Thursday, April 04, 2019

Facial and As-Applied Cruelty

by Michael C. Dorf

On Monday, in Bucklew v. Precythe, the SCOTUS rejected an Eighth Amendment claim by a condemned Missouri man who argued that although the state's execution protocol was not cruel in general, it would be cruel as applied to him, because vascular tumors in his head, neck, and throat could hemorrhage or rupture during the execution, leading to "prolonged" excruciating pain. Writing for the 5-4 majority, Justice Gorsuch sounded three main themes.

(1) Throughout the opinion, Gorsuch all but accuses petitioner Bucklew and his attorneys of bad faith. Although Bucklew committed his crimes in 1996 and exhausted his direct appeals and habeas challenges "more than a decade ago," the opinion states, "since then he has managed to secure delay through lawsuit after lawsuit." Given the very substantial skepticism with which the majority views Bucklew's entire case and death penalty litigation more broadly, it is probably not surprising that other aspects of the opinion (which I discuss after the jump) are less than fully persuasive. The Roberts Court views cases challenging methods of execution as a means of circumventing doctrines that generally permit the death penalty, and so will do whatever it can to knock down such challenges.

(2) The majority sees no problem in essentially ignoring what has long been the framework for evaluating Eighth Amendment claims. For over six decades, the Court has embraced a dynamic conception of the Clause. Consider a typical example. Quoting Trop v. Dulles (1958) and Atkins v. Virginia (2002), Justice Kennedy wrote the majority opinion in Kennedy v. Louisiana (2008), in which he said that whether a penalty is valid
is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that “currently prevail.” The Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.”
And yet, without so much as mentioning Trop or the evolving standards test, Justice Gorsuch simply equates the Eighth Amendment with its original meaning in 1791.

To be sure, it's not clear that the shift from the Trop test to originalism does any work in Bucklew. Justice Gorsuch says that the original meaning of a "cruel" execution is either one that is deliberately accompanied by excessive pain (as Justice Thomas would have it) or excessively painful (whether intentionally or not). One could derive the latter version of that principle from the Trop test itself. If one assumes that our society has not yet matured to the point where it categorically rejects the death penalty, one might say further that we have matured at least to the point where we want executions to be carried out with as little extra suffering as possible. And indeed, Gorsuch adopts that view, at least arguendo, as a matter of the Eighth Amendment's original meaning, relying principally on the Chief Justice's plurality opinion in Baze v. Rees, which also did not cite or quote any "evolving standards" language.

Why, then, do I make a fuss about the failure to cite or quote the "evolving standards" language? Because we have seen this movie before. First, in a case in which it doesn't matter to the outcome, the Court shifts doctrinal ground. Then it follows through on the shift in a case in which the different approach determines the outcome. Accordingly, be forewarned: There is a substantial likelihood that in some future Eighth Amendment case, the Court will overrule one or more precedents disallowing the death penalty or some other punishment on the ground that those precedents are not rooted in the original understanding.

(3) Meanwhile, the substantive merits of the opinion address two questions: (a) Was Bucklew obligated to propose a "feasible and readily available" alternative method of execution that would pose a substantially reduced risk of suffering? (b) If so, was the one he eventually proposed -- death by nitrogen hypoxia -- feasible and readily available? The majority said (a) yes, he had that obligation, but (b) his proposal did not satisfy it. Here I want to focus on the majority's reasoning in answering (a).

Bucklew distinguished between two sorts of claims that a punishment is cruel. A punishment could be cruel in an absolute sense or in a relative sense. Bucklew gave three examples of the former sort: death by burning at the stake, by crucifixion, and by breaking on the wheel. Likewise, he argued, the sort of death he would endure if subject to the state's protocol was absolutely forbidden, without regard to any alternative. Justice Gorsuch said that this argument was foreclosed by Baze, which requires comparison with alternatives for all method-of-execution claims.

Bucklew and the dissenters responded that the requirement of an alternative ensures that a method-of-execution claim does not become a backdoor means of attacking the death penalty itself but that this concern is not present in an as-applied rather than a facial challenge. In response, Justice Gorsuch said that
classifying a lawsuit as facial or as-applied affects the extent to which the invalidity of the challenged law must be demonstrated and the corresponding “breadth of the remedy,” but it does not speak at all to the substantive rule of law necessary to establish a constitutional violation.  Surely it would be strange for the same words of the Constitution to bear entirely different meanings depending only on how broad a remedy the plaintiff chooses to seek. [Citations omitted].
Wait, what? Why do Justice Gorsuch and the majority think that the meaning of the Eighth Amendment is different if it requires different things in different contexts? And did they correctly characterize the difference between as-applied and facial challenges?

