The Death Penalty at the Supreme Court

March 14, 2019


Is it constitutional to execute an inmate who doesn’t remember the crime he committed? Or a person who might suffer excruciating pain during execution? These questions were raised by cases that came before the Supreme Court this term; joining host Jeffrey Rosen to debate them are John Bessler of the University of Baltimore School of Law and Richard Broughton of the University of Detroit Mercy School of Law. These two scholars consider the death penalty’s past and present, find points of agreement between death penalty abolitionists and supporters, and predict what the new makeup of the Court will mean for the future of capital punishment.


An early transcript of the podcast can be found below. The text may not be in its final form, accuracy may vary, and it may be updated or revised in the future.


John Bessler is associate professor of law at the University of Baltimore School of Law where he teaches courses in capital punishment, civil procedure, international human rights law, and lawyering skills. He is of counsel at the law firm Berens & Miller, P.A. and is an adjunct professor at the Georgetown University Law Center.  In 2018, he was a visiting scholar/research fellow at the Human Rights Center of the University of Minnesota Law School, and was previously a civil litigator in private practice. He has written nine books, six on the subject of capital punishment—including most recently, The Death Penalty as Torture: From the Dark Ages to Abolition.

Richard Broughton is associate dean for academic affairs and associate professor of law at the University of Detroit Mercy School of Law where he teaches courses in constitutional law, capital punishment and criminal law and procedure. He previously served in the Criminal Division of the Justice Department, where he advised senior Justice Department leaders and federal prosecutors on issues of federal criminal and constitutional law arising in federal death penalty matters, and as Assistant Attorney General of Texas for Capital and Post-Conviction Litigation.

​​​​​​Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” 

Additional Resources

Our Interactive Constitution is the leading digital resource about the debates and text behind the greatest vision of human freedom in history, the U.S. Constitution. Here, scholars from across the legal and philosophical spectrum interact with each other to explore the meaning of each provision of our founding document. 

The Eighth Amendment by Bryan A. Stevenson and John F. Stinneford

This episode was engineered by David Stotz and produced by Jackie McDermott. Research was provided by Lana Ulrich, Jackie McDermott, Ben Roebuck, and Madison Poulter.

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Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the national Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. Today, we focus on the death penalty and the Supreme Court. the Court has heard several important death penalty cases this term, and it recently issued a decision in Madison v. Alabama and will soon decide a case called Bucklew. Here to tell us about these cases and to discuss the future of capital punishment at the Supreme Court are two of America's leading scholars on this important question. John Besler is associate professor of law at the University of Baltimore School of Law where he teaches capital punishment, civil procedure, international human rights law, and lawyering skills. He's of counsel at the law firm Barens and Miller. He also teaches at the Georgetown University Law Center and has written six books on capital punishment including most recently “The Death Penalty as Torture from the Dark Ages to Abolition.” John, it's great to have you with us.

John Bessler: [00:01:14] Yeah. Thank you for having me on.

Rosen: [00:01:15] And Richard Broughton is associate Dean for Academic Affairs and associate professor of law at the University of Detroit Mercy School of Law. He teaches constitutional law, capital punishment, and criminal law and procedure. He previously served in the Criminal Division of the Department of Justice where he advised senior justice department leaders and federal prosecutors on federal death penalty matters. He also served as Assistant Attorney General of Texas for Capital and post-conviction litigation. Richard, thank you so much for joining.

Richard Broughton: [00:01:43] Thank you for having me. Happy to be here.

Rosen: [00:01:45] Wonderful. Well let us begin with the Madison vs. Alabama case. The Supreme Court recently by a 5 to 3 vote addressed the question of whether the state can impose the ultimate penalty on a condemned prisoner who can't remember his crime because of dementia and buy a 5 to 3 vote, an opinion by Justice Elena Kagan joined by Chief Justice Roberts, a majority of the Court said that lack of memory of a crime can't be the test and isn't the test, nor does the answer turn on the reason for the lack of memory, whether it's mental illness or age related dementia. Justice Kagan wrote that what's important is whether the prisoner has a rational understanding of what's happening to him and why, not whether he has any particular memory or any particular mental illness. Richard, why don't we begin with you? Can you tell us a bit about the facts of the Madison case and about Justice Kagan's holding?

