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Cruel and Usual: The Eighth Amendment Turned Upside Down

Judges and jailers are deploying mercilessness as policy and practice.

April 10, 2019

You can draw a straight line in Amer­ican justice between the U.S. Supreme Court decision last week that endorsed a Missouri execu­tion likely to torture the condemned and the sick­en­ing mistreat­ment of pris­on­ers in Alabama (and count­less other juris­dic­tions across the coun­try). In both instances, judges and other offi­cials have toler­ated, and at times encour­aged, the erosion of consti­tu­tional rights of people who have been system­at­ic­ally dehu­man­ized in the eyes of our hollow laws. In both cases, the public servants acting in our name have embraced or defen­ded policies designed to be cruel toward those they target. It is arbit­rary. It is capri­cious. And it passes for justice in the Age of Trump.   

Prac­tices designed to be cruel in the sense that five conser­vat­ive justices on the Supreme Court now say it is okay if a death row inmate with a grave illness feels excru­ci­at­ing pain when his execu­tion­ers pump lethal drugs into his body. Cruel in the sense that Alabama prison offi­cials have known for decades that their penit­en­tiar­ies are places of horrific sexual viol­ence and mayhem and still have refused to fix the prob­lem. Cruel in the sense that the Eighth Amend­ment’s prohib­i­tion against “cruel and unusual punish­ment,” designed to limit the govern­ment when it turns its might against a person, has been turned upside down to permit punish­ment that is both inten­tion­ally barbaric and chillingly routine.

There already has been plenty of smart analysis about the Supreme Court’s lament­able decision in the case of Russell Bucklew in Missouri. Bucklew is a murderer on death row, and the state wants to execute him even though he has a rare medical condi­tion that will likely result in him chok­ing to death on his own blood when he gets his lethal injec­tion. Too bad, ruled Justice Neil Gorsuch, citing hoary 18th-century prac­tices as his guide. “The Eighth Amend­ment,” he wrote in Bucklew v. Precythe, “does not guar­an­tee a pris­oner a pain­less death — some­thing that, of course, isn’t guar­an­teed to many people, includ­ing most victims of capital crimes.”

Gorsuch’s rationale in Bucklew not coin­cid­ent­ally is of the same pound-of-flesh mental­ity that anim­ates almost every appel­late brief writ­ten by state prosec­utors in almost every capital case. It also, not coin­cid­ent­ally, echoes the way Justice Clar­ence Thomas for decades has spiced up his own death penalty opin­ions. There is always a grue­some recit­a­tion of the facts of the crime even if those facts are irrel­ev­ant to the legal issues raised on appeal. State attor­neys defend­ing a convic­tion, or an execu­tion like the one planned for Bucklew, always want review­ing judges to have the details of the crime on their minds when they are eval­u­at­ing the merits of the defend­ant’s claims.

Don’t forget, each of these briefs impli­citly argues that you are here mainly to do justice to the victim of this crime and not to this convicted murderer whose lawyers are asking for help. The idea is to dehu­man­ize a defend­ant, to tag him forever with the worst thing he’s ever done, and then argue that he there­fore merits little succor under the Eighth Amend­ment. And the purpose behind that is to speed up the “machinery of death,” to para­phrase former Justice Harry Black­mun’s unfor­get­table phrase. What Justice Gorsuch and the rest of the Court’s conser­vat­ives are saying in Bucklew is that murder­ers may, by law, be treated by the govern­ment in the moment of their death the way those murder­ers treated their own victims.

This wanton formu­la­tion by the Supreme Court makes the execu­tioner, and thus the rest of us by proxy, little better than the person the state is killing in our name. An execu­tion under the Bucklew preced­ent is both inten­tional and delib­er­ately mind­ful of the pain it will inflict on the human being to be killed. In more enlightened times, the Supreme Court declared 43 years ago in Estelle v. Gamble“that delib­er­ate indif­fer­ence to seri­ous medical needs of pris­on­ers consti­tutes the ‘unne­ces­sary and wanton inflic­tion of pain’” proscribed by the Eighth Amend­ment. Gorsuch and the gang in Bucklew go beyond “delib­er­ate indif­fer­ence” to “delib­er­ate cruelty.”  