Suppose that sodium benzoate--a common preservative--is an ingredient in all of the food that a prison cafeteria serves. There are some general concerns about the safety of sodium benzoate (because under rare circumstances it can convert to benzene, which is a carcinogen), but let's suppose that, as applied to the vast majority of prisoners, the menu is acceptable. However, a small number of people appear to have severe allergies to sodium benzoate. Imagine that one such allergic inmate notifies the prison authorities, but they nonetheless do not accommodate him. He must either go hungry or suffer serious asthma attacks. After exhausting his administrative remedies, he sues under the Eighth Amendment, arguing that the prison's deliberate indifference to his condition amounts to cruel and unusual punishment. He asks that the court order the prison to serve him nutritionally adequate meals that do not contain sodium benzoate. Using Justice Gorsuch's formulation of the distinction between facial and as-applied challenges, we would properly classify this lawsuit as-applied, because he seeks a narrow remedy; he does not ask the court to ban the serving of sodium benzoate more broadly.

And yet, we can readily imagine all sorts of ways in which "the substantive rule of law necessary to establish a constitutional violation" of the rights of one allergy sufferer seeking individual relief differs from the substantive rule that would apply in a case seeking to invalidate a prison menu on its face and thus as applied to every prisoner. Cost is an obvious example. The plaintiff seeking individual relief needs to make arguments about the costs and benefits of the preparation of one set of special meals; by contrast, someone seeking to ban sodium benzoate for everyone would need to make arguments about the costs and benefits of a whole new menu.

But it does not follow that the application of different rules to the as-applied challenge relies on a different meaning of the underlying constitutional provision. The meaning is the same, but its consequences differ based on its application to different facts.

This basic distinction points to a defect in Gorsuch's formulation of the difference between an as-applied and a facial challenge. It's true that Bucklew seeks a narrower remedy than he might be seeking if he said that the state's method of execution were cruel as applied to everyone. But that's not the crucial distinction between his as-applied challenge and a hypothetical facial challenge to the Missouri execution protocol. What makes Bucklew's challenge as-applied rather than facial is his claim that his circumstances are unusual. He seeks a more limited remedy because his facts are special, not the other way 'round. And because his facts are unusual, giving the Eighth Amendment a consistent meaning could entail giving him relief to which someone who didn't have his ailment would not be entitled.

To be clear, I'm not saying that for Justice Gorsuch and the majority are necessarily wrong to require that Bucklew come up with a feasible and readily available alternative method of execution. I am saying that what Justice Gorsuch writes about the difference between facial and as-applied challenges is problematic--at least taken on its face, so to speak.


Unknown said...

This is a fundamental misunderstanding of Gorsuch's as applied vs. facial rule logic. His point was not that the remedy may be different, but rather that the rule shall be the same. In this case, the rule is that the person seeking to stay execution must still adequately compare it to other available methods, just as the facial challenger must. The as applied challenger doesn't get a side door to proving his legal case.

In your example, the prisoner would just have to point to food that costs approximately the same for the state to provide that he would eat. The goal of the case at hand was to not compare his current protocol with another. Once the other protocol was instituted that protocol would also be challenged.

Joe said...

The distrust of challenges and the scorn at the specific inmate here are two aspects of this opinion that is distasteful. There is also the back/forth regarding the iman case.

If some of the analysis of the opinion does not fully parse the nuances of the ruling, the justices (Roberts deserves some blame here; he assigned it -- his new bio suggests he assigns certain opinions to "red meat" justices for a reason) surely didn't help the cause.

Over the years, I have seen even some anti-death penalty advocates not find method of execution challenges that convincing. But, there is actual evidence out there to be concerned about it, not limited to multiple botched executions. This isn't that recent either. Hill v. McDonough (2006) is one such case. Also, per a reference to the firing squad by Kavanaugh that received some attention, there actually is some evidence that would be safer for the inmate (Sotomayor in fact suggested that in her Glossip dissent) though it appears barbaric (cf. use of paralyzing agents that might make execution look nicer but can be dangerous since the person can't show they are in pain).

I personally think the conservatives think the lethal injection methods used are simply not going to be tortuous enough to violate the 8th Amendment so the whole less painful alternative thing is a sort of aside that one or two might actually care about. Glossip v. Gross said as much:

"Finally, we find it appropriate to respond to the principal dissent’s groundless suggestion that our decision is tantamount to allowing prisoners to be “drawn and quartered, slowly tortured to death, or actually burned at the stake.” Post, at 28. That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments."

It's a tacked-on comment so it's hard to know what it means, which again makes those who basically argue the justices are okay with torture as long as the inmate cannot (in a way strenuous enough to meet their standards) provide a better alternative not really at fault.