Broughton: [00:02:44] Sure. So this was the case out of Alabama. Vernon Madison was convicted of capital murder in Alabama after killing a police officer after a domestic dispute and years later his mental condition began to deteriorate and he developed a condition known as vascular dementia. So he claimed that he could not recall committing the crime for which he was convicted and sentenced to die, and he argued that his execution by Alabama would violate the Eighth Amendment ban on cruel and unusual punishment, and so in deciding the case, the Court had to refer back to a couple of prior Eighth Amendment precedents - a case called Ford versus Wainwright and another case more recent called Panetti vs. Quarterman, which was the case out of Texas, and as you said earlier in those cases the Court developed this standard which said that the state couldn't execute someone whose mental state was so distorted by a mental illness that he or she lacks a rational understanding of the state's reasons for executing that person. So based on that particular standard, the Supreme Court in this case, by a closely divided vote, decided to remand the case back to Alabama for consideration of Madison's condition in light of that, in light of that Eighth Amendment standard articulated in Ford and Panetti.

Rosen: [00:04:15] John, Justice Elena Kagan was quite vivid in her opinion in the case. She wrote, “Do you remember your first day at school? Probably not. But if your mother told you years later you were sent home for hitting a classmate, you'd have no trouble grasping the story, and similarly if you somehow blacked out a crime you had committed but later learned what you done, you could well appreciate the state's desire to impose a penalty.” Tell us about the Constitutional basis for her holding that the central question was whether a prisoner has a rational understanding of what's happening to him, whether that represents any kind of advance in the law or an application of existing law, and also why Chief Justice Roberts joined Justice Kagan and what the three dissenters led by Justice Alito said?

Bessler: [00:04:59] Yeah, I mean it's a very interesting opinion. First of all the oral argument that Bryan Stevenson did was very interesting. I mean the facts of this case, obviously very horrible crime as Richard articulated, but what we have here is somebody now on death row who suffered a series of strokes, the last one I think in 2016, and it's the- vascular dementia is a progressive condition, so this is a person who does not, you know, in they're in a very small cell but does not know to use the same toilet that's in his own cell, is incontinent, can't recite the alphabet past the letter G, and MRI shows there's dementia, he has slurred speech, is legally blind. So the first issue that Elena Kagan's opinion addresses was whether or not it's constitutionally consistent with the Eighth Amendment to execute someone who simply does not remember the crime, and the Court concluded that it is constitutional and in fact at the oral argument, which was very- would be very interesting for people to listen to, there was a long discussion about how criminal offenders often say that they don't remember the crime. Now here, of course, we have somebody that clearly- the crime was committed 30 years ago and there's been a lot that's gone on since then, including this development of vascular dementia. And so one of the things that people talked about the oral argument for example was Alzheimer's and dementia and the progressive nature of those diseases. So the first thing is the Court says no, it's okay to actually execute somebody who doesn't remember, but then the Court went on to say, but you cannot execute someone who does not have a rational understanding of why they're being executed, and this is really an extension I would say of what the Court discussed in Panetti vs. Quarterman. In that case the Court was talking about somebody who had gross delusions stemming from a severe mental disorder, and in this case, we're talking about this idea of dementia. And so there is an extension of that principle from, going back to the Ford case which said that the insane cannot be executed, that was a case from 1986, and the Panetti case was in 2007. So we have sort of a development of the law. And there's actually been a lot of case law recently that deals with, in the death penalty context, in this issue of where people have either intellectual disabilities or some sort of intellectual or mental issues. So the Atkins versus Virginia case in 2002 - it also said that it's it's unconstitutional under the Eighth Amendment to execute those that have intellectual disabilities. So the dissent was actually focused in large part on how the- it felt that the majority had not followed the rules of the Court and had been taken up an issue which the dissenters felt they should not have taken up. I think there was a lot of back and forth between the majority and the dissenting opinion on that score. The majority opinion felt that these issues were squarely within the issues that the Supreme Court has granted cert on, and so they were willing to take up these issues.

Rosen: [00:08:22] Richard, as John says, Justice Alito's dissent focused on whether- the question of whether the defendant could understand his crime was a new issue plead below or not; Justice Alito insisted that the original pleading focused merely on whether the defendant remembered the crime. And you both talked about the Panetti case from 2007. That was a 5-4 decision written by Justice Anthony Kennedy who's now retired. So tell us more about the breakdown of the Court. Is it significant that Chief Justice Roberts who dissented in Panetti joined Justice Kagan here? And what does that say about the future of the death penalty at the Supreme Court?

