The death penalty in America is grotesque, even if you agree that it is fit for the state to execute someone.
I'm not, for the moment, talking about a system that offers only a feeble semblance of due process. I'm not talking about the fact that innocent people are sentenced to death and even executed. I'm not talking about how race drives the death penalty.
I'm talking about how we've tried to make execution look like a sanitary medical procedure, and how litigation over the death penalty is dominated by arguments about how close we've gotten.
But execution isn't a medical procedure, and it's perverse that — ostensibly in the name of avoiding cruelty — we've dressed it in the garb of one. An execution is the state deliberately killing someone. You might decide it's necessary or justified, but unless you're a monster you'll never find it pleasant or soothing or peaceful. Suggestions that we return to a firing squad or some similar bloody method are met with outrage, but a firing squad has this virtue — it does not pretend to be anything but what it is, and does not lead us into tinkering with how the state taking a man's life might better resemble taking his tonsils out. The firing squad is only brutal and inhuman in the way that execution is inherently brutal and inhuman.
It's against that backdrop that Buzzfeed wrote about Supreme Court nominee Neil Gorsuch. Buzzfeed's headline blares: Trump’s Supreme Court Pick Determined That A Badly Botched Execution Was An ‘Innocent Misadventure.’ The meat of it:
Just a few months ago, Gorsuch — now President Trump’s nominee for the Supreme Court — ruled against the estate of a man who was executed in one of the worst botched lethal injections in US history. Gorsuch and two other judges ruled that it was an “innocent misadventure” or an “isolated mishap,” but not cruel and unusual punishment.
This was, at best, carelessly misleading.
The decision in Lockett v. Fallin, the case Buzzfeed is talking about, is here. The facts of Lockett's execution resemble something out of a horror movie, or perhaps a shrill angry farce decrying the death penalty.
"The documents paint a picture of chaos in the execution chamber," said Cary Aspinwall of the Tulsa World who is reviewing the documents.
"The execution team didn't have the size needles they needed, they couldn't find veins that would work and the drugs didn't start taking effect when they thought they would," Aspinwall said.
The question before the Tenth Circuit panel — including Judge Gorsuch — was whether the trial court correctly dismissed Lockett's estate's lawsuit claiming Eighth Amendment violations. Lockett's heirs argued, among other things, that the execution constituted cruel and unusual punishment. In an opinion by Judge Gregory Phillips (an Obama appointee, for what it's worth), the Tenth Circuit concluded that the trial court was right to dismiss the case because the complaint did not state facts supporting an Eighth Amendment claim. The Supreme Court has held that because capital punishment is constitutional, there must be constitutional ways to carry it out, and that some pain is inherent in execution. The Supreme Court has also held that accidents in execution do not automatically render them unconstitutional. In doing so, the Court — quoting long-dead justices with equally bad taste in nomenclature — said that an "innocent misadventure" or "isolated mishap" is not an Eighth Amendment violation. The Tenth Circuit applied that language to Lockett's case:
Everyone acknowledges that Lockett suffered during his execution. But that alone does not make out an Eighth Amendment claim. Here, the Amended Complaint describes exactly the sort of “innocent misadventure” or “isolated mishap” that the Baze plurality excuses from the definition of cruel and unusual punishment. Id. Thus, Lockett’s suffering did not run afoul of the Eighth Amendment. While Lockett’s Estate takes issue with the three-drug protocol and the midazolam amount used in Lockett’s execution, everyone agrees9 that Lockett’s suffering arose from IV infiltration: the drugs leaked into the surrounding tissue rather than into his bloodstream, keeping Lockett from receiving full doses of the drugs.
Put another way, the state did not choose a method to cause unnecessary pain, it bungled the method it chose and caused pain.
Judge Gorsuch joined in the court's decision without a separate opinion. Judge Nancy Moritz — another Obama appointee — concurred in a separate opinion.
Buzzfeed's take on this is very misleading. One short paragraph in the middle might lead a careful reader familiar with appellate procedure to realize that Gorsuch and his colleagues did not coin the terms "isolated mishap" or "innocent misadventure," but the headline and thrust of the article are calculated to imply falsely that Gorsuch chose those terms to characterize the botched execution. It is inevitable that's the way Buzzfeed's headline will be read and distributed through its viral channels. And so the nation gets imperceptibly dumber.
I do object to Buzzfeed's hacky attempt to discredit the nominee. It would be nice if we all told the truth about nominees. But mostly I object because Buzzfeed is contributing to the whitewashing of non-partisan evils in the pursuit of partisan ends. Buzzfeed, which would like for you to see Gorsuch as an extremist conservative stereotypically indifferent to human suffering, conceals that the opinion in question was written by an Obama appointee and joined by another Obama appointee. The point isn't that decisions must be right if they are bipartisan; the point is that a wide array of horrible things are subject to bipartisan approval, and feckless partisanship conceals that.
By any rational measure, Clayton Lockett's death was much more cruel than what he would have faced in front of a firing squad. It was far more cruel because we're obsessed with making a killing look and feel not like a killing. But a killing is a killing, and efforts to dress it up are doomed to fail. Judge Gorsuch is complicit in this twisted charade, but it's simply dishonest to suggest he's more dishonest than the vast majority of the American judiciary.
Last 5 posts by Ken White
- Now Posting At Substack - August 27th, 2020
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- All The President's Lawyers: No Bill Thrill? - September 19th, 2019
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- All The President's Lawyers: - September 11th, 2019
Other than "Tasty" there's not much to like on buzzfeed…
Damnit! Thank you for the counter balance. This administration is going to throw so much real crazy our way, it will be so important to shout the hyperbolic responses with both feet (and whole brain) grounded in reality. If we don't, it's just more ammunition for them to dismissively tweet about what whiners everyone are.
Keep it up.
Very well said, as always, and precisely, exactly right on all counts in my worthless opinion. Thank you for saying this.
I think that a minimum of two changes need to be made to the system regarding the death penalty;
1) Any Prosecutor, Policeman, or other official that can be shown to have tampered with a capitol case in order to obtain a conviction, should be put on trial for conspiracy to commit murder. Suppress evidence of innocency so your office can look 'tough on crime'? Well then, let's see how YOU like death row.
2) Return to methods of execution that are quick, but messy. Guillotine springs to mind. Televise them, during prime time, preempting regular programming. And require that the prosecuting attorney be present in the death chamber.
One of the only good things about this Presidency (perhaps the only good thing) is seeing all the liberals suddenly attempt to hold their government accountable again. Everyone is suddenly talking about US-caused civilian deaths in Yemen, because apparently there weren't any for the past 8 years…
I agree with Ken.