Joe said...

(I think the Roberts Court is to be praised for the crispness of their opinions. This one is longer than usual. It could be significantly shorter without some of the b.s.)

Asher said...

Yeah, Unknown is right. In your sodium benzoate hypothetical, the rule hasn't changed at all. It's just that the comparators have changed because the claim's a different claim. One person claims that all prisoners have a right to sodium benozate-free meals, the other claims that only he does. The rule, you say, considers the cost of the meals to which the plaintiff asserts a right. Well, that's the same rule no matter which meals the plaintiff asserts a right to; it's just that different meals have different costs. You might as well say that the rule we would apply to a challenge to sodium benzoate meals is different from the rule we would apply to a challenge to gluten meals because one looks at the cost of not using sodium benzoate and the other looks at the cost of not using gluten.

Also, insofar as you mean to imply that Gorsuch and the majority disagree with this statement:

"And because his facts are unusual, giving the Eighth Amendment a consistent meaning could entail giving him relief to which someone who didn't have his ailment would not be entitled."

I think you're wrong. Suppose a scenario on which injection protocol x is painless for most people, making it less painful than the firing squad, but is really painful for one person with a particular ailment. I think the majority would agree that if you plead enough about the viability of the firing squad as an alternative, the person with a particular ailment has a claim that others don't have. They merely insist that the rule you apply to his claim is the same rule that you apply to others' claims or to facial challenges, not that the same result must obtain under that rule no matter who's making the method-of-execution claim. Applying the same rule across the board may well entail giving relief to someone with unusual facts, as I just showed.

Michael C. Dorf said...

"Unknown" and Asher bend over backwards to read Justice Gorsuch generously and do the opposite (bend over forwards?) to read me ungenerously. I say at the end of this post "that what Justice Gorsuch writes about the difference between facial and as-applied challenges is problematic--at least taken on its face, so to speak," as I acknowledge that Gorsuch and the majority could be right that an as-applied challenger, no less than a facial challenger, to a method of execution must identify a feasible and readily available alternative. I clearly acknowledge that, as applied to this particular context, what Gorsuch says could be reasonable. My objection in point (3) is to the broad language Gorsuch uses, because "taken on its face" it suggests that whenever a different rule applies to an as-applied challenge as opposed to a facial one, the "meaning" of the underlying constitutional provision has varied. But that's just wrong. There are many ways in which the same constitutional language could entail different rules in different contexts. Take the different rules that apply to political speech, commercial speech, and sexually explicit speech. As Prof Fallon has shown, these different rules all "implement" the Constitution. They flesh out the meaning in different contexts. And so a single law -- one banning indecent speech on the internet, say -- could be subject to different rules of law based on whether the plaintiff brings a facial challenge versus an as-applied challenge, and still different rules based on the applications at issue. The application of different rules based on different sorts of challenges does not entail that "the same words of the Constitution . . . bear entirely different meanings depending only on how broad a remedy the plaintiff chooses to seek." They bear the same meanings but lead to different rules based on context.

David Ricardo said...

What is wrong with you people?

The situation is that an individual facing the death penalty in a manner that would result in horrific pain to him and the law requires that he or his attorney find an acceptable alternative. I realize that you are legal scholars, but to reduce this discussion to legal aspects when any person of any decency or compassion is so offended by the entire concept makes one wonder if you really see the issue here.

At some time in the future, when society has progressed beyond the barbarous right wing desire to execute individuals in the most cruel way possible the Gorsuch decision will be looked upon with the unlimited disgust that it deserves.

Joe said...

One problem with these cases is that there is a basic talking past each other on some level. The majority here (and in the last two cases) simply did not agree that "would result in horrific pain to him" was shown.

But, both sides questions the good faith of the other, thus one side thinks the other is "barbarous" while the other thinks we are closet abolitionists making shit up to stop the state's power to execute heinous criminals (Gorsuch provided the details).

It isn't just a legal dispute. But, it is that too.

Michael C. Dorf said...

On behalf of myself, "Unknown," and Asher, I take exception to David Ricardo's question. I oppose the death penalty on moral and pragmatic grounds, but I don't think that people who disagree are moral monsters. There are, after all, both moral (retributivist) and pragmatic (deterrence) arguments for the death penalty. Even Justice Thomas does not take the position that DR attributes to the right: the "desire to execute individuals in the most cruel way possible." He says that such intentional "super-added" pain would violate the 8th Amendment. And I don't read any of the liberals to accuse Missouri of having chosen its current method of execution for the purpose of inflicting pain. In any event, it ought to be possible to note one's deep moral opposition to a decision and yet still discuss other aspects of the case dispassionately. Chris Eisgruber's treatment of Dred Scott in my Constitutional Law Stories book is a good example. I did something like this in discussing the dormant commerce clause implications of California's egg regulations.