Broughton: [00:09:05] That's a really good question. I think that we don't know yet what kind of death penalty future that we're going to see on the Court. My sense is that Chief Justice Roberts may be positioning himself sort of where Justice Kennedy was in the death penalty cases; that is, he may be staking out a position in these cases where in particularly egregious cases or particularly troublesome cases, he might be willing to sort of depart from the conservatives in the particular case, but broadly speaking he would still, I believe, be very much opposed to judicial efforts to abolish capital punishment. So Roberts I think, and again as I was saying earlier, I think it might be too early to tell, but my sense is based on his previous votes in other death penalty cases, we're not really talking about an abolitionist here in Chief Justice Roberts. We're not seeing someone sort of move from being very much in favor of retaining the death penalty to someone being very much against it. I think we may simply be seeing that in particularly troublesome cases or Indiscreet types of cases or with discrete constitutional issues, Roberts may at least be willing to side with the more liberal members of the Court, but that he wouldn't go too far. I always perceive that to sort of be where Justice Kennedy was on the Court and it may very well be that that's the position that Roberts is planning to occupy, but it's too early to tell right now with Justice Kennedy's departure so recent. So we'll have to- we'll have to see a few more cases to be sure.

Rosen: [00:00:03] John, your thoughts on Chief Justice Roberts. Here's an interesting statistic: in the past year and a half since the confirmation of Justice Kavanaugh, the Chief Justice has joined the liberal justices in no fewer than three 5-4 decisions and most recently ordering a fresh look at the mental competence of a death row inmate, but also the decision blocking a Louisiana law that would require doctors who perform abortions to seek admitting privileges. By contrast in the previous twelve years of his Chief Justiceship, from 2005 to 2017, the chief provided the fifth vote for the Liberals in only four cases. So how significant do you think is vote in Madison is?

Bessler: [00:00:41] Well, I mean, I think that the facts of Madison are obviously very disturbing in terms of, you know, thinking about executing somebody with dementia, but the, you know, I think that Justice Roberts is an institutionalist, I think, and he's concerned I'm sure about the institutional integrity of the Court, maybe particularly in the wake of the Kavanaugh hearings, making sure  that this Court does not look like it's overly political and so one of the things that I think is interesting to think about is, you talk about Justice Kennedy, of course, often referred to the concept of dignity. He did so in the [Obergefell] case, the marriage equality case, but also in this area of law in particular that we're looking at today. The Ford versus Wainwright case back in 1986 - that was actually a plurality opinion that Justice Marshall had authored and in that case, he specifically refers to the concept of dignity which underlies the the Eighth Amendment. I think the concept of dignity of course is one that is not in the Constitution itself, but has informed the Eighth Amendment, has been called the Touchstone of the Eighth Amendment, and so I think in a case like this that could be an issue that you know, Justice Roberts is thinking about and maybe taking up, as Richard said, maybe Justice Kennedy's mantle there a little bit in terms of some of these cases. Justice Kennedy was well known for the issue of intellectual disabilities and was very concerned about the execution of people with intellectual disabilities and that was something he wrote on a couple of times while on the Court.

Rosen: [00:01:03] Thanks for that. Richard, let's discuss that constitutional foundation for the Ford and Panetti decisions and whether you think it was correct. As John says, constitutional dignity and decency were very important to Justice Kennedy and in the Panetti case, he said that the Eighth Amendment forbids executing the insane because to do so would offend human decency in not serving the goals of retribution or, he wrote, the potential for a prisoner's recognition of the severity of the offense and the objective of community vindication are called into question if the prisoner's mental state is so distorted by mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole. So first of all, do you believe that that focus on human decency or dignity is plausibly or correctly routed in the Eighth Amendment? And now that Justice Kennedy has retired from the Court, do you expect a majority of the Court to continue to embrace it?

Broughton: [00:02:04] So it is certainly true as John says that Justice Kennedy devoted not just his some of his death penalty jurisprudence to the concept of dignity, but also as John mentioned other areas of constitutional adjudication. In this particular area, again, I'm not sure how broadly that I would read Justice Kennedy's position on the role of dignity and the meaning of the Eighth Amendment. And the reason that I say that is because, despite the fact that he did take these positions in some of the capital cases and certainly wrote some of the most important decisions of the last couple of decades limiting the scope of capital punishment - I think of cases like Roper versus Simmons, Kennedy versus Louisiana. He was reluctant to go along with broader attacks on the death penalty. He never joined any of these- in any of these more expansive sort of challenges to the per se constitutionality of the death penalty. And for that reason I was always skeptical that Justice Kennedy would ultimately vote for something like judicial abolition of the death penalty. But I think in this particular area, in, you know, the Panetti type cases, in a case like Madison, Kennedy's sort of sensibilities about dignity and its role in constitutional adjudication more broadly I think certainly was given an ample voice. I just don't know how broadly that I would read that particular sentiment with regard to Eighth Amendment cases more widely.

