The ‘Machinery of Death’ is Back on the Docket

“From this day forward,” Justice Harry Blackmun announced in 1994, “I no longer shall tinker with the machinery of death.” Blackmun had long been in favor mandatory death sentences. But after 25 years of support, he said, he felt “morally and intellectually obligated” to concede that the death penalty experiment had failed.

Professor Garrett Epps

“Another quarter-century has passed,” writes Professor Garrett Epps in The Atlantic, “and the machinery of death chugs on, patched with judicial duct tape and legislative Crazy Glue. States have adopted new “more humane” execution methods (which sometimes require them to acquire lethal drugs on the black market); Congress has made it nearly impossible for federal courts to help most state death defendants. The Supreme Court, meanwhile, has refined the rules about who can be executed (barring, for example, prisoners with intellectual disability) and who can impose a death sentence (juries, not judges, must find “aggravating factors” in a defendant’s offense).

In his Sept. 18 article, Prof. Epps discusses two death penalty cases before the Supreme Court this term. Madison v. Alabama, which was argued earlier this week, asks whether the Eighth Amendment permits states to execute a severely mentally disabled prisoner—so disabled, in fact, that he cannot even remember his crime.

In November, the high court will consider the case of Bucklew v. Precythe, which asks if lethal injection constitutes “cruel and unusual” punishment—not in and of itself, but when administered to a convict whose medical condition means the injection would cause intense and intolerable pain. Epps describes the lengthy appeals process in this case as making Bucklew “into a kind of legal Sisyphus.” He adds, “The Bucklew case, however it is resolved, shows how fully the court has become enmeshed in the sordid details of official killing.”

Epps concludes: “There is no ‘capital punishment,’ no machinery of death, that stands apart from the ad hoc efforts of ordinary mortals to improvise the killing of fellow humans, whose bodies quite naturally fight for life up to and beyond the last agonizing breath.”

Read the full article in The Atlantic.

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