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The newly constituted Supreme Court is poised to become the most supportive of the death penalty in decades, many observers say. Front and center in a number of recent cases: the tension between the principle of human dignity and the practical needs of justice, for which, some say, society must hand down timely, harsh punishments to both punish and deter the worst of crimes.
However, both liberals and conservatives have voiced alarm that in many cases the court’s recent rulings on cruel and unusual punishment and the religious freedoms of those on death row are chipping away at the concepts of dignity. “What is our sense of humanity, and how do we want to carry out our punishments?” asks Robin Konrad, an assistant professor at Howard University School of Law.
The debate has had scholars reexamining the principles governing capital punishment. “We just see some really strong crosswinds on these cases right now,” says Corinna Lain, a professor at the University of Richmond School of Law. “So I think this is a question we have to be asking now, because what principles are behind the death penalty right now?”
When Fleet Maull was serving his 14-year sentence in a maximum-security prison more than three decades ago, he spent a lot of time with men who were seriously ill or dying.
The path that led him there was “a little weird,” he says. In the 1970s, he was a “countercultural expat” and a highly educated psychotherapist traveling the world, stopping to study Buddhism with Tibetan masters. To fuel his peripatetic lifestyle, he was a low-level drug peddler smuggling cocaine.
“Which shows you what a knucklehead I was,” says Dr. Maull, who was caught and convicted in 1985 and given the mandatory minimum sentence that altered his life.
Today, nearly 20 years after his release, he calls the timing of his conviction “auspicious” and says, without irony, that “I was in the right place at the right time.” His imprisonment set him on the difficult path to discover what has become his life’s purpose: to help prisoners “live and die with dignity and humanity and with as little pain as possible.”
This aim to uphold the humanity and minimize the pain of those who have committed heinous acts is not a natural impulse for most people. But as a Buddhist spiritual adviser and a prisoners’ rights activist who founded the National Prison Hospice Association while serving his sentence, Dr. Maull sees this goal as springing from an important principle. It's rooted not only in the teachings of the world’s major religions, but also woven into the political ideals of Enlightenment liberalism, in which prohibitions against “cruel and unusual” punishment began to evolve over the past few centuries.
This year, as a newly constituted Supreme Court has begun to readdress capital punishment, the tension between the principle of human dignity and the practical needs of justice has come into focus in a way the United States has not seen for decades, experts say. In fact, the court’s newest conservative justices are poised to make it the most supportive of state executions in decades.
“Capital punishment cases have come out of the woodwork in a way that I hadn’t really been anticipating, in part because it’s been kind of a dormant issue for a while,” says Kathryn Heard, a legal scholar at Dickinson College in Carlisle, Pennsylvania.
In many cases, the Supreme Court’s recent rulings have alarmed both liberals and conservatives, who say decisions on the religious freedom of those on death row, as well as the extent of the Constitution’s prohibitions against cruel and unusual punishment, have been chipping away at modern concepts of dignity.
Led by Justice Neil Gorsuch, the five conservative justices have expressed a new impatience at the constant stays and decadeslong litigation that characterize a lot of capital cases. They have suggested that most death row appeals are simply “pleading games” made in bad faith, thwarting the demands of justice.
In two cases decided this April, Justice Gorsuch, writing for a 5-4 majority each time, rejected the appeals of two men, one in Missouri and one in Alabama, who argued that the lethal injection protocols of these states would cause them an unusual amount of pain, given their individual conditions.
“Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay,” Justice Gorsuch wrote in the case that dismissed the claims of the Missouri inmate, who argued that, because of his rare medical condition, the state’s lethal injection protocol could cause him to die in excruciating pain.
Aside from technical issues of Constitutional jurisprudence, Dr. Maull and others have posed difficult, if fundamental, questions.
Is there a limit to the kind of pain prisoners being executed should experience, even assuming that it will not be pain-free? At the time of execution, should prisoners have a right to have a religious cleric of their own faith or denomination at their side?
“We just see some really strong crosswinds on these cases right now,” says Corinna Lain, a professor at the University of Richmond School of Law in Virginia. “So I think this is a question we have to be asking now, because what principles are behind the death penalty right now? It’s really not about deterrence anymore,” she says. “As it’s been shown again and again, it doesn’t exist. It’s not about the incapacitation of dangerous people. It’s all retributivism. That’s it.”
“So why should we care?” Professor Lain continues. “Why should we care about how they’re housed? Why should we care about the method of their executions, given the way they treated their victims? And why should we care whether they have a person comforting them when the state puts them to death?”
“We have to care, because we can’t use the baseline of horrible crimes as our standard for civilized society,” she adds. [Editor's note: This part of the quote was added later for clarity.]
‘Inspired to serve’
Looking back over his experience in prison, Dr. Maull says it was strange that federal officials sent him to the U.S. Medical Center for Federal Prisoners in Springfield, Missouri, rather than a medium-security penitentiary. Dr. Maull found himself among the cadres of healthy prisoners who were needed to help run the maximum-security hospital just as dozens of prisoners with AIDS were being transferred there from around the country.