But judi­cial indif­fer­ence to the “delib­er­ate indif­fer­ence” stand­ard under the Eighth Amend­ment is a good way to segue to the other trav­esty upon justice that unfol­ded last week. Turns out the same callous disreg­ard for the fate of “dehu­man­ized” pris­on­ers we just saw in Bucklew is exper­i­enced daily by count­less men and women in our pris­ons and jails. We some­how have arrived at a rare moment in Amer­ican history where there is broad bipar­tisan support for signi­fic­ant reforms in crim­inal justice, even over capital punish­ment itself, and yet we continue to allow our pris­ons and jails to be places where unspeak­able cruelty and viol­ence is permit­ted year after year.

The Justice Depart­ment — Donald Trump’s Justice Depart­ment, mind you — last week announced that its experts and invest­ig­at­ors believe that Alabama prison offi­cials routinely viol­ate the consti­tu­tional rights of pris­on­ers by permit­ting rampant sexual abuse and other viol­ence between pris­on­ers. This is separ­ate from the federal lawsuit now under­way there over the misuse of solit­ary confine­ment. The feds say the prob­lem isn’t just in one prison or in one unit of one prison. Instead, the prob­lem is systemic and pervas­ive and is getting worse. The response by Alabama Governor Kay Ivey, who fancies herself a justice reformer? Call it a crisis and renew her request for fund­ing for three new pris­ons in the state.

The savagery chron­icled by federal invest­ig­at­ors behind bars is not unique to Alabama and it is noth­ing new. It applies equally to pris­ons and jails. It cuts across polit­ical ideo­lo­gical divides. Flor­id­a’s pris­ons also are a mess but so are jails in Oregon and Wash­ing­ton. The prob­lems at Rikers Island in New York sadly pred­ated the death of Kalief Browder and will linger until the jail is closed. Like­wise, it has taken decades for litig­a­tion designed to reform atro­cious condi­tions of confine­ment in pris­ons in Arizona and there still is no end in sight. I wrote a column for The Atlantic titled “One of the Darkest Peri­ods in the History of Amer­ican Pris­ons." That was in June 2013.

There is noth­ing complic­ated about why this “delib­er­ate indif­fer­ence” has exis­ted all these years despite the Supreme Court preced­ent that was supposed to nullify it. The atti­tude exists for essen­tially the same simple reas­ons Justice Gorsuch alluded to in Bucklew. In the end, no matter what the Eighth Amend­ment says or does­n’t say, no matter which party is in power, too few people with the legal and polit­ical power to honor the rights of inmates give a damn about whether pris­on­ers who commit­ted viol­ent crimes them­selves become victims of viol­ence or victims of suicide. For too many in correc­tions, it’s a matter of one less mouth to feed and one more empty bed to fill to ease chronic over­pop­u­la­tion.

Here’s an example of what happens when delib­er­ate “indif­fer­ence” turns into outright “hostil­ity” toward inmates. About seven years ago, I wrote a piece about the grim life and early death of Jose Martin Vega, a career crim­inal who hanged himself in his prison cell in Color­ado in 2010. My story was about the deplor­able condi­tions of confine­ment at the ADX prison, but the most chilling part of the evid­ence was the fact that prison offi­cials had ensured that Vega’s life­less body would remain chained even after it was delivered from the prison to a local coroner. Common prac­tice, I learned, to send a message to the world that a prison could­n’t get out of his sentence even if he died serving it.

If state and local offi­cials really wanted to, they could, indeed, spend the money neces­sary to build newer, safer pris­ons and jails and then ensure that those facil­it­ies were adequately staffed. They could ensure that correc­tions offi­cials are kept prop­erly paid and trained and that health care providers who oper­ate in pris­ons and jails, private or other­wise, are held account­able for the treat­ment they provide to inmates. They could do all this and that would mean that pris­on­ers in their states, or in their counties, would be treated fairly, and humanely, and within consti­tu­tional para­met­ers. The fact that this is not happen­ing is not a mistake. It is an expres­sion of cruel policy. And it now speaks loudest on the highest court in our land.

Remem­ber nearly a decade ago, during the Supreme Court confirm­a­tion battle over Sonia Soto­mayor, when the debate centered over the mean­ing of judi­cial “empathy"? We now have arrived at essen­tially the oppos­ite point in the arc of justice: Where judges and justices are embra­cing forms of merci­less­ness as badges of consti­tu­tional honor. The Supreme Court’s conser­vat­ives easily could have spared Russell Bucklew and sent a message that we can’t torture people when we execute them. Alabama lawmakers easily could have made the state’s pris­ons safer decades ago. We are what our pris­ons say we are. The saddest thing is that we don’t have to be.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

(Images: Sam Scholes/Getty)