Rosen: [00:03:58] John, a similar question to you. We'll talk about Justice Kavanaugh in a moment. He was not sitting in the Madison case because he wasn't on the Court when it was briefed and argued, but do you believe that the retirement of Justice Kennedy will fundamentally change death penalty jurisprudence, or not?

Bessler: [00:04:17] Well, I mean, I think a lot of people were actually hopeful before Justice Kennedy retired that he might make a more strong statement against the death penalty. In the Kennedy versus Louisiana case that Richard mentioned, Justice Kennedy did at one point say that the use of the death  penalty risked the descent and brutality that the Eighth Amendment was designed to prevent, but he did not in that case, you know, obviously, issue some sort of per se ruling against the death penalty, and say it was per se unconstitutional. The only of the justices so far on the Court who have been willing to take that position where Justice William Brennan and Thurgood Marshall who famously dissented in many many cases and said that the death penalty should be considered a per se violation of the Eighth Amendment. The closest we've seen recently was the dissent in Glossip vs. Gross which, we had actually two dissents in that case, and one of the defenses was written by Justice Sotomayor and she focused on the risk of the physical excruciating pain and actually said that in that case, the method of execution risked- was the chemical equivalent of being burned at the stake. So she was concerned about the physical, torturous aspect of the death penalty in the Oklahoma lethal injection protocol. But Justice Breyer's dissent which was only joined by Ruth Bader Ginsburg, both of those justices actually called for a full briefing on the constitutionality of the death penalty, which would really take us back all the way back to the Furman versus Georgia days where the Supreme Court declared the death penalty unconstitutional which only lasted for four years until Gregg versus Georgia reinstated the use of the death penalty in the United States in 1976. So I think that there is an issue here as to what the retirement of Justice Kennedy means for the Court. I'm not sure we can read the tea leaves so carefully to know. You know, I think we have to consider the context of where America is now with the death penalty and it's- the future is hard to predict, but I think one thing that we have to think about here is the international scale. So in Europe, there's no death penalty. There is no death penalty in Europe any longer. It is a death penalty free zone, and we have a number of the countries throughout the world that no longer use the death penalty. We have South Africa's constitutional court got rid of the death penalty back in the mid-1990s. So I think we have to consider where the U.S. is relation to the rest of the world and we see a lot of resolutions at the United Nations calling for a moratorium on the death penalty. I think the future is hard to predict.

Rosen: [00:06:59] Well, John, your mention of unusually painful methods of execution introduces our second case, which is called Bucklew against Precythe, that was argued on November 6th, and the question in Bucklew is whether Missouri's plan to use an injection of pentobarbital to carry out a long-delayed execution of Mr. Bucklew  might violate the Eighth Amendment because he suffers from a rare disease that, according to his lawyers, means that he could choke to death on his own blood if this method were used, and he suggests that alternative methods including using gas might be preferable. Richard, can you tell us about the facts of the Bucklew case, what mr. Bucklew's claims are, and also about Justice Kavanaugh's interventions in the oral argument?

Broughton: [00:07:53] Sure. So Bucklew is a case out of Missouri. Mr. Bucklew was convicted for the murder of a former girlfriend. He had kidnapped and raped the girlfriend and then wounded a police officer during a shootout. He has a condition, and I'm not a doctor so I might mess this up, but it's known as cavernous hemangioma and what it does is apparently it causes these blood-filled tumors to grow in the upper part of his body. He claims that the execution that Missouri contemplates for him would result in extreme or excruciating pain and that doing so would violate the Eighth Amendment. I think what is interesting about the Bucklew case is he doesn't claim that he can't be executed by Missouri. He simply claims that this particular method of carrying out the execution would be unconstitutional and he has suggested an alternative, albeit an alternative that the state has not used, and that alternative is the use of nitrogen gas or nitrogen asphyxiation. Now another interesting thing about this case is as you mentioned Justice Kavanaugh did participate in the oral argument and had some pointed questions in particular for the the Missouri solicitor general. But one of the things that Kavanaugh was concerned about was whether the creation of this kind of extreme pain would violate the Eighth Amendment; if there was such pain would it violate the Eighth Amendment? And even if there is pain, how much pain would it take before there could be a violation of the Eighth Amendment and the reason that he sort of you know asked it that way is because the Missouri solicitor general seemed to say that even if there is some significant pain, that would not violate the Eighth Amendment, but ended up conceding to Justice Kavanaugh that there is a limit to the amount of pain that the state can inflict, which is to say if it is enough pain that it would no longer be advancing or for the purpose of any sort of legitimate penological goal, that would violate the Eighth Amendment, which is to say again, the state cannot inflict pain merely for the sake of inflicting pain. So that was Justice Kavanaugh's main concern I think in this case.

