Endorsing Torture: Bucklew v. Precythe

On Monday, the U.S. Supreme Court issued its ruling in Bucklew v. Precythe —  a 5-4 decision authored by Justice Gorsuch that goes out of its way to endorse methods tantamount to torture as legitimate means to execute a death row inmate.   With a different make-up, the Supreme Court had long looked to evolving standards of decency to guide its 8th Amendment jurisprudence, and had at least acknowledged that continued U.S. embrace of the death penalty left us out of step with peer nations.  The current majority, however, apparently has no use for such transnational comparisons or appeals to human decency, instead gratuitously complaining about the “excessive delays” while prisoners exercise their rights to challenge their executions.

In dissent, Justice Breyer predicts that “it may be that, as our Nation comes to place ever greater importance upon ensuring that we accurately identify, through procedurally fair methods, those who may lawfully be put to death, there simply is no constitutional way to implement the death penalty.”  For the time being, however, the Supreme Court majority seems more concerned with speed than accuracy or fundamental morality.

A day after the Bucklew decision, the Human Rights Committee published its list of issues for the U.S. to address when it prepares its periodic report on U.S. compliance with the International Covenant on Civil and Political Rights.  Questions about the U.S.’s continued use of the death penalty are prominent, and the Committee asks:

“Please provide information on: (a) Death sentences imposed, the number of executions carried out, the grounds for each conviction and sentence, the age of the offenders at the time of committing the crime, and their ethnic origins; (b) Steps taken to eradicate racial bias in death penalty convictions; (c) Execution methods used in carrying out the death penalty and whether such methods were reviewed since the last reporting period; (d) The compatibility of lethal drugs used in executions reported to cause severe physical and mental suffering with the Covenant; (e) Steps taken to prevent wrongful convictions leading to death penalty sentences and provide compensation for those exonerated; and (f) steps taken to implement the judgment of the International Court of Justice on review and reconsideration of death penalties for individuals whose right to consular assistance was violated. Provide information on the number of wrongful death sentence convictions since the prior reporting period and any remedial measures taken. Indicate, also, whether the State party has considered establishing a federal moratorium on executions, with a view to abolishing the death penalty.”

Ultimately, the U.S. will present this information to the Human Rights Committee for its review and comment.  The current Supreme Court majority may believe that they can operate in a domestic vacuum, turning back the clock to death squads if need be.  But the rest of the world is judging, too.  The methods of execution approved by the current Court underscore, to people worldwide as well as in the U.S., the utter barbarity of the death penalty.