Civilized societies have been conducting quick, un-messy executions involving a minimum of pain and suffering for many, many thousands of years. How we've managed to F-up this rudimentary, fundamental component of the Social Contract to the extent evidenced above is beyond me.
Who among us wouldn't want to be guillotined for Climate Change Apostasy (pick your own heroic, capital transgression) rather than face several hours of eyeball bulging, pants-shitting horror at the hands of some idiot, government employee who knew what he might be getting into?
Another perfect example of how, in the social domain, evolved common sense beats overly abstract, complex, hi-IQ problem solving and analysis any….pretty much every F-ing time.
Also lost in this is fact that we have the current mess because death penalty opponents first claim every prior method was inhumane yet when a mew method is proposed immediately set about making the means of using it unavailable by attacking those companies that supply the means.
Over/under on number of comments accusing Ken of being a Trump apologist?
While I go back and forth on the idea of capital punishment, I don't understand why, if it must be done, we can't just do it with carbon monoxide. Subject becomes drowsy, goes to sleep, and then dies.
@rsteinmetz70112
Morbidly enough, that's a positive for shooting squads. Access to the means would be a constitutional right.
Aaaand, that's a creepy thought process.
Death-penalty opponents try to make executions practically difficult to carry out by hook or by crook, do their damnedest to shame reliable vendors out of providing the necessary supplies, and demagogue any method of execution whose "visuals" are insufficiently gentle and non-clinical. Then they turn around and complain that the legal machinery is labrynthine, that lethal-injection cocktails go awry, and that executions are made to look clinical. If the current status quo bothers any observers, they could always try cutting the histrionics that helped bring it about.
The interesting thing about the method used is that we already know of a basically perfect method:
100% nitrogen.
Fast, cheap, completely painless, works 100% of the time, no mess. Subject feels (at most) slight euphoria, immediately goes to sleep, never wakes up.
As I gather (not an expert), the reason we DON'T use it is because we don't want word to spread about the easy availability of the perfect suicide method. Feel free to set me straight if this is wrong.
Nitrogen asphyxiation has already been demonstrated to be vastly more humane and quick, utterly reliable, and has already been approved by law in Oklahoma as an state execution method. It's biologically inert and literally all around us, so there's no danger of accidental atmospheric contamination to those nearby when venting afterwards.
If it is to be done, these attributes seem highly appropriate for the methodology.
Good job. Your descriptions lured me back to the oppose side on death penalty. I had kind of climbing the fence.
A hearty guffaw at all the comments complaining that death penalty opponents have made it hard to execute people by other means, and then made it hard to execute people by the sole means left to the state.
Why, it's almost as if those damned death penalty opponents don't want the state to execute anybody!
Instead of discussions about 'humane' ways to kill people, why not eliminate the death penalty and be done with it?
We normalize violence in -every- aspect of our culture, then we use violence to reduce violence, in the civil arena as well as the military one.
We need to change our culture before it's too late. We have a 'positive feedback' system. In nature, such systems kill the organism. In man, the results are the same, for the system, not the individual.
Not a great way to start the new year.
. .. . .. — ….
Obviously, Chris; but it'd show a smidge more integrity to argue on grounds other than the ones the opponents had a hand in fostering.
I think Kozinski said it best in his dissent in Wood v. Ryan:
If we can't face the fact that executions are brutal, perhaps we shouldn't execute people. Doing it by "medical" means just sanitizes the act.
I'm pretty sure if a state actually attempted an execution by nitrogen asphyxiation the death penalty opponents would argue that industrial nitrogen was some how harmful to the executed, demand medical grade nitrogen and them put pressure the suppliers to not provide it. (By the way Industrial Nitrogen is purer than medical grade nitrogen)
C. S. P. Schofield says February 1, 2017 at 10:13 am:
Agreed, but this does have the inherent problem: Quis custodiet ipsos custodes?
Often an executive (presidential or gubernatorial) or legislative action is required to achieve the purpose, ie: appointment of a special prosecutor. That places the question of who is to be prosecuted back into the realm of majoritarian electoral politics, and to some extent the courts as well.
The political machinations and court cases that occurred in the Watergate related prosecutions of the 1970s are an example.
There's always Blowing from a gun. On primetime TV, of course, with endless repeat loops on youtube.
This isn't difficult. Take the murderer out behind the courthouse and put two bullets in their head. Done.
Agreed about nitrogen. Our breathing reflex is triggered not by lack of oxygen, but by accumulation of CO2. Lack of O2 (anoxia; breathing in pure nitrogen) simply causes loss of consciousness without any perception of discomfort. Because some enclosed electrical & telephone switchboxes are flooded with N2 to prevent fires, workers entering them without breathing apparatus can and do die – painlessly, without any awareness that anything is wrong. Then, when their rescuers try to help them, they die too.
What about the discomfort we feel when we hold our breath? Only caused by the accumulation of CO2, not by lack of O2. Divers who hyperventilate prior to diving lose a lot of CO2 and delay the discomfort. If it's delayed too long, lack of O2 causes loss of consciousness before the breathing reflex kicks in.
Source: Am a recovering academic in the field of metabolic physiology.
I don't know why people think that companies are being shamed into stopping the supply of materials used in executions
If I remember correctly the popularity of the death penalty has been declining and no business wants to be associated with it. There's no shaming, its just good business
@rsteinmetz70112
Isn't that basically what pro-lifers do about abortion? Maybe if it didn't work people would stop doing it.
Um, no? You seem to be confused about who's controlling this arms-race.
The argument that execution method X is a cruel and inhumane, and therefore unconstitutional method of executing people, is not the same argument as "method X is a cruel and inhumane and therefore unconstitutional method of executing people, therefore we should use method Y, which is less cruel and inhumane." I assure you, the position of most death penalty opponents is that method X and method Y–and also methods Z, AA, etc., are cruel and inhumane, and therefore we shouldn't be executing people.
The driving force behind the "sanitization" of executions isn't death penalty opponents, it's death penalty proponents.