Rosen: [00:10:47] John you noted that Justice Sotomayor has argued that burning at the stake would undoubtedly be a violation of the Eighth Amendment and that punishments which produce similar pain are also unconstitutional. Justice Stephen Breyer, pressed that point in the oral argument. He said all would agree that burning someone at the stake would violate the constitution so why wouldn't an inmate be able to challenge a method of death that had the same physical sensation for the condemned and Justice Kavanaugh did seem sympathetic to that line of argument. He asked, are you saying even if the method creates gruesome and brutal pain you can still do it because there's no alternative? Tell us about what the Supreme Court has said about when pain can become so extreme that it may constitute cruel and unusual punishment and what the standards are for judging whether that pain exists and how important is that there be some kind of alternative?

Bessler: [00:11:41] Yeah, this was actually an issue that Justice Sotomayor in her dissent in the Glossip vs. Gross case from 2015 actually had an argument with the majority about and that is that the majority opinion in Glossip essentially decided that it was not enough for you to show that a method of execution was itself cruel and unusual - you had to show that there was some alternative method that could be used, and this puts obviously defense lawyers in these cases in a very difficult situation probably ethically, because they're basically being asked to stipulate that there be another method of execution by which their clients could be could be executed. So the Court has long said since it reinstated the death penalty in 1976 that if the death penalty is constitutional, then there must be a way to carry it out. But there's been a long history of dissent on this point. I think one of the things that has been lost in this discussion is is the issue of the psychological torment associated with the use of the death penalty. the Court in two cases - in the Baze versus Rees case, which challenged Kentucky's lethal injection protocol- three-drug lethal injection protocol, and in the Glossip vs. Gross case challenged the protocol in Oklahoma, the Court seems to focus like a laser light on: will there be that excruciating physical pain at the moment of death? And that to me loses sight of the larger picture of the psychological torture that may be associated with the death penalty. So one of the interesting things I've looked at recently was in Alabama, which is a death penalty state, which is where the Madison case comes out of, the Supreme Court of Alabama itself has said that psychological torture is defined as where somebody has an awareness of their impending death, but where they're helpless to prevent that death and that seems to me to be a very applicable principal to be thinking about when you're thinking about people on death row. I think in Madison's case he came within literally a half hour of being executed before the U.S. Supreme Court issued a stay. In a lot of these cases, you've got people that are being on death row not just for you know a year or two, but for literally decades. I think Justice Breyer in one recent case wrote about a death row inmate who had been on death row for 40 years, and so that issue is one that the U.S. Supreme Court- there was a case called Lackey, which is the the inmate who made the claim initially, who I think had been on death row for something like 17 years. We've had a number of so-called Lackey claims being brought since then, but the U.S. Supreme Court has yet to take up this issue of psychological torture, even though the U.S. when it ratified the convention against torture, that convention prohibits both physical or mental torture, doesn't have to be just physical, it can also be mental. So the Court just really hasn't I think fully considered the issue of the mental torture associated with the death penalty at this point.

Rosen: [00:14:51] Richard, first let's focus on the Court's standard for determining whether alternatives to physical torture exist. In the oral argument both Chief Justice Roberts and Justice Alito asked tough questions of Mr. Bucklew's attorney. Justice Alito said, “How can Bucklew know that execution by lethal gas would cause fewer problems than lethal injection?” Chief Justice Roberts asked, “how can it be a reasonable alternative if it's never been used before? It seems to me if you have a method that no state has used that the danger is magnified.” So what what were they getting at there? What is the Glossip standard for determining whether or not you need an alternative method and how you have to prove that it's likely to cause less pain? And then after telling us about that, you might tell us how many justices you think might be sympathetic to the point John raised about considering psychological as well as physical torture?

