What Bucklew Doesn't Say

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Earlier this week, the Supreme Court decided Bucklew v. Precythe, a case about the meaning of the Cruel and Unusual Punishments clause in the Eighth Amendment. I am passing along some thoughts on the case from John Stinneford, a professor of law at the University of Florida and a leading scholar on the original understanding of the Eighth Amendment. His article The Original Meaning of 'Unusual': The Eighth Amendment as a Bar to Cruel Innovation (published a decade ago in the Northwestern Law Review) was cited in Justice Gorsuch's majority opinion. Here are John's thoughts:

Two days ago the Supreme Court decided Bucklew v. Precythe, a case involving a constitutional challenge to Missouri's lethal injection protocol.The main question in Bucklew was whether a defendant who raises an "as applied" challenge to a method of execution must identify a feasible alternative method of execution that significantly reduces the chance of unnecessary pain. (I call this the "pick your poison" requirement.)

The idea behind the "pick your poison" requirement is that a defendant should not be able to escape execution altogether by showing that the execution method chosen by the government is cruel and unusual. The requirement has no basis in the text of the Constitution, however, nor in any precedent prior to 2008. Rather, it arose as a response to efforts by death penalty abolitionists to force states to stop imposing the death penalty by making painless executions impossible. Abolitionists pressured drug manufacturers to stop selling barbiturates to states for use in executions. This left states with the choice between reverting to obviously violent methods of execution, such as hanging or the firing squad; or coming up with experimental lethal injection protocols that could be challenged as unduly risky; or ceasing to impose the death penalty. Abolitionists hoped that states would take the third option because the first two were too politically costly or constitutionally problematic, resulting in de facto abolition of the death penalty. The Supreme Court blocked this effort by requiring condemned prisoners who wish to challenge a method of execution to propose a feasible method of execution they considered acceptable. By forcing condemned offenders rather than state officials to solve the dilemma arising from the unavailability of barbiturates, the Court checked the movement toward de facto abolition – but only by adopting a constitutional standard that was ungrounded in text and history and undeniably results-oriented.

Bucklew argued that the "pick your poison" requirement should not apply to him because he was not raising a facial challenge to Missouri's lethal injection protocol. (Missouri uses a one-drug protocol of pentobarbital that appears to involve a much lower risk of suffering than the three-drug protocol used in many states. Since the three-drug protocol had previously been upheld in Baze v. Rees and Glossip v. Gross, a facial challenge to the less-risky one-drug protocol would have had virtually no chance of success.) Bucklew argued that the protocol was unconstitutional as applied to him because he suffers from a very rare medical condition that heightens the risk of suffering as compared to the risk faced by most condemned offenders. Because Bucklew's condition was so rare, he argued, the Court could create an exception to the "pick your poison" requirement for him without risking de facto abolition of the death penalty.

The Court rejected Bucklew's argument for a variety of reasons that I will not go into here. Instead, I will focus on the Court's effort to defend the "pick your poison" requirement from the charge that it is results-oriented and lacks a basis in constitutional text and history. This effort was ultimately unsuccessful, but it points to important changes in the Court's approach to the original meaning of the Cruel and Unusual Punishments Clause.

The Bucklew Court sought to ground the "pick your poison" requirement in the "original and historical understanding of the Eighth Amendment." The majority opinion is explicitly originalist in its approach to the Cruel and Unusual Punishments Clause, a rare (if not unprecedented) phenomenon in the modern history of the Court. But in contrast to some prior originalist concurrences or dissents by Justices Scalia and Thomas, the Bucklew Court does not rush to make any comprehensive claims about the original meaning of the Clause. Rather, it skirts around the edges of the Clause's original meaning, deciding only enough about that meaning to demonstrate (to its own satisfaction, anyway) that Missouri's lethal injection protocol is constitutional. In this regard, Bucklew is an admirably modest opinion.

To understand Bucklew's modesty, one needs to know a bit about our prior knowledge of the original meaning of the Cruel and Unusual Punishments Clause. Justice Scalia famously claimed that the Cruel and Unusual Punishments Clause was originally understood to prohibit those punishments (and only those punishments) that violated the moral standards of 1790. The Clause contained no principle of development, he claimed, and prohibited only barbarous methods of punishment, not punishments that were disproportionate to the offense. Justices Scalia and Thomas also argued that the word "cruel" covers only those punishments that are inflicted for the very purpose of causing needless pain. Virtually all members of the Court, originalist and non-originalist alike, ignored the word "unusual."

Recent scholarship (including my own) has shown that the original meaning of the Cruel and Unusual Punishments Clause is very different, in some ways, from the claims of Justices Scalia and Thomas. Perhaps most importantly, it has uncovered the original meaning of the word "unusual."

In the context of the Eighth Amendment, "unusual" means "contrary to long usage," not "rare" or "uncommon." It derives conceptually from the common law. Although today people often describe the common law as judge-made law, it was traditionally considered a form of customary law – the law of "long use and custom." Its authority did not derive from any claimed judicial lawmaking power. Rather, it derived from the idea that customary practices that are used over a very long period of time are presumptively just, reasonable, and enjoy the consent of the people – for if they lacked these qualities, they would fall out of usage. Because longstanding customs are presumptively reasonable, they can appropriately be enforced as law. The job of the common law judge is to identify longstanding customs and apply them in new cases.