Basically, there's a (probably moderate) number of people in the "mushy" middle of this debate who have some general sense that some crimes deserve the "ultimate" punishment — but aren't particularly interested in torturing criminals to death. These people hear about some horrible murder and think "you know, I'm comfortable executing that guy. He's the worst." But a lot of these people aren't exactly looking to hear about how he catches fire when the current is turned on, or how sh-t and p-ss ran down the guy's leg when he was hanged, or how the state pumped him full of chemicals while he laid on a table moaning and writhing for 45 minutes and wouldn't die. Those sorts of stories cause these people in the middle of the debate to say "gee, I really think there are some horrible criminals who probably deserve to die–but that sure sounds like torture to me, and that's not what I'm going for." Those people start to think that, "well, as much as some people probably deserve the death penalty, maybe it's not worth it; maybe we should just abolish the thing." And so the state says: "No! Wait! You're right! That was a mess. But don't abolish the death penalty – Look! We have this shiny new contraption. It will execute people virtually painlessly! Give us another chance to prove we can execute people the right way!" That's why the state gives us ever-"improving", ever more "humane" methods of execution: so it can keep using them.
If guns were to be used, why use a firing squad? Why not have a single person put a gun up to the condemned's head and shoot? I remember reading the reason for this is that with a firing squad no single person can be sure that they were the sole cause of death, but plenty of other execution methods have a sole person being responsible for the death.
@nhrpolitic13:
That's a bit of an oversimplification. Everybody's busy goring all the oxen.
Right. But OTOH, it's not the death penalty proponents making sure "these people" hear all the gory details. "These people" aren't necessarily listening for all the details; death penalty opponents keep them in front of their faces. All the exact same two-faced crap done by the other side when it comes to pre-birth "death penalty".
IOW, you're contributing to exactly the problem Ken is writing about, by claiming that this particular issue is one-sided.
It's not, so stop doing that. You'll convince the choir; the other side sees straight through it, exactly the same as when you see through what the other side is doing if they show you what you call "fetal matter" and and they call it a "baby."
A pox on both your houses.
Thanks for the analysis, Ken. I pretty much agree with everything you said here.
Except for one thing: execution isn't 'inhuman'. Sadly, it's the most human thing in the world.
(And I'd be interested in hearing your general take on Judge Gorsuch – is he 'Trumpian' in any way? or just conservative? etc.)
@Philip
It is difficult. If that's how procedure worked, there would be no method by which to appeal convictions made based on bad evidence, arguments made in bad faith or bad application of law.
The method of "take them out back and shoot them" assumes the convicted has no further rights in criminal procedure once the sentence is handed down. What's the point of having the 8th Amendment if we can bring a punishment down on someone without having thought about its legality? It's like making a law without consideration to whether or not it is constitutional to make that law (which is a thing lawmakers do, either to have it out there just long enough or to use it to challenge precedent).
It also assumes district courts are perfect. We have appeals courts because not every local judge in every stretch of the US can apply the law to perfection and mistakes happen in criminal procedure. This assumes no one acts maliciously or incompetently to advance the cause of a conviction. Slow justice is closer to ideal than no justice. Even if they now have to take about 20 years to determine someone should be put to death, better they confirm the offender's guilt and deserved penalty through due process.
Ken, very well put, not just about Buzzfeed, but better, about all the problems and issues with the death penalty, especially for the bigoted, or simply calloused, including at least one or two commenters here.
C: Again, there are many "liberals," or better, left-liberals and beyond, who have never defended Obama on this.
RSteinmetz: Per Ken, the simple answer is — abolish the death penalty. In the US, any and every death penalty method will continue to execute innocent, and execute unduly by race. There, that wasn't hard now, was it? Others have already given you a well-deserved punking, so I'll just add … feel free to inhale several hundred liters of nitrogen.
Philip: Please feel free to go play Russian roulette with a two-bullet revolver, OK? Oh, and if you survive, don't consider yourself entitled to legal representation in the future.
The Angry Philosopher is probably right in a Mark Twain type sense, sadly.
I did nothing of the sort. I said one side's argument is "X" and one side's argument is "Y". And I gave the reason why those are their respective arguments. If you'd like to explain how I'm supposed to lay out an argument and a counter-argument without laying out the argument and counter-argument, please do explain: I'm all ears. As it stands, Dictatortot suggested that anti-death penalty folks were someone acting disingenuously in arguing (albeit in somewhat serial fashion) that various methods of execution of are inhumane – I think one should see the logic of the arguments.
As to goring oxen; frankly, I don't give much of a d_amn, and I doubt I am; I may lean slightly against the arguments I see advanced by the state and its followers-on, but I generally count myself as one of those people in the muddy middle on this one — at the margins I'd prefer not to see the death penalty abandoned entirely, as I figure I'd like to be able to do off the occasional dictator-type or truly horrific mass-murderer; but I'm not interested in maintaining the macabre, or merely aggrandizing government power, ego, or someone's interpretation of what their god told them to do. (Ultimately, if we're going to do it, I think we should call it what it is, and admit it ain't that pretty, and if you can't get the population to support that, then stop doing it. I'm pretty skeptical of this notion that we can make executions "ok," and I have an underlying suspicion that the people who are making that argument that they can be that way are, frankly, sadly mislead or flat out lying (one would assume there's a reason the state doesn't want these "clinical" executions publicized, right?).)
Be angry if you choose. I don't see how that helps much. Frankly, I don't begrudge either side their arguments: they're both the logical mode of progressing the most effective argument either side has, so I find it hard to take issue with the fact that their respective proponents make them. What do you propose they argue?
In the end, both sides are being somewhat disingenuous, but I think when it comes to either the death penalty or abortion, you're asking a lot for a population of 300+ million to address the issue head on; if it's not the most efficient way, it's much easier to argue the incremental issue that this method is a step too far, ad infinitem (and bring some photos or gory stories with you). . . so that's where the logic leads the argument.
@BNK, you're describing the following situation:
– Companies are making money doing something "immoral"
– Popularity of the "immoral" thing drops;
– (???)
– Companies decide that they prefer morals over money and, without any shaming, decide to stop doing the "immoral" thing.
That doesn't sound very believable to me. So I googled the most obvious phrase – "shame death penalty suppliers" and found this paper – http://www.bu.edu/bulawreview/files/2015/03/FAN.pdf
I guess when the author says:
"The strategy of taking the death penalty battle to the market by ferreting out
and campaigning against lethal injection drug suppliers has been wildly
successful in shriveling the execution drug supply"
They're not talking about shaming. Except when they are:
"British drug wholesaler called Dream Pharma, soon found themselves the targets of a shaming campaign".
Or similarly, when this article(https://www.bloomberg.com/view/articles/2016-09-26/death-penalty-drugmaker-shouldn-t-be-anonymous) described corporations being unwilling to produce drugs for execution:
"The broader context here is that abolitionist opponents of the death penalty have been shaming the corporations that provide drugs intended to kill people at execution."
