Editor’s Note: Jill Filipovic is a journalist based in Washington and the author of the book “The H-Spot: The Feminist Pursuit of Happiness.” Follow her on Twitter. The opinions expressed in this commentary are solely her own. View more opinion articles on CNN.
Russell Bucklew is on death row in Missouri, and the United States Supreme Court just gave that state the go-ahead to kill him in one of the most torturous and cruel ways possible. Bucklew, who has a rare condition that leaves his body riddled with bleeding-prone tumors, will convulse, choke, and eventually suffocate on his own blood if he is executed by lethal injection, according to his lawyers. If this is true, his death will be slow. It will be brutal. It will be excruciatingly cruel.
And according to Neil Gorsuch and the other right-wing members of the Supreme Court, it will be legal, even in the face of the Eighth Amendment, which says in full, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Previously, the Supreme Court had, in accordance with the Eighth Amendment’s bar on cruel and unusual punishment, held that inmates who would essentially be tortured by the standard methods of execution could be killed in another, less painful way. The court never required that executions be painless, and indeed recognized that killing a person usually means he feels some pain (this fact alone should disturb any decent human being). But previous iterations of the Supreme Court typically held that, where less potentially painful methods of execution were available, they should be used.
This court has gone in a different, exceptionally barbarous direction. As long as a state isn’t intentionally trying to make an execution super-painful, they say, then it’s fine. At Slate, Mark Joseph Stern cuts to the chase, writing that with this decision, “five justices of the Supreme Court authorized Missouri to torture a man to death.”
The United States is already an extreme outlier when it comes to the death penalty. We are in the company of the world’s very worst human rights abusers when it comes to the number of people we execute: China, Iran, Saudi Arabia, Iraq, Pakistan, Egypt, and Somalia. More than a hundred countries (that is, most of them) worldwide have abolished the death penalty; some others have death penalty laws on the books, but don’t utilize them.
In the United States, the death penalty serves no purpose other than raw, barbaric vengeance. It is more expensive to keep someone on death row than it is to sentence them to life in prison. Whether a person receives a penalty of death depends more on their race, the race of the victim, and which state they live in than on the crime itself – black defendants are more likely to receive the death penalty, as are people whose victim was white, as are defendants tried in the South. That’s not blind justice; it’s racism that means some people live and some die. And that certainly is not how the criminal justice system is supposed to operate.
Many studies have been conducted on whether or not capital punishment has the deterrent effect of lowering homicide rates, and nearly all of them conclude that it does not. Between 1973 and 2016, 150 people on death row were found to be innocent and released. It’s indisputable that there are many more innocent people who are sentenced to death; many have surely been killed by the state.
Human beings are capable of remarkable cruelty, and many of the crimes that land people on death row are horrifying. It can be tempting to let our most basic human instincts decide that people convicted for doing the unthinkable should pay with their lives.
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But we can also choose, like most of the rest of the world, to evolve, to recognize that the state should simply not have the right to murder its own citizens, and to see that the stakes are simply too high to exact such an extreme and permanent penalty.
Instead, the conservative majority of the Supreme Court has embraced its most barbarous impulses, and denigrated our constitution in the process. Human beings who act with that level of cruelty – who torture, who murder – should be the ones we put in jail. And those who put a legal veneer on judicially-sanctioned torture and murder shouldn’t be the people interpreting our laws from the most vaunted bench in the land.