David Ricardo said...

It is very easy to discuss a case like Dred Scott on dispassionate grounds where the case is over 150 years old and there is universal condemnation of the decision. Similarly one can discuss a case like Korematsu without reference to its immorality because everyone knows and accepts the moral failure of the United States when it interred Japanese Americans in concentration camps and confiscated their property.

And the comment here was not about opposition to the death penalty, or denigration of those who support it, one of whom in very limited cases is this author. Instead it is utter disregard for the fact that the underlying issue in the case is so morally offensive. The issue here being that not only must the condemned fight in the courts for a non-tortuous execution where there is credible evidence that the state's method of execution would result in a horrific death but that the prisoner and not the state must come up with alternative. And really, does anyone believe that almost all conservatives do not applaud this decision and revel in the fact that the execution will be akin to torture, that Trump and his followers did not rejoice in the decision? The silence of the right is deafening.

As for Justice Thomas, many of us have learned long ago not to listen to his occasional lip service and instead to recognize that his fury (and now that of Gorsuch's) at individuals that try to exercise their God given and Constitutional rights with respect to punishment truly represents his position. Maybe somewhere out there is a body of work by Thomas that illustrates his decency, compassion and application of equality before the law with respect to criminal defendants, but many of us have yet to see it. To Gorsuch and Thomas, the issue is not about torture but about how awful it is that a defendant gets to have his day in court and thus delay the death penalty. (The delays are the result of our incredibly lethargic legal system where it takes months, and in many cases years to adjudicate an issue, and is not anything that a defendant has control over.)

A technical legal discussion of this case without a major portion of that discussion consisting of how the underlying facts violate not just the Constitutional provision against cruel and unusual punishment but basic human decency will be appropriate once the nation as a whole has recognized that like slavery and placing a group of individuals in concentration camps, torturing a person to death is just wrong.

Michael C. Dorf said...

I believe that the right overuses the term "virtue signaling," but it is a real phenomenon. I read DR's reply to accuse me of insufficient virtue signaling. However, I have no interest in, and see nothing to be gained by, engaging in a (further) debate about whether this post or anything else I have written about the technical legal aspects of a case that also involves profound moral questions contains sufficient expressions of moral outrage to satisfy DR. I will allow him to have the last word should he wish to signal how moral he is by further condemning me (and some other readers) for failing to surround discussion of legal doctrine with copious expressions of indignation.

David Ricardo said...

While the internet has opened huge opportunities for dialogue between people, particularly between people who are esteemed in their field like Mr. Dorf and those of us who are unknown but have a deep interest in subjects like the law, the drawback is that the attempts by the latter to engage with the former are sometimes mis-understood due to the limitations of in text discussions. Not only do I not condemn Mr. Dorf and others on a moral or other basis, given his writings and his personal preference for the vegan lifestyle there is no basis for me or anyone else to do so. That my posts are interpreted as condemnation or judgment on him or anyone else is something I regret.

The point I was trying to make, however inarticulately, is that the positions taken on the topic in the post by Thomas, Gorsuch and others are not based on legal doctrine, but on their own personal hostility to the exercise of constitutional rights by those condemned to execution. The anger in the writings of these and other conservatives that those condemned are not subjected to near immediate execution and that they have no right to as humane an execution as possible, that whether or not they are represented by competent counsel is irrelevant and that any evidence that comes forth after that trial that suggests innocence or lack of due process doesn't matter is unmistakable.

What people like Gorsuch and Thomas do is to conceal in technical legal analysis their personal drive to have maximum enforcement of the death penalty without regard to the rights of the condemned to any protection once they have been convicted and sentenced. When discussing the quality of the technical aspects of the ruling here I think one should at least acknowledge the morality of the situation and the obvious bias of the Justices towards executing people without allowing them their full legal rights, that is all. If I were to criticize Mr. Dorf of anything it is that he is too virtuous, that in his respect for the law and the Court he is crediting people like Thomas and Gorsuch with being ojective by their presentation of legitimate legal arguments instead of recognizing they are trying to impose their own personal beliefs on the nation through their rulings.

Finally, no one who knows me would in any way suggest I have lead my life in a more moral manner than Mr. Dorf. They would laugh at the suggestion.

Shag from Brookline said...

Justices are not immune from displaying their personal animus which can impact providing justice to individuals. Oh for a "more perfect Union" since 1791 in contrast with the Trumpian "oranges" of the 8th A.