Heliophage says
I can testify that inert gasses are a painless way to die. In 1978 I stupidly looked inside a reactor vessel that was full of argon. I was told I had my head in one of the hot legs for about thirty seconds. Next thing I know there is an oxygen mask in my face.
Lucky SOB.
Yeah, executions are bad.
Too bad Clayton Lockett didn't have such qualms about execution when he "kidnapped, assaulted, and killed nineteen-year-old Stephanie Neiman. Lockett shot young Ms. Neiman with a shotgun and then had an accomplice bury her alive. In 2000, a jury found Clayton Lockett guilty of 19 felonies arising from the same incident, including the murder, rape, forcible sodomy, kidnapping, and assault and battery of Ms. Neiman. "
I think the death penalty is clearly constitutional, but it's certainly reasonable to wonder whether the execution of it is in many places. Personally, while I marginally support it, I wouldn't care at all if it disappeared tomorrow. None of my reservations, however, are based on the idea that we might execute an innocent person. While people usually find that abhorrent to hear, I accept that with any method of punishment, no matter how well intentioned, you'll make mistakes. There is a lengthy appeals process that allows us to correct those mistakes. I would like to see the appeals process improved dramatically, since it's ridiculous that you can't argue factual innocence on appeal. It's an imperfect system certainly, and while that's inevitable, it's also avoidable in many ways. Actually, the more I think about, let's just get rid of it and avoid these uncomfortable discussions altogether since there's plenty of other things we can yell at each other about.
I always found it a bit surreal when I saw articles saying things like problems with the supply of some drug affecting executions in the states.
I mean, I get there's a requirement to be humane and not torture people to death. It's a good requirement. But there's just so many ways to execute someone reasonably painlessly. Most of them seem more reliable than something that looks like a medical procedure.
If you want it to be painless and to look peaceful:
Stick someone in a room, flood it with pure, room temperature nitrogen. Our bodies react to high CO2, not low oxygen. It's why LN2 can be so dangerous in a confined space, you just go to sleep without any panic. Leave them there for a few hours making sure the nitrogen level is close to 100%.
Hell, just lower the air pressure in the room and they'll die giggling, no panic with no risk of any gas leaks.
If you just want there to be little to no time for pain:
just get a really big, fast macerator and spin it up to a few thousand RPM.
Or if you're afraid that the prisioner might be inhabited by a demon of some kind, you like explosions and you want to be really sure:
Get 100kg of explosives covered in ball bearings and make an armchair out of it in the middle of a big cleared space.
What is with the obsession with almost ritualistic methods? Especially when those methods seem to be a bit shoddy, ie they can actually fail or be screwed up pretty easily.
What chain of logic led to them saying "no, we can't just flood the room with nitrogen"
I get this sounds a bit morbid but it's genuinely something that just doesn't make sense to me. As if someone decided executions could only take place with everyone carrying a rubber duck.
@C.S.P.
"1) Any Prosecutor, Policeman, or other official that can be shown to have tampered with a capitol case in order to obtain a conviction, should be put on trial for conspiracy to commit murder. Suppress evidence of innocency so your office can look 'tough on crime'? Well then, let's see how YOU like death row."
Thank you. I've been saying this for years–there are crimes worse than murder, and this is chief amongst them. Using the apparatus of the state (MY state) to harm or kill an innocent (or for-all-they-know innocent) person is way worse than murder. I can empathise with some murderers, but not with that kind of cold-blooded evil.
And for what it's worth, God agrees with us about the severity of this. That's why he put it on his top-ten list. Not simply lying (as many people think) but perjury against someone.
@nhrpolitic13:
Bullshit. But everybody here can read what both of us wrote.
Your starting argument was artful, leaving out the fact that when death penalty opponents are claiming a method is cruel and unusual, they are, in fact the ones who are not arguing exactly what they believe, which is that the death penalty itself is cruel and unusual. But that misdirection was couched in a very long paragraph, which is why I focused on the one after it. Here it is again — your very own summary paragraph, with your very own original bold included:
I even included that in my first comment (but bad on me, I forgot the bold), and here you are still claiming that you're not taking sides, that you're just laying out the arguments. But when you say "The driving force behind change isn't x; it's y", you're doing much more than saying "here are the arguments." Especially when you are claiming that the people who really just want the status quo are the ones driving the change.
It's absolutely true that a change in methods is not what the death penalty opponents wish for, but it's disingenuous to argue that someone who argues that a particular method of execution is inhumane is not agitating for change, or that one logical outcome of that agitation (even if not the one desired by the agitator) would be to change execution methods.
I'm not angry; I'm explaining that I don't respond well to vacuous arguments wrapped up as specious logic that are designed to try to make me angry. The fact that you think you've made me angry says much more about your worldview than mine.
And it's disingenuous of you to write that as if you aren't contributing to the disingenuousness.
If you're going to make an emotional appeal, then fucking do it. Just leave out the pseudo-logic if you want to convince me. Some of us have to use the real stuff every day.
Like putting folks in a cage for extended periods of time is humane. And you should include the labs and more importantly the lab techs on that list. After all, most juries take to lab data like ducks to water… Well, the lab report says it was him… I mean okay, so a thousand people say he was five hundred miles away at the time and for a day before and a day after, but the lab report…
On the other hand, a m134 at 67 .3008 rounds a second would certainly cease life functions rapidly. And attendance by citizens after their majority at at least one of the first three available events either in person or virtually should be mandated as much as jury duty. After all, if the state kills in the name of it's citizens, those citizens should have to witness at least once in their lives. Better sooner than later…
Just bring back public hangings, if you're going to have a death penalty. Citizens should have it rubbed in their faces what is being done by their popular will.
Better yet, just abolish the death penalty and relegate it to history and barbaric regimes, where it belongs. Our justice system is sufficiently screwed up that innocent people can and DO get executed, and that is intolerable. The death penalty has the problem of being irrevocable if the state later finds out it was wrong.
I'm also of the opinion that people wrongfully imprisoned for decades before it comes out that they are innocent are entitled to a whole lot more than an open door to walk through. Their lives have been ruined, and they'll never get that lifespan back. At the very least, the state owes them massive reparations–enough for them and their families to live comfortably for the rest of their lives, as a start.
That's weird…they were so fair-handed and middle-of-the-road during the election….
