Even worse is Alito’s conclusion that death by torture does not violate the Eight Amendment unless defendants can identify a safer method, which Sotomayor correctly describes as “indefensible”. Even assuming for the sake of argument that the US constitution permits the death penalty in the abstract, it does not guarantee that states will be able to perform executions in every circumstance. If medical personnel and drug companies – making free choices – decline to participate in the machinery of death, this does not mean that the Eight Amendment ceases to apply. As Sotomayor explained:
“But a method of execution that is “barbarous,” or “involve[s] torture or a lingering death,” does not become less so just because it is the only method currently available to a State. If all available means of conducting an execution constitute cruel and unusual punishment, then conducting the execution will constitute cruel and usual punishment. Nothing compels a State to perform an execution. It does not get a constitutional free pass simply because it desires to deliver the ultimate penalty; its ends do not justify any and all means.”
Her argument is unanswerable. Boiling people in oil or killing the on the rack would not suddenly stop being cruel and unusual punishment if they were the only methods available. It is true that the condemned prisoners in the cases considered by the court committed genuinely heinous crimes – one broke an infant’s back with his bare hands; another raped an killed an 11-month-old girl, as Alito was sure to mention in his opinion. Fortunately, even if Oklahoma could not execute these prisoners a remedy exists that is good enough for most American states and every other liberal democracy in the world: imprisonment.
It’s worth comparing the careful, devastating dissents written by Sotomayor and Kagan — both of which rank with Ginsburg’s evisceration of Shelby County — today to Scalia’s witless ranting last week. The fact that Sotomayor was described as unqualified by pundits who take Alito’s (identical to Sotomayor’s) credentials for granted and consider Scalia some kind of supergenius is about as clear as a racist and sexist subtext can get.
It’s not a coincidence that today was the day Ginsburg and Breyer announced their disinclination to continue to tinker with the machinery of death. If this is what the death penalty will be, holding the death penalty per se unconstitutional will become the default liberal position.