Broughton: [00:15:44] Right. So I think that you know, ultimately that's what this case is going to be decided on - on this question of when an inmate needs to or must assert an alternative method of execution and when it would be necessary. What's interesting about Chief Justice Roberts' position here is it goes back to his position in Glossip which is the idea that if the death penalty is constitutional, that is if we are going to say that the state can carry out a death sentence, it must have a method of doing so. So if one particular method is ruled to be invalid or is disfavored, then the state must have some way of carrying out the punishment. And I think that particular notion is sort of deeply embedded in Chief Justice Roberts' questioning in the in the Bucklew case. With regard to the breakdown on the Court, I'm not sure that this is going to be any more successful for Bucklew than the Glossip claim was in that case, but there certainly is the split among the justices on this particular question. And as I said, I think Bucklew may ultimately provide a little more clarity, I mean assuming that the Court reaches the merits of the case, provide a little bit more clarity post Glossip on the circumstances under which it would require an alternative method of execution in terms of the the psychological pain, psychological torture. It certainly - I think John who's written extensively about this is right - that if the American people viewed the imposition of the death penalty as torture, they certainly might be more inclined to oppose it. I'm just not sure that a substantial number of people view it that way and certainly in places where the death penalty remains relatively popular, it is probably not viewed that way, but I also think it's significant that the Supreme Court has consistently rejected these claims by death row inmates regarding prolonged stays on death row, and he mentioned the Lackey case. There have been any number of other cases that have come to the Court raising this, what we call a Lackey claim, and the Court has just sort of continuously rejected those cases and hasn't really shown any interest in the issue. So now it's fair to say that we can't always tell much about the merits of an issue from the mere fact that the Court declines to review the case or declines to grant what we call certiorari. Nevertheless I think it is significant that the Court has continuously rejected merits review of those claims. That's not to say that the Court won't get interested in the issue at some point in the near future - it very well may, but certainly over the course of the last couple of decades, the Court has not shown much interest in that question.

Rosen: [00:18:52] John, let us talk about the future of the death penalty. You have argued in articles like “The Anomaly of Executions: the Cruel and Unusual Punishment Clause in the 21st Century” that because the death penalty has no place in a civilized society, be it Africa or America, should go the way of the stocks, the pillory, and the whipping post. Just as American society no longer tolerate sear cropping or hand branding, it should no longer tolerate executions. Is it right that it doesn't appear that there is anything close to a majority on the Supreme Court for that position at the moment, and as you look at the future of the death penalty on the Supreme Court, how far toward abolition could you see it getting and what directions do you think are most likely to be moving in an anti-death penalty direction?

Bessler: [00:19:45] Well, I think there's a few issues. One is to think about what's happening at the state legislative level, and you're seeing some action there. There's been some efforts including some pretty conservative  legislators to abolish the death penalty, and so you're seeing some action at the legislative level, but you're also still seeing this push of litigation before the U.S. Supreme Court and the invitation of Justice Breyer and Justice Ginsburg to again have a sort of a full-throated examination of the death penalty and issues around, you know, not just the fact that there's the risk of physical excruciating pain, but also this issue of the death row phenomenon with the long extended periods of time on death row people are experiencing, but also issues of arbitrariness and racial discrimination associated with the death penalty. So I think it's, you know, the only way that the support, the death penalty sort of is abolished in a clean way in the United States would be for the U.S. Supreme Court simply to declare it unconstitutional. One of the points I make is that you know, we've already gotten rid of non-lethal corporal punishments in the United States and so going back to a case called Jackson versus Bishop was- in 1968- was a case that Justice Blackmun when he was on the 8th circuit - not on the Supreme Court but on the 8th Circuit, where he wrote the opinion declaring the use of the lash unconstitutional in Arkansas and said that the use of the lash, use of whipping in prisons was both degrading to the person being whipped but also to the person doing the whipping, and so I think when you think about the idea that in our country, it's already considered an Eighth Amendment violation to have a non-lethal corporal punishment, it may only be a matter of time before the Court is forced to confront this issue of the psychological torture associated with the death penalty. I say that because when you think about something that's already considered to be an act of psychological torture - a classic example is a mock execution, that is where you're led to believe that you're about to be executed. So if a simulated or a fake execution is already considered a psychological torture, then one must at least ask the question whether something more severe than that should not also qualify under that rubric. The Court to date has treated torture and capital punishment in separate legal silos, but I do wonder in going forward if at some point the Court won't take up the issue and resolve this issue of the psychological torture because it is an immutable characteristic of the death penalty that involves the use of death threats as part of the process by which the person is ultimately executed as the capital charge. There's the death sentence and there's the imminent threat of death leading up to the execution itself. So justices do change their mind and I think that one of the things that you look back with Justice Blackmun, he initially wrote that he was against the death penalty, but he voted to uphold the death penalty because he said that there was difference between a judge and a legislator, but later he changed his mind on that and said it was it was unconstitutional. So it's hard to predict.