@Dictatortot:
Some of us have moral and religious reasons for making the death penalty as difficult as possible, prior to abolishing it. To quote the USCCB, "In Catholic teaching the state has the recourse to impose the death penalty upon criminals convicted of heinous crimes if this ultimate sanction is the only available means to protect society from a grave threat to human life. However, this right should not be exercised when other ways are available to punish criminals and to protect society that are more respectful of human life."
With the creation of supermax prisons, I can conceive of no reason to use the death penalty.
===
@Cecil:
Well, we might want to look at other countries that do their jails more humanely. The purpose of prison is to remove the crims from society; isolation does not have to be uncomfortable.
Is it true that before sticking the needle in, the executioner sanitizes the injection site? If so, why?
My apologies, nhrpolitic13; I didn't mean to suggest that. I mean to state it bluntly, in no uncertain terms. There is no method of execution that opponents won't see as inhumane, or the practicalities of which they won't try to hobble until it becomes inhumane in practice. I am not impressed by cases where prisoners undergo unnecessary pain/suffering because of the restrictions that eliminationists wanted the authorities subjected to.
As it happens, Castaigne, some others of us have moral and religious reasons to consider an unrequited or half-requited death an atrocity that cries out to heaven, and that a social/moral order that makes such an atrocity the universal condition isn't worthy of the name. The government's empowered to carry out the death penalty because that's better for public order and public safety than entrusting it to private hands is, with all the traditional ills of vendetta, lynch mobs, private passions, and lack of evidentiary standards. But those are the choices.
@Dictatortot:
Catholicism does not recognize your stated moral imperative for the blood vengeance. Sounds to me more like sharia-law-style "honor killings" and "blood vendettas" to me. You coud always just choose not to kill and let the criminal be imprisoned for life, shut away from society.
And I'll work for that, because to work for otherwise would be the morally wrong thing for me to do as a Catholic.
I, on the other hand, tend to regard Catholicism and morality as compatible … but what do I know? You, however, might want to look up a greater range of serious Catholic thought on the issue. Bellarmine, Aquinas, and Alphonsus Liguori, just for starters, all seemed to agree that capital punishment in the cause of retributive justice was wholly legitimate. Modern natural-law theorists like Ed Feser and Steven Long also make compelling cases that your Catholic formation might be a tad … mushy.
@Dictatortot
Apparently not much about the teaching of the Church.
Quoting the catechism of the Catholic Church, #2267,
Based on these precepts, Pope John Paul II and Pope Francis have spoken out against the death penalty.
I am aware of what the catechism says, GWLTU. I am also aware that the catechism is an attempted encapsulation of the relevant Scriptures, Church Fathers, and sacred tradition, and is not, itself, infallible or the last word. And I submit that neither the letter of the catechism, nor the personal, non-magisterial opinions of recent Popes, outvotes what the Church has had to say on the subject over the preceding millennia.
It's always interesting to me when Christians argue about beliefs because frankly you can interpret the bible anyway you please but to see Catholics who have specific guidance and firm policies on just about everything arguing about any Catholic policy is quite interesting because the church considers not following these policies to be heresy.
The death penalty is wrong, it's wrong because innocent people are put to death, and it's wrong because the state shouldn't commit murder in everyone's name, especially where lifetime incarceration is not just feasible but easily and cheaply implemented. But the ironic thing is that the death penalty actually provides a far easier prison experience, yet those in favor of state sponsored revenge frequently ignore this.
I'd personally rather see these prisoners put into a nice supermax prison where they can spend the rest of their lives in an 8×10 box and rot away for their crimes. They can't harm anyone anymore, the punishment is fit and in the event we find out 20 years later that they were railroaded and are actually innocent we can undue some of the damage the state did to them. Our justice system is composed of human beings and as a result will always be flawed in some percentage of cases with the effect of innocent people convicted of crimes they didn't commit. No innocent person should ever be murdered by the state and it's not worth that risk just so we can execute a few monsters.
Ken, IANAL and I know even less about US law than I do about law in my home country. That said…
Surely the Court has to give some consideration to both the inherent risk of a particular method of execution being able to be fucked up and the actual practice of that method?
If a methodology is inherently prone to producing a tortuous outcome, or if the State through malice or incompetence tends to conduct executions in a tortuous manner, then describing something as misadventure or mishap is actually a fig leaf for something much worse.
That aside, much as there have been times where I have had the visceral reaction that the death penalty is warranted, it is my staunch belief that no civilized society should ever execute anyone.
I have long thought that any standard medical gaseous anesthetic would work well as execution material. It poses no hazard to bystanders if the condemned is wearing a mask flooded with nitrogen. Nitrogen is better being much less expensive and easier to obtain. It also completely removes the medical profession and its suppliers from the execution process. If done in a special room with one or more attendants only moderate ventilation is required.
At the very least this removes cruelty from an execution. Anti death penalty crusaders will have to focus on the death penalty itself rather than the method.
I suspect that at least some of the reluctance toward using gases as a method of execution (aside from some logistical aspects) is that the modern day optics of a literal "gas chamber" probably isn't all that great.
The optics of a N2 gas chamber looks good to me.
Well, technically inert gas asphyxiation would use the absence of a certain gas to cause death, as the gases used are not harmful. Partial evacuation of the chamber would do the same, although this would require an actual pressure vessel.
Then again, I agree with Trent's last paragraph. Locking people up for extended periods of time accomplishes many of the same goals and is easier to revert if innocence is proven later.
Compare to the optics of being strapped down to a table with someone slowly poisoning you to death.
Or strapping you down and cooking you with mains current.
Alternative option: Hypoxia.
The person goes out not giving a fuck about anything. Probably not even reaching for the oxygen line even if one is available(which there wouldn't be)
http://www.wimp.com/hypoxia-when-the-brain-is-deprived-of-adequate-oxygen-supply/
When people say that we can't allow it to look like a gas chamber it's like "we'd prefer to possibly actually be cruel than to kinda look a little bit like we're actually executing someone while we're executing someone"
@Dictatortot
The Church has not changed its position on capital punishment, which is that the state has the authority to take life when the benefit to society outweighs the harm.
Given the current state of the justice system in the United States today, I submit that capital punishment is not appropriate.
Arguments have been raised that the death penalty is necessary to provide retribution for heinous crimes, that there is no qualitative difference between a prison sentence for marijuana possession and a prison sentence for murder. I believe such arguments overlook the differences in duration of sentence and conditions of imprisonment.
@Trent
With regard to heresy, you are misinformed. It is a serious matter involving an obstinate denial of really important stuff.
Maybe this link will help you understand: The Great Heresies.