“When I got there, I realized I was in this hell realm,” says Dr. Maull. “I found myself in this world of tremendous suffering, deep suffering, even without the AIDS crisis.”
Suddenly, after being immersed in the meditative practices of Buddhism for 10 years, the convicted drug-runner found himself bathing prisoners with disabilities, assisting peers with mental illnesses, and teaching mindfulness to blind inmates or those dealing with extreme pain.
“I was just inspired to serve,” says Dr. Maull, who embraced the work of making things better for dying men confined in maximum security.
Rebalancing religious freedoms
Earlier this year, the high court denied the appeal of a Muslim death row inmate in Alabama who wanted his imam at his side at the moment of his death. Prison policy would allow only a Christian chaplain at his side. Many religious conservatives decried the decision.
“The state’s obligation is to protect and facilitate the free exercise of a person’s faith, not to seek reasons to deny him consolation at the moment of his death,” wrote the conservative social critic David French in the National Review.
Just a few weeks later, the court stayed the execution of a Buddhist inmate in Texas, even though the facts of his case were nearly exactly the same, experts say.
“What the State may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room,” wrote Justice Brett Kavanaugh in a 7-2 decision that left many court observers puzzled. After the decision, Texas banned all religious chaplains and advisers from the death chamber during an execution.
Which makes sense, says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, California, and a strong advocate of the death penalty for those who commit horrible crimes.
“Certainly a person who is about to be executed should be allowed to consult with his adviser, and for many religions, confession at the end is considered very important, and that should all be accommodated,” says Mr. Scheidegger, who has written more than 150 briefs for the Supreme Court advocating for the rights of victims. “But actually having a spiritual adviser in the execution room is not necessary, and if it can’t be done as a practical matter for all religions, then it should be done for none of them.”
“But of course we should avoid making an execution undignified, or an unnecessarily painful event, to the extent we can as a practical matter,” he says. “The penalty of death is just the penalty of death, and we shouldn’t be heaping additional things on it, and I don’t think anybody today thinks we should.”
What is ‘cruel and unusual?
The Supreme Court’s new conservative majority, however, appears to be embracing a different understanding of what constitutes an “unusual” amount of pain during an execution, scholars say.
In previous cases, the Supreme Court has done away with certain methods of execution that violate “evolving standards of decency,” ruling that states should employ less painful methods at their disposal.
In his majority decision denying the Missouri man’s appeal, however, Justice Gorsuch wrote that the Constitution does not guarantee a painless death and that “the question in dispute is whether the State’s chosen method of execution cruelly superadds pain to the death sentence.”
In previous opinions, only the late Justice Antonin Scalia and Justice Clarence Thomas advocated this position. In their view, the Constitution sets a high bar, only prohibiting states from “superadding” extra “terror, pain, or disgrace.”
But the principles behind evolving standards of decency are woven into the very origins of the secular, liberal state, says Professor Heard at Dickinson College, who traces the evolution of the prohibition of cruel and unusual punishment to the Enlightenment.
As an emerging middle class began to challenge the hierarchy of kings and lords, philosophers began to insist on an individual’s “inalienable rights,” including freedom from cruel and unusual punishment, she says.
“Public displays of both state-sponsored violence and established religious belief delegitimized a state’s claims to securing the rights, freedoms, and liberties of all individuals,” says Professor Heard.
This shift in thought is in many ways fundamental to the evolving standards of decency that have governed the implementation of the death penalty since then. Once-common punishments, including the execution of people committing nonlethal crimes or the execution of minors or the mentally disabled, are now widely considered cruel and unusual.
“So what does that mean for us as a society?” says Robin Konrad, an assistant professor at Howard University School of Law in Washington and a critic of the Supreme Court’s recent capital cases. “I mean, really, the issues surrounding the death penalty are, in general, about this as much as anything: What is our sense of humanity, and how do we want to carry out our punishments? And if we are going to have a death penalty, how do we want to carry it out, and are we OK with saying, well, it’s OK if we torture people to death?”
In the Alabama case in which the inmate said the lethal injection would cause him an unusual amount of pain, state Attorney General Steve Marshall echoed many of the concerns of the Supreme Court’s majority, saying the family of the death row inmate’s victim were “revictimized” and “deprived of justice.” The inmate had “dodged his death sentence for the better part of three decades ... by desperately clinging to legal maneuverings to avoid facing the consequences of his heinous crime,” Attorney General Marshall said.
“A lot of inmates will drag everything out as long as they can, and there are plenty of judges willing to accommodate them,” says Mr. Scheidegger at the Criminal Justice Legal Foundation. “But I think it’s possible now that we can make some progress on these kinds of delays.”
Legal matters aside, for Dr. Maull, helping prisoners live and die with dignity and humanity and with as little pain as possible is an expression of compassion that asserts our common humanity.
“I don’t think any of us can imagine what it’s like to face death in prison,” he says. “These prisoners are often dying apart from their families, unwitnessed, and with just about the least dignity a human being can die with.”
“So we try to bring as much dignity to their journey and to their deaths as we possibly can.”