents.
"The execution team didn't have the size needles they needed, they couldn't find veins that would work and the drugs didn't start taking effect when they thought they would," Aspinwall said.
The question before the Tenth Circuit panel — including Judge Gorsuch — was whether the trial court correctly dismissed Lockett's estate's lawsuit claiming Eighth Amendment violations. Lockett's heirs argued, among other things, that the execution constituted cruel and unusual punishment. In an opinion by Judge Gregory Phillips (an Obama appointee, for what it's worth), the Tenth Circuit concluded that the trial court was right to dismiss the case because the complaint did not state facts supporting an Eighth Amendment claim. The Supreme Court has held that because capital punishment is constitutional, there must be constitutional ways to carry it out, and that some pain is inherent in execution. The Supreme Court has also held that accidents in execution do not automatically render them unconstitutional. In doing so, the Court — quoting long-dead justices with equally bad taste in nomenclature — said that an "innocent misadventure" or "isolated mishap" is not an Eighth Amendment violation. The Tenth Circuit applied that language to Lockett's case:
Everyone acknowledges that Lockett suffered during his execution. But that alone does not make out an Eighth Amendment claim. Here, the Amended Complaint describes exactly the sort of “innocent misadventure” or “isolated mishap” that the Baze plurality excuses from the definition of cruel and unusual punishment. Id. Thus, Lockett’s suffering did not run afoul of the Eighth Amendment. While Lockett’s Estate takes issue with the three-drug protocol and the midazolam amount used in Lockett’s execution, everyone agrees9 that Lockett’s suffering arose from IV infiltration: the drugs leaked into the surrounding tissue rather than into his bloodstream, keeping Lockett from receiving full doses of the drugs.
Put another way, the state did not choose a method to cause unnecessary pain, it bungled the method it chose and caused pain.
Judge Gorsuch joined in the court's decision without a separate opinion. Judge Nancy Moritz — another Obama appointee — concurred in a separate opinion.
Buzzfeed's take on this is very misleading. One short paragraph in the middle might lead a careful reader familiar with appellate procedure to realize that Gorsuch and his colleagues did not coin the terms "isolated mishap" or "innocent misadventure," but the headline and thrust of the article are calculated to imply falsely that Gorsuch chose those terms to characterize the botched execution. It is inevitable that's the way Buzzfeed's headline will be read and distributed through its viral channels. And so the nation gets imperceptibly dumber.
I do object to Buzzfeed's hacky attempt to discredit the nominee. It would be nice if we all told the truth about nominees. But mostly I object because Buzzfeed is contributing to the whitewashing of non-partisan evils in the pursuit of partisan ends. Buzzfeed, which would like for you to see Gorsuch as an extremist conservative stereotypically indifferent to human suffering, conceals that the opinion in question was written by an Obama appointee and joined by another Obama appointee. The point isn't that decisions must be right if they are bipartisan; the point is that a wide array of horrible things are subject to bipartisan approval, and feckless partisanship conceals that.
By any rational measure, Clayton Lockett's death was much more cruel than what he would have faced in front of a firing squad. It was far more cruel because we're obsessed with making a killing look and feel not like a killing. But a killing is a killing, and efforts to dress it up are doomed to fail. Judge Gorsuch is complicit in this twisted charade, but it's simply dishonest to suggest he's more dishonest than the vast majority of the American judiciary.
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