Rosen: [00:00:25] Richard, you have a really interesting piece called “The Federal Death Penalty: Trumpism and Civil Rights Enforcement” in the American law review last year. You say public support for capital punishment is high and may even be understated, and the death penalty is likely not to be abolished by the Supreme Court anytime soon. At the same time, you criticize the president for calls and for his positions which have often been controversial, reckless, and at odds with applicable law such as the call for the execution of Sergeant Bowe Bergdahl. You say that an effective reform might be to increase the legitimacy of capital punishment by showing it can be consistent with a regime of civil and constitutional rights; in particular you suggest that Congress amend the federal death penalty act to include a greater emphasis on civil rights based offenses, including the case of Dylann Roof, the man who was convicted of shooting 9 people in a church in Charleston, South Carolina. Tell us more about all those really interesting arguments and how you think that death penalty reform might lead to a death penalty that you call limited and effective in a season of doubt.

 Broughton: [00:01:32] Sure. So public opinion with respect to the death penalty has always sort of fluctuated. It remains I think relatively high these days, although it's lower than it has been in the past. It's actually I think in some recent polling it actually ticked up very slightly. Ultimately I'm not sure how helpful that the public opinion polling is because of the way that the questions are asked. I mean generally in public opinion polling, it asks a generic question, but the reality of how we decide who gets the death penalty is very, very different. We view individual cases. We view the strength of the evidence. We view the aggravating and mitigating factors that apply to individual cases. We don't have mandatory death penalties anymore. And I worry sometimes the public opinion polling on the question can kind of create this illusion that the respondent is being asked to decide whether a mandatory death penalty should be carried out. So so I have some concerns about public opinion polling on on the death penalty question, but nevertheless it seems to be remaining relatively stable; not as high as it has been in the past but relatively stable in favor of capital punishment, and I think certainly in some jurisdictions that number might be even higher, and in particular cases, it might even be higher and that's why I say that it is perhaps true that in some instances polling might understate support for capital punishment in a particular case where the killing is particularly brutal or egregious - you might have some folks who might sort of generally be either against capital punishment or sort of indifferent or agnostic toward capital punishment, but who might believe that in a particularly egregious case, the death penalty might be at least permissible if not appropriate. With regard to President Trump, look, he has spoken extensively throughout the course of his adult life about the death penalty. He's made a number of controversial public statements about capital punishment. I don't have any particular problem with the president articulating generalized support for the death penalty. I think it's perfectly appropriate for a president to to do that. My concern is with the president taking a position  in a specific case involving a specific individual whose case has not yet gone through the Department of Justice's death penalty review protocol yet. My concern is that it can make it appear as though the Department of Justice is going to be bound by the president's word rather than by a careful review of the facts and circumstances of each particular case, which is the way that federal death penalty cases really ought to be determined. Under the d epartment's death penalty protocol, it is the attorney general not the president and not the individual federal prosecutor, but the Attorney General who decides whether the death penalty will be sought in a particular case. The Attorney General gets extensive advice on this and information from people within the Department of Justice, from death penalty experts in the department, from federal prosecutors, from people in his office and then he ultimately makes the call after careful review of all of the evidence and all of the aggravating and mitigating factors and all of the facts and circumstances of a given case. I think it is that kind of process that can help to give the public confidence in the administration of the federal death penalty, but I worry that that confidence is undermined if there is a sense that the Department of Justice is simply doing whatever the president is publicly saying that the department should do. So those are my concerns with regard to the president's public statements. And finally with regard to federal criminal law, it is the case already that a number of civil rights crimes under the under federal criminal law are punishable by death, and one of those I noted in my paper that is not punishable by death is crimes pursuant to the hate crimes enforcement statute, the  so called Shepherd Byrd Act. And I simply suggest that adding a death penalty provision, which was debated by Congress at the time and there was even a proposal to add a death penalty provision to that legislation, adding something like that would not be inconsistent with the existing scheme of civil rights enforcement, which as I said already contains some capital provisions and it might go some ways toward enhancing the public's confidence in the federal administration of its death.

Rosen: [00:00:29] Well, it is time for closing arguments in this extremely Illuminating discussion. John, the first one is to you and I think we should go back to Madison, the Madison Case rather, and I'm going to ask you: do you believe that executing Vernon Madison, a man who suffers from dementia and long term memory loss would violate the Eighth Amendment and why or why not?

