Neil Gorsuch’s first public vote as a Supreme Court justice was a sobering reminder that elections have life-or-death consequences. Gorsuch joined a 5-4 majority to deny a stay on the first of several executions the state of Arkansas is rushing to carry out, before the expiration of one of the chemicals it uses to administer lethal injections. Just before midnight on Thursday, Ledell Lee was executed. More executions are scheduled for Monday and Thursday of this week.
This proposed rush of executions is troubling in itself, as it represents many of the worst aspects of capital punishment. And taking a longer view, the outcome is outright tragic. Four justices on the Supreme Court are clearly poised to further limit capital punishment and may well be open to arguments that it is simply unconstitutional. But the presence of President Donald Trump in the White House may well entrench a broken death penalty system for more than a generation.
It’s telling that Lee was the first to be executed, since his case was particularly problematic. Lee, who was also convicted of multiple rapes, is not a sympathetic defendant, and it’s certainly possible that he was guilty of the brutal murder he was executed for. But his death sentence was not issued with appropriate procedural safeguards. Arkansas refused his request for a DNA test of some of the forensic evidence that was used to convict him, although it has granted similar requests by other defendants.
But this is just the beginning. The trial that convicted Lee was more consistent with an implausible legal thriller than with a court of law capable of applying the death penalty. As Liliana Segura observes at The Intercept, Lee’s “trial judge was having an affair with the prosecutor,” and “records show shocking failures of his defense attorneys, both at trial and post-conviction, which were compounded by egregious conflicts of interest.”
That the judge was literally in bed with the prosecutor would make it remarkable for any conviction to be allowed to stand, let alone a capital conviction. A bigger issue was Lee’s incompetent legal representation, which is a far more common plight of defendants in the court system. As Justice Ruth Bader Ginsburg once pointed out, “People who are well represented at trial do not get the death penalty.”
Beyond the individual issues with these cases, this proposed group of executions is problematic for a reason that affects the death penalty wherever it’s used in the United States. The lethal injection system, like many previous attempts to develop a “humane” method of execution, has failed. The method used by most states, developed without sound scientific basis and administered by unqualified personnel, has resulted in people being tortured to death. As a result, states like Arkansas are having trouble acquiring the requisite chemicals—which is why Arkansas is rushing to carry out multiple executions, procedurally sound or not, before the current stock expires.
But for a bare majority of the Supreme Court, including its newest addition, this was all good enough. Sadly, it didn’t have to be this way. Had Hillary Clinton been able to fill the vacancy on the Supreme Court left by Mitch McConnell’s blockade of Barack Obama’s nominee Merrick Garland, it is unlikely that these executions would have proceeded. Indeed, capital punishment might been struck down altogether.
For all intents and purposes, no more than two justices at a time have held the view that the death penalty is categorically unconstitutional under the Eight and Fourteenth Amendments, which forbid cruel and unusual punishment and guarantee due process, respectively. (A 5-4 majority of the Court in 1972 did hold that the particular death penalty statutes in place at the time were unconstitutional, before upholding new statutory regimes in 1976.) The liberal lions William Brennan and Thurgood Marshall believed the death penalty was inherently unconstitutional. The liberal Republicans Harry Blackmun and John Paul Stevens ultimately reached the same conclusion, but only as they were about to leave the Court. In 2015, Justice Stephen Breyer wrote a dissent joined by Ruth Bader Ginsburg strongly implying that he agreed with the Brennan/Marshall position. But while Obama’s Supreme Court nominees Sonia Sotomayor and Elena Kagan have yet to join them, the context has changed.
What is particularly encouraging is that it’s Justice Breyer who has taken the lead. Breyer has been a fine justice, but he’s also in many respects a liberal from the Clinton era—in general he is much more wary about pushing the law in innovative directions that Warren Court–era liberals. Breyer concluding that the death penalty is categorically unconstitutional would reflect a real change in mainstream Democratic opinion, and would make it likely that any Democratic nominee will be open to arguments that the death penalty is unconstitutional.
Another way that the death penalty is vulnerable is that executions have become overwhelmingly concentrated in a few jurisdictions. As Justice Ginsburg pointed out in a 2014 interview at Duke Law School, “Last year, I think 43 of the states of the United States had no executions, only seven did, and the executions that took place tended to be concentrated in certain counties in certain states.” This is important not only because it underscores the arbitrary nature of the death penalty as practiced in the United States, but because, all things being equal, the Supreme Court is more likely to rule a practice unconstitutional if it’s a regional outlier than if it is more widespread.
This isn’t to say that a Supreme Court with a Democratic median vote would have immediately ruled the death penalty unconstitutional. But it likely would have acted to further restrict its use, paving the way for a broader ruling.
Instead, the Court will remain where it is, and if Donald Trump gets another nomination it could become even more lenient on death penalty issues. Justice Anthony Kennedy is normally a conservative vote on the death penalty, but has sporadically voted with the Court’s liberal wing to rule the death penalty unconstitutional in certain circumstances: executions of minors, of people with severe mental limitations, and for sexual assault. If another justice like Gorsuch replaces Kennedy, states will have more leeway to apply the death penalty, not less. And if there is a 6- or 7-justice Republican majority, it will be a long time before there’s a majority open to holding the death penalty unconstitutional.
The 2016 presidential election could have been the death knell for the death penalty. Instead, it may well result in the death penalty being entrenched in certain states, and in less federal supervision of an arbitrary and unjust system. It’s yet another way that Donald Trump’s victory was a disaster for the country.