Over time, the normative power of "long usage" gave rise to the idea of rights enforceable against the state. The idea was that even the sovereign lacked authority to violate fundamental rights established through long usage. This was the key idea underlying the American Revolution as well as the Bill of Rights. In this light, it becomes clear why the Eighth Amendment prohibits "cruel and unusual" – and not just "cruel" – punishments. Under the common law ideology that underlies the Eighth Amendment, the most reliable way to tell whether a punishment is unjustly harsh is to compare it to punishments that enjoy long usage. If it is significantly harsher than the tradition will permit, it is cruel and unusual.

One corollary to the notion of "long usage" is that if a once-traditional punishment ceases to be used for a long period of time, it is no longer part of the tradition. As Edward Coke wrote in the 17thcentury, "Custom loses its being if usage fails." Thus, contrary to Justice Scalia's claim, the Cruel and Unusual Punishments Clause does not tie us to the specific moral standards of 1790. If a punishment falls out of usage for multiple generations, it loses its presumption of reasonableness. If Congress sought to reinstitute the death penalty for a crime like counterfeiting, or to reimpose methods of punishment like branding or bodily mutilation, such punishments could be challenged as cruel and unusual despite the fact that they were acceptable in 1790 – for they have been disused for so long that they are no longer part of the tradition.

The Bucklew Court gestures toward the original meaning of the Cruel and Unusual Punishments Clause without ever fully articulating it. The Court's reticence is particularly apparent when it comes to the word "unusual." The Court never says that "unusual" means "contrary to long usage," nor does it hold that the primary purpose of the Clause is to prevent cruel innovation. Instead, it focuses on the corollary to the original meaning of unusual discussed above. The Court repeatedly describes an "unusual" punishment as one that has fallen out of usage for a long time. See, e.g., slip op. at *9 ("these methods had long fallen out of use and so had become "unusual"); slip op. at *12, (describing "long disused (unusual) forms of punishment").

At first glance, this approach to the original meaning of "unusual" seems strange. It would have been simpler for the Court to focus on the primary meaning of the word. The Court could have resolved the case quite easily by saying that a cruel and unusual punishment is a new punishment that is significantly harsher than the punishments it replaces, and that although lethal injection by pentobarbital is new, it does not pose a significantly greater risk of excruciating pain than traditional methods like hanging. Therefore, it is not cruel and unusual.

As the paragraph above indicates, had the Bucklew Court focused on the primary meaning of "unusual," it would have been able to draw on a relatively objective and determinate standard for measuring the cruelty of Missouri's lethal injection protocol: longstanding prior practice. Such a standard is notably missing from the Bucklew opinion. The Court notes that determining cruelty is a comparative process: for example, hanging was comparatively less cruel than long-disused punishments that "superadded" terror, pain, or humiliation to the process. Thus it was constitutionally acceptable even though it involved a significant risk of pain. Similarly, the Court held, the constitutionality of Missouri's lethal injection protocol must be determined by comparing it to some other punishment method. But rather than comparing the protocol to traditional methods of execution, the Bucklew Court relies on the "pick your poison" requirement, holding that the condemned offender himself should identify an acceptable (and feasible) method of execution to use as a point of comparison.

This requirement is obviously untethered from any constitutional standard as to what constitutes a cruel and unusual punishment. What if the only "feasible" alternatives are themselves unjustly harsh in comparison to traditional methods of punishment? In such a situation, the "pick your poison" requirement would force offenders to choose between two unconstitutional alternatives as the price of challenging the constitutionality of a method of execution. This result is precisely the opposite of what the Cruel and Unusual Punishments Clause requires. Let's hope that in a future case, the Court goes further and recognizes the full original meaning of "unusual." The point of comparison should be traditional punishments that have not fallen out of the tradition, not other "feasible" punishments whose constitutionality has not been established. The Constitution is strongest when judicial rulings are based on standards derived from the text and not their own invented requirements.

On the other hand, the Bucklew Court's recognition that punishments can become unusual if they suffer long disuse is a hopeful sign for the future. One of the primary objections to an originalist approach to the Cruel and Unusual Punishments Clause is that it would force courts to uphold punishments like branding and bodily mutilation because they were used in 1790. This objection is so powerful that it led Justice Scalia himself, early in his career on the Supreme Court, to call himself a "fainthearted originalist" and to express doubt as to whether – should push come to shove – he could actually enforce what he considered the original meaning of the Clause. Once the Court recognizes that the Clause does contain a principle of legal development – albeit one that operates very differently from the "evolving standards of decency test" – this objection evaporates. Execution for minor crimes, and the use of punishments like mutilation and branding, are no longer part of our tradition, and thus would not have to be automatically approved should the government try to revive them. Originalists need no longer be faint-hearted.

One last point about what Bucklew doesn't say: The Court flirts with the idea, long propounded by Justices Thomas and Scalia, that a punishment can only be cruel if it is inflicted for the very purpose of causing needless pain - but fortunately refrains from making this part of its holding. As a matter of original understanding, "cruel" means "unjustly harsh," not "motivated by cruel intent." Were the Court to impose a cruel intent requirement, it would be plunged back into the morass of subjectivity from which the original meaning of the Clause holds the promise of delivering it - and the constitutional protections provided by the Eighth Amendment would be substantially weakened.