So it's not cruelty if there's suffering, it's only cruelty if you MEANT for there to be suffering. That's some interesting legal acrobatics there. I wonder if it applies to other fields.
If I launch a firework, and your house burns down when the wind blows it onto your roof, but I didn't MEAN for your house to burn down… are you homeless? Or do you still have someplace to live, since I didn't mean to take your home away?
If a restaurant serves food that's a bit too hard for your child to chew, and your child chokes to death, is your child alive anyways, since the restaurant didn't MEAN for your child to choke?
If a company dumps waste products into a river, but doesn't MEAN to pollute it beyond potability, is the water still safe to drink?
If a cat spazzes around your apartment, but doesn't MEAN to make you angry, are your drapes torn up or not?
I mean… how many things are altered by intention? If it stops being cruel just because you didn't mean for it to be cruel, what else can change due to not intending it to happen?
@ Trent:
I don't get it. Are you against the death penalty because you think it's too cruel, or because you think it's not cruel enough? It's wrong to kill someone, but it's not wrong to let them "rot away" in a "8×10 box" for their whole lives?
This sort of self-contradictory logic is a sure sign that someone is rationalizing (the logic is built to suit the conclusion) rather than reasoning (the conclusion follows from the logic).
Your first paragraph is right on, but the Church also teaches that weighing benefits/harms to society is a prudential question on which individuals of well-formed conscience may validly disagree. Which brings us to my respectful, but ironclad disagreement with your second paragraph.
Re Catholic teachings:
The harm of executing innocent people far outweighs the dubious "benefit" of executing an evil person vs. locking them up in a SuperMax prison. What "benefit" is there to execution? Revenge? That's not an option or a benefit for Christians: "Vengeance is mine, sayeth the Lord". I can't see any other imagined or real "benefit", let alone any that outweight putting innocent people to death.
Given the current state of the justice system, the death penalty as it is practiced in the U.S. is utterly immoral and should be abolished.
Of course revenge is an option. The verse you cite does not imply that justice and equity are things that human governments are forbidden to concern themselves with–quite the contrary; it's their job because it's not right for individuals to mete it out, rather than the civil powers. In fact, requital is fundamental to a justice system worthy of the name. A "justice system" that rules it out has sacrificed its legitimacy to handle such matters, and has betrayed the trust on whom St. Paul asked the readers of Romans 12 to rely.
Such a wholesale rejection of its underpinnings is more serious, in my judgment, than a mistaken execution would be. Better that than a polity where the rights of every single innocent is explicitly no concern of the law's.
I"m against the death penalty because it's wrong. I"m sorry you have constructed these categories of opponents and you have difficult shoving my position into one but my position is entirely consistent. I listed the reasons I'm against it and none of them had anything at all to do with cruelty. Maybe you should accept that there are reasons to oppose the death penalty that don't revolve entirely around cruelty. Certainly acknowledging such positions might go a long way to helping you understand the debate a little bit better than your categorized argument does.
@TheAngryPhilosopher
I see no self-contradictory logic. Trent never stated that he thinks the death penalty is too cruel. He states that it's wrong that we have executed innocent people. You may disagree with either the factual assertion or his judgment. He also states that it's wrong for the state to commit murder in everyone's name. Now, you seem to be reading an implied "because it would be unfairly cruel to the guilty criminal" in that, but to me it appears that is less a case of you making a reasonable inference from his statement, and more one of you imputing a position onto him that fits more nicely with the counter-argument you wanted to make.
I don't agree with Trent's position on that last bit, but as someone who grew up going to church, I think I can understand it. I am guessing that you equate "somebody deserves X" with "it is morally right for us (or our government, or someone) to do X to that guy." Not everyone feels the same way. The Bible teaches us than an evil person, an unrepentant sinner, deserves the eternal torture that awaits him in Hell. However, it doesn't really tell us that we should go out of our way to send him there sooner, or to give him a taste of it on earth. To do so is to usurp God's role as the one who sits in judgment. But even moving outside the Christian tradition, there are a lot of people who believe that killing in cold blood is an inherently immoral act, and even if the victim was a bad person who had it coming, there's an evil stain to the act that can't be washed away.
I personally am 100% behind putting down the most dangerous criminals, in the abstract. In terms of cruelty, I am strongly in favor of cruelty when it comes to punishing criminals, and if it looks like someone might prefer an execution because he thinks it'll be easier on him, or because he thinks he'll be getting a bunch of virgins for it, I am quite happy to stick him on suicide watch until he dies decades later, half-mad from isolation.
In practical terms, I think we need to seriously get our shit together before we proceed on our current course. Results speak for themselves: We executed numerous convicts who DNA exonerated years later. In some cases, it means that even with our high standard of proof for criminal cases, means, motives, opportunity, and circumstantial evidence gave us a bunch of false positives. In other cases, it means the prosecution and the police were more interested in a getting a conviction than getting the right conviction. We should also remember that many people, including some in positions of power in the criminal justice system, objected to the guys trying to figure out how many of our past executions were mistakes. I can understand their reasons: it can undermine faith in the system and in police, as well as the perception that the guilty are punished and the innocent are safe. However, if people value these goals so much that they outweigh the need to know how often we've executed the wrong guy, those people have no business executing anyone.
@Patrick
Care to elaborate on that comment? Simple logic suggests that the death penalty opponents wouldn't want to help create means of getting around their own arguments. Your logic somehow putting the moral responsibility on them is akin to blaming a woman who fought off her attempted rapist–rather than killing him or getting him arrested–for when the rapist later attacks a younger and more vulnerable victim. Yes, in terms of pure causality, her resistance was a but for cause, but I would still put 100% of the blame on the rapist.
I am strongly pro-choice, but I don't see anything "two-faced" about it. (In fact, it's such a stretch that I would ask you to please look up the definition of "two-faced," and if it actually means what you think it means, I would ask that you please more clearly explain how you think it applies here.)
If you disagree with someone on something, and you think you're right and they're wrong, and you're not an arrogant asshole, then you're assuming one of two things. 1) You got the answer right, and they didn't, because you were privy to facts they never considered, or 2) you were right because your reasoning was more sound. In order to convince people you think fall into the first category, the most logical–and for that matter, the most respectful, intellectually honest–thing to do is to confront those people with information you think they haven't considered. It is our moral responsibility to acknowledge the consequences of our actions. If you support gun control, you should absolutely be forced to acknowledge that some people died because they didn't have a means to defend themselves; if you oppose gun control, you should absolutely be forced to acknowledge that some people died because it was too easy for a deranged individual to get a gun.