Bessler: [00:00:55] I do. I mean, I think that - I've been long opponent of the death penalty and that's no secret. The title of my book “The Death Penalty as  Torture” I think would indicate that. So I am a person who believes that the death penalty should be declared unconstitutional as a violation of the Eighth Amendment. I think this is just another example of a case in which we should not be executing this individual because of the lack of dignity associated with it, because of the cruelty of executing somebody who essentially does not know what's going on in terms of his current status, because of his is deterioration. But I do think that we need to think about this in the larger scope, and the Eighth Amendment has long been read, since 1958, been read in accordance with the evolving standards of decency of a maturing society. And I think society has evolved. We need to be thinking about the larger issue of torture and torture used to be seen as something that operated principally on the body and since the U.S. signed on to the convention against torture, other nations have joined onto that. More than 150 countries are party to the convention against torture. There's been a commitment made by the international community and by the United States that we would not engage in either physical or mental or social/psychological torture. And I think you already have a definition in a death penalty state of psychological torture, which is that making someone aware of their impending death, but making them helpless to prevent that death, and where you don't have the necessity to carry out an execution because we have life without parole, we have the ability to detain people, incarcerate people, the death penalty simply is not necessary, and it's so arbitrary, It's also just really become inconsistent with the rule of law, and one of the things that I'm most disturbed about is also the racial inequities associated with the death penalty, and I actually went back recently, looked at the history of the Fourteenth Amendment which is of course the Amendment that applies the Eighth Amendment against the states, and the Fourteenth amendment was put in place after the passage of the Civil Rights Act of 1866, and that Civil Rights Act of 1866 required like punishments between blacks and whites, and we just not have not seen that in our country. We've never seen a system of the death penalty that has been operating in a way that is not discriminatory in nature. And that's an additional reason why I think the death penalty should, as you said, as I've written in that article, go the way of the whipping post and and be abolished ultimately.

Rosen: [00:03:43] Richard, last word to you. Do you believe that the execution of Vernon Madison who suffers from dementia and has long term memory loss would violate the Eighth Amendment or not, and why or why not?

Broughton: [00:03:57] Well, I'm skeptical of his claim. I would want to know more before ultimately deciding that. I can certainly imagine a circumstance in which I would I would support his claim. But as I said, I'm sort of skeptical on Eighth Amendment grounds of this argument, merely that the dignity of the individual is what should prevail. I have no problem recognizing, respecting the the inherent dignity of the individual, but I also believe in moral agency and the idea that what really we're trying to do in these cases is trying to get it right, and we're trying to do justice in the particular case. With regard to the death penalty more broadly, it's no secret that I have been part of the so-called machinery of death. I have participated in a number of capital cases, I generally support capital punishment, but not in every case. I think we can we can use a system of fair, individualized determination to decide whether seeking the death penalty is appropriate in a given case, and we don't have to have a broad death penalty. We could have a relatively limited death penalty that is fair in its administration, that is effective and that serves the the ends of justice. So again my support for capital punishment remains, but nevertheless, I believe that we should do our best to have sort of, you know, fair and effective enforcement of the death penalty. And finally what I would say is this death penalty abolitionists and supporters aren't going to agree on the ultimate question, but once we get to the understanding that there will be at least for the foreseeable future some death penalty in the United States, even if it's fairly limited and even if it's only in a few jurisdictions, that there will be some death penalty in the United States, I think there is a lot on which abolitionists and supporters can still agree. We can agree that there shouldn't be mandatory death penalties. We can agree that there should be individualized sentencing and consideration of aggravating and mitigating factors. We can agree that there should be a fair process divorced from politics for deciding when prosecutors will seek the death penalty in particular cases. Now, we may come to different conclusions, positions on particular legal questions and on constitutional questions in particular but I think in thinking about designing and crafting an effective death penalty in this country, once we understand that there will be some limited form of capital punishment, I think there's a lot that we can agree on.

Rosen: [00:00:55] Thank you so much Richard Broughton and John Bessler for a nuanced, thoughtful, and very Illuminating discussion of the death penalty and the future of the Supreme Court. Homework, We the People listeners, once the Bucklew opinion comes down, read the majority, read the dissenting opinion if there is one, and write to me and tell me which you find more constitutionally persuasive and why. John, Richard, thank you so much for joining.

Bessler: [00:01:23] Thank you.

Broughton: [00:01:24] Thank you.

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