The eighth amendment prohibition on cruel and unusual punishment is among the most noble and valuable constitutional protections. It is the only provision of the constitution that recognizes the dignity and humanity of everyone, even those who commit the vilest crimes.
But in the last several years, this great legal and moral achievement has taken a beating at the hands of conservative judges and justices. They have done much to empty it of its meaning by tethering it to the views of the people who wrote it more than two centuries ago.
This has been especially apparent in the context of capital punishment where the supreme court has bent over backward to ease the path to the execution chamber for people convicted of capital crimes. Moreover, the current death penalty jurisprudence is so convoluted that lower courts often have difficulty figuring it out.
That difficulty is very much on display in a pair of decisions over the last few days on the constitutionality of Alabama’s nitrogen hypoxia protocol. On 28 May, the federal district judge Emily Marks said that nitrogen hypoxia passed muster. She compared it with barbaric execution methods that haunted the imagination of the framers of the constitution.
Only a few days later, an appellate court reached a different conclusion, finding nitrogen hypoxia to be an unusually painful execution method. Both courts claimed that they were faithfully applying supreme court precedent.
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All the while, Jeff Lee’s life is on the line. His execution had been scheduled for 11 June. On Tuesday, after the 11th circuit court of appeals found nitrogen hypoxia to be constitutionally defective, Marks enjoined the state from executing him using that method. But Lee cannot rest easy.
As an article in the Guardian notes, Marks went out of her way to point out: “The state of Alabama can pursue two other authorized execution methods: lethal injection and the electric chair,” and that “Lee is ‘not entitled to an injunction barring the state from executing him using one of those methods’.”
Anyone who has followed recent death penalty jurisprudence would not have been surprised by the judicial disagreements that unfolded in Lee’s case. More is at stake in the debate about nitrogen hypoxia than the fate of a single person.
That is because nitrogen hypoxia is an approved execution method in five states: Alabama, Arkansas, Louisiana, Mississippi and Oklahoma. So far, it has been used only in Alabama and once in Louisiana.
Lee’s is the first case in which a trial judge held a full evidentiary trial focused solely on the constitutionality of nitrogen hypoxia. The record of that trial detailed just how much suffering that execution method has imposed on those who have been put to death by it.
It set the stage for the 11th circuit court of appeals to point out nitrogen hypoxia’s cruelty.
To put it plainly, that method kills by starving someone of the oxygen needed to sustain life.
Professor Damian Bailey and his colleagues point out: “Contrary to claims by proponents that nitrogen asphyxiation is quick and painless, eyewitness testimonies from the recent executions described visible suffering that inmates were forced to endure for several minutes before eventually losing consciousness … indicating prolonged and profound respiratory distress and challenging the widespread, misinformed narrative of a humane death.”
However, if and when the supreme court weighs in on nitrogen hypoxia, it is unlikely to be moved by such arguments. The court has never been hospitable to challenges to any method of execution.
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And starting in 2008, the supreme court has made it even more difficult to succeed in those cases. The current standard requires that for a condemned person to prevail, they must prove that an execution method poses “a ‘substantial risk of serious harm’, an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the eighth amendment’”.
In addition, the current court puts the burden on people challenging an execution method to identify a “known and available alternative method that presents a lesser risk of pain on people challenging an execution method”.
Calling that Kafkaesque would be an understatement.
And if that were not enough, some of the court’s most ardent originalists, in particular Clarence Thomas, have said that a punishment cannot be cruel unless it would have been considered cruel when the eighth amendment was adopted.
In her 28 May ruling on Lee’s case, Marks followed that path. She showed her originalist bone fides in a way that would make Thomas proud.
In her view, only barbaric punishments such as “drawing and quartering, public dissection, burning at the stake, crucifixion, breaking on the wheel, flame, scourging, starving, gibbeting or rending asunder with horses” are prohibited by the constitution.
Even as Marks detailed the severe pain caused by nitrogen hypoxia, she concluded that compared with those punishments, nitrogen hypoxia was an enviable way to die.
Small comfort for Jeff Lee and to everyone who values the protections provided by the eighth amendment. But Marks did not have the last say.
On 8 June, the 11th circuit court weighed in. In its view, the evidentiary record made by Marks was sufficient to show that nitrogen hypoxia creates a “substantial risk of serious harm”.
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The circuit court concluded: “The overall suffering described by the district court, which lasts for one to three minutes, presents a substantial risk of serious harm over and above death itself. Counting to 60 or 180 seconds is not a quick exercise, and constitutionally speaking, that timeframe is intolerable given the suffering that would likely take place under Alabama’s nitrogen hypoxia protocol.
“Such suffering,” it said, “is over and above the mental distress that typically accompanies the knowledge of impending death by execution.”
Whatever happens next, we should recognize that the 11th circuit decision is truly remarkable. It is a watershed in the continuing debate over nitrogen hypoxia and its status as an execution method, and a reminder that the quest for a humane way to execute is fraught at best and illusory at worst.
In the end, disagreements on courts or between district and appellate courts are the lifeblood of the judicial process. What is particularly troubling about the judicial ping-ponging in the Lee case is what it says about the eighth amendment’s fate in the hands of judges and justices eager to give states a wide berth in imposing and carrying out the ultimate punishment.