You seem to be arguing that we have some sort of right to be enabled in our moral cowardice, and putting the blame for the actions of the cowards on those refused to acknowledge that right. I reject that. Even if some positions are 100% right, they are rarely 100% without negative consequence. If you can't support a position without pretending the negative consequences of that decision don't exist, you shouldn't be taking that position.
@IforgetMyName:
I already did a bit here here. But you obviously couldn't be bothered to read that.
(For the sake of the rest of this comment, whenever I refer to "opponents" or "proponents", I am referring to "activists". Not the people who think the death penalty is or isn't a good idea, but the ones who have gotten up and done something serious and political about their beliefs.)
Simple logic suggests that death penalty opponents wanted to force all executions to be by a method (lethal injection) that they could then halt (by restricting drug supply). But the problems with attempts to claim fait accompli before you have sufficiently moved the political needle are self-evident. For example, the reinstatement of the firing squad in Utah shows that death penalty proponents don't mind a bit of gore, and the selection of that method by some of the people on death row show they don't mind it either.
This is a god-awful analogy. Death penalty opponents aren't the ones being raped or killed, and they themselves seem more than happy to sacrifice a few death-row inmates to terrible deaths for the cause. Botched execution? Why that's because we won't let you get the drugs we made you use and then made unavailable, so you did something else. Stop that!
As others have pointed out, nitrogen would be painless and practically foolproof. Yet we don't have that. Is that because death penalty proponents require a violent death? (Obviously not, since they went along with "painless" lethal injection, and in fact the entire initial claim I was objecting to was that the proponents were "driving" the sanitization.) Or is it because death penalty opponents realized that it's impossible to control the supply of nitrogen, so decided to agitate for a method they thought they could shut down? I'm just here on the sidelines, but that seems much more plausible to me.
See, the thing is this. Some people got together and decided that 'x' needed to be executed. They didn't really care how it was done, they just wanted his life ended. Other people said "oh, but you need to do it this way; that way is soooo inhumane."
But now the first people have figured out that the other people were lying. They weren't choosing the most humane way, at all. They were choosing a way they thought they could stop later through a back-door.
And now those other people are claiming that those first people are as bad as rapists, too!
That'll go over really well.
Believe it or not, people are sometimes obstinate and illogical, and can grow resentful when other people try to pull a fast one on them. I actually think the death penalty is, at least certainly, as implemented, a bad idea, for the same reasons that others have voiced around here. Yet I have nothing but sympathy and respect for those who want to insure that, as long as the state is in the business of killing, it has the means to do so, and I have nothing but contempt for those who think these clever hacks and calling the rest of the population rapists are useful ideas. You're probably still butt-hurt and mystified about your current president, aren't you?
Yes, we've all seen the way you argue.
And yet, you simultaneously claim that the current situation is 100% caused by death penalty proponents (the "rapists"). You also claim to know about and believe in simple logic, but you fail that test miserably as well.
Again, I don't personally believe we should be killing people. We obviously get it wrong a lot of the time, and the cost of lifetime incarceration for those times where we have obviously gotten it right is down in the noise. But I have nothing but contempt for the argument that death penalty proponents are the ones driving the sanitization. If they were, they probably would have thought harder about it, and we'd probably have been using nitrogen decades ago, because we wouldn't have had the hidden agenda of resorting to a method that could be shut down by removing the supply of the death-causing agent.
Quite the opposite. I'm saying that people like you saying that death penalty proponents are the ones who are doing that are wrong. Death penalty proponents are comfortable in their skins. Take away the drugs for lethal injection? No problemo — bring back the firing squad. No, it's the death penalty opponents who claim to be making executions more humane who are lying through their teeth, and causing the same excessive agony they claim to want to prevent to those facing execution.
My thoughts exactly. Why don't you go back and read carefully, and see if you can figure out where I said I supported the death penalty?
@IforgetMyName:
Forgot to address this properly. Yes, claiming to be against abortion, and then working really hard to remove all access to birth control is two-faced.
Claiming your opponents are illiterate imbeciles seems to be another hallmark of the current progressive agenda. How's that working out for you?
@Dictatortot:
Catholic doctrine on the death penalty hasn't changed since the 1880s. With current science, technology, and the ability to avoid having to kill people, I don't see it changing back to "Kill them all; God will know his own." anytime soon.
Yes, the TradCaths who want us to genocide the entire Muslim world in a new Crusade To End All Crusades like to use the same arguments. I frankly invite such sedevacantist nonsense to kiss my ass.
The Church of the preceding millennia, as opposed to the Church of the current doctrine of the past century, also recommended we hack, maim, and slay the heretics, wiping out Protestants to the last man. Still support that too? You want to come down to Georgia and we start converting Southern Baptists by the sword, and then burning them alive when they refuse as the Holy Fathers of olden days demanded?
I've got a feeling you'll decline.
@GuestPoster
Makes sense to me. If you fire off a firework and it flies off course, hits your neighbor in the face and kills him you aren't guilty of first degree murder unless you intended to do it. He's still dead but you didn't intend to kill him. You might be guilty of other crimes as a result but not first degree murder.
If an asteroid strikes a prison and kills everyone inside that doesn't make the government guilty of killing everyone inside even if they would still be alive had they not been in prison. it doesn't make them still-alive but there was no intent on the part of the government.
Intent often matters in law.
If someone tries their best to perform an execution humanely but screws up and unintentionally causes suffering that's different to someone who decides to cause suffering.
Trying to pretend that everything is based on consequentialism is a great way to pretend your opponent is an irrational nutcase but a poor way to be rational yourself.
@Dictatortot
No problem.
I would use "retribution" rather than "vengeance."
@Castaigne
Who might those horrible people be? Names? Better yet, links.
Even if those horrible people exist, they probably take communion at mass. I take communion, too. Does that make me one of them? They also probably believe in the law of gravity. Should we throw that out as well?
Guilt by association makes for a crappy argument.
Because they got X wrong, obviously they're wrong about Y. Following that line of reasoning, I guess we should throw out the Apostles Creed also.
Oh, and the Church has gone to great lengths to explain that its teachings of capital punishment have not changed. What has changed are societal conditions that make it unnecessary.
The rhetorical flourish in your post doesn't hide the weakness of its arguments.
There was never a coordinated effort on the part of Americans that oppose the death penalty to get executions switched to lethal injections so they could then ban the drugs.
What happened was the companies that produced the drugs were purchased by European companies, Europe believes the death penalty is a crime against humanity and as a result European activists and their governments pressured these now European owned drug companies to stop selling the drugs to states for lethal injection. That's what dried up the market for these drugs, it was not done by anything American anti-death penalty activists did.
One of the consequences of a global pharmaceutical industry is that those companies owned outside the US may not wish to participate in an act they think is a crime. This is result of the US still executing criminals when the rest of the western world recognized it as barbaric and stopped doing it decades ago.
Not at the start, I'm sure, but they have certainly opportunistically piled on. The debate in Utah is paradigmatic; there are people saying "no problem, we'll go back to the firing squad" and others saying "Wahhhh! No you can't do that! No fair."
That's a bit simplistic. See, e.g.
http://www.sfchronicle.com/crime/article/Death-row-drug-quandary-makers-resist-supplying-6565314.php
Globalization is certainly a key part of the issue. But it's not that all suppliers are foreign; rather it's that for any supplier of any size, global markets are much more important than the small amount of business they might get from executions.
Why not just repeal the 8th Amendment? I'm not aware of it doing any good that shouldn't rightly be done by a different portion of the constitution (i.e. Justice White's point in Robinson v. California), and it does loads of harm (all the death penalty cases).
If we're so worried about the harm the 8th amendment does to prosecutions we should just throw out the 4th, 5th and everything else that prevents the government from getting convictions. After all the 8th protects from excessive bails and fines as well, both things we might as well throw out and then we can bring back the debtor prisons. Then maybe if someone builds up too much debt we can just give them the death penalty. I'm sure if we started giving the death penalty for everything crime would just stop, just like it did when England did the same thing during the Victorian years and applied capital punishment to just about everything including writing a threatening letter. I'm sure that just stopped crime in it's tracks murdering all those "criminals".
http://www.dailymail.co.uk/news/article-1203828/The-222-Victorian-crimes-man-hanged.html
If anything the 8th isn't strong enough, the founders shouldn't have used "and", it should have been "or" like many of the states changed it to in their state consitutations. This country needs to stand up and realize that killing people isn't right, it's not right when someone does it to their spouse and it's not right when the state does it as some sort of glorified revenge. We have the means available to incarcerate people safely for life with no chance of ever escaping. That way when we find out people like the central park 5 were railroaded on the backs of coerced confessions after the real murderer came forward we can properly free them and at least let them live the rest of their life in freedom. We've killed hundreds of innocent people in this country while the real perpetrator walked free and it's disturbing how many people cheer lead the killings.
And since you bring up Ronnie Lee Gardner, the last inmate in Utah (my home state) executed, the man was a total piece of shit and he probably deserved to die. But I don't think the state should be in the business of murdering him. I think it would have brought far more justice to let the guy spend the next 60 years in prison in an 8×10 staring at a wall while in a population of people as vicious as him. That's justice. Not putting 7 bullets into his chest after a few years in his own private cell at nearly twice the cost of incarcerating him till he's old and feeble.
This is because we radically differ in our precepts. Your assertion notwithstanding, I and other citizens believe that in the proper situation, killing is indeed right–not only right, but morally required of us, critical to a justice system's enumerated functions, and integral to the rule of law. These considerations are not less weighty than the possible miscarriages of justice you describe, and it's not okay to enforce a blanket miscarriage of justice (forbidding any rightful execution) to avoid a particular miscarriage (a wrongful execution).
Trent, neither the ease or difficulty of obtaining convictions, nor the accuracy of those convictions, have any bearing on the appropriate consequences of convictions. There's nothing inconsistent about opposing the 8th Amendment's limitations on sentencing while supporting (or even wanting to strengthen) the limitations that Amendments 4 through 7 place on police and prosecutors. Whether or not any particular person's guilty of a specific crime and how we determine that, which is what Amendments 4-7 address, should have no bearing on how we treat everyone determined to have committed that crime, which is what Amendment 8 addresses. After all, we can determine the appropriate sentence a priori. Guilt or innocence can only be determined a posteriori.
As always I am in awe of your ability to isolate a single question and remain focused. You acknowledge the larger messier context but don't let your own words become messy.
Absurd! Gorsuch is complicit for interpreting the law as written? Should judges be free to rule on moral grounds instead of legal ones? As long as their morals agree with yours, it's okay? Would you have judges do the job of the legislature? If so, you're no champion of justice. 'We are a nation of laws, and not of men.'
Or you've found a flaw in his legal opinion? I'd love to hear it.
"Last year they started doing the hangings in a shed, like they were ashamed of them."
If you have to pretend you aren't doing something maybe you ought not to be doing it.
I disagree with this post on many levels.
First, I feel like you are misconstruing … or perhaps misinterpreting the point in Buzzfeed's article. Your personal view on the merits of sanitizing the death penalty seems to be skewing your perspective and kind of distracts from the larger point. While you may not agree, subjecting a human to intense or prolonged pain is widely viewed as cruel in our society (and at least to some extent by courts). The problem isn't the language, the problem is applying the language to the facts of the case. While perhaps the state didn't act with malicious intent to cause pain, there is certainly a valid argument that the state acted with willful disregard for solid evidence that their protocol was likely to have the intensely negative results that manifest.
Beyond the part you take issue with, the article goes on to highlight that this judge also signed on to an opinion establishing use of the specific drug and procedures that were implemented in the Lockett execution. IMO, that is exceedingly material and forms much of the article's argument. You may not like the verbiage they choose to highlight, but Buzzfeed accurately establishes that this guy not only approved Oklahoma's drugs and procedure … but then turned around and ruled that officials who basically tortured a guy to death under his earlier rulings were completely fine because nobody could possibly have seen this coming (and let's face it, the "science" he based that first ruling on was an obvious joke).
I would say these two rulings put him among a select handful in the judiciary who have had the opportunity to directly craft the hue and shape of our (in your words) dishonest systemic implementation. If I understand our system correctly, the vast majority of judges would simply be bound by his dictate. Doesn't that kind of move him up in the ranks of responsibility for the state of things from the vast majority … at least a little?
But in the end you blaze right past the biggest point of them all. Nowhere does Buzzfeed say this guy is worse than any other judge. They aren't focusing on him because he's worst. They are focusing on him because he's been nominated for a lifetime appointment to the damn Supreme Court. Even if the article ultimately only shows him to be no more dishonest than a vast majority of the judiciary … isn't that an irresponsibly low bar for vetting a SC justice? Dishonest is dishonest.
I would argue that Buzzfeed is not wrong to suggest we try and select a judge from the rare minority in the judiciary who are *less* dishonest than this bozo. Is that controversial take among the lawyerly these days?