“After President Joe Biden nominated Ketanji Brown Jackson for the Supreme Court, Reason’s Damon Root noted that she “has shown admirable judgment in criminal justice cases.” One especially telling example is Jackson’s handling of people charged with possessing or sharing child pornography, who face absurdly long sentences under federal law even when they have never committed any offenses involving contact with a victim.
Questioning those sentences is politically perilous, since people tend to erroneously assume that anyone who looks at such pictures is a current or future child molester. Yet as a judge on the U.S. District Court for the District of Columbia, Jackson frequently imposed sentences below the range recommended by federal guidelines. Sen. Josh Hawley (R–Mo.), a former Missouri attorney general, thinks those decisions reveal an “alarming pattern” of “sentencing leniency for sex criminals,” whom he equates with “child predators.”
Hawley has no idea what he is talking about. His mindlessly punitive attitude elides crucial distinctions and ignores the fact that many federal judges agree with Jackson that the recommended sentences for possessing child pornography are frequently excessive.
Jackson, who is currently a judge on the U.S. Court of Appeals for the District of Columbia Circuit, was a member of the U.S. Sentencing Commission (USSC) from 2009 to 2014. During that time, Jackson recognized that people caught with child pornography do not necessarily pose a threat to public safety. Hawley cites a hearing at which Jackson said she had mistakenly “assumed that child pornography offenders are pedophiles” and was “trying to understand this category of nonpedophiles who obtain child pornography.”
While Hawley implies that Jackson’s interest in this subject is clearly crazy, it is consistent with research that underlines the importance of a distinction that Hawley ignores in his haste to score cheap political points. As Karl Hanson, a senior research scientist at Public Safety Canada and a leading expert on sex offenders, told me more than a decade ago, “there does exist a distinct group of offenders who are Internet-only and do not present a significant risk for hands-on sex offending.”
Recidivism research supports that observation. A 2021 USSC study, for example, tracked 1,093 nonproduction child pornography offenders who were released from prison in 2005. Three years later, it found, 3.3 percent had been arrested for a “non-contact sex offense” (which would include possession of child pornography). Just 1.3 percent had been arrested for a “contact sex offense.” Even allowing for crimes that were not reported, these finding suggests this category of sex offenders is far less dangerous than people commonly imagine.
Hawley is completely uninterested in such findings. He even faults Jackson for referring to “less-serious child pornography offender[s],” a complaint that bizarrely implies there are no differences among such defendants that might be relevant to the punishment they receive. As far as lawmakers like Hawley are concerned, there is no such thing as an excessively severe sentence for possessing child pornography.”
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“In fiscal year 2019, the USSC found, 59 percent of nonproduction offenders received sentences below the guideline range, compared to less than 16 percent in FY 2005. “There had been a steady increase in the percentage of sentences imposed below the applicable guideline range in non-production child pornography cases,” the USSC notes, “which indicate[s] that courts increasingly believed the sentencing scheme for such offenders was overly severe.”
In other words, the downward departures that Hawley presents as aberrant, marking Jackson as especially soft on “sex criminals,” are actually typical.”
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“Hawley’s case against Jackson is based entirely on the unquestioned assumption that the current sentencing scheme is just and that any downward deviations from it must be inappropriately lenient. He cites one defendant, for example, who “had more than 600 images and videos and posted many on a public blog.” The guidelines recommended a sentence of 151 to 188 months, but “Judge Jackson settled on 60 months, the lowest possible sentence allowed by law.”
While a sentence of 12 to 15 years might be appropriate (or even too lenient) for someone who sexually abuses a child, Hawley thinks it’s obviously just for a defendant whose crimes consisted of nothing more than collecting and sharing images of such abuse. He likewise thinks it’s obvious that a five-year sentence for such conduct is akin to a slap on the wrist. Many people, including many federal judges, disagree.
Hawley’s sense of justice does not even comport with the views of average citizens who serve on federal juries. In a 2014 case involving a defendant who was caught with 1,500 child porn images on his computer, for example, James Gwin, a federal judge in Cleveland, asked the jurors what they thought an appropriate sentence would be. On average, they recommended a prison term of 14 months—far shorter than the mandatory minimum (five years), the sentence recommended by prosecutors (20 years), and the term indicated by federal sentencing guidelines (27 years).
Taking a cue from the jury, Gwin sentenced the defendant to five years, the minimum required by statute, which was one-quarter the term that prosecutors wanted but still four times longer than the jurors deemed fair. No doubt Hawley would consider five years insufficient in that case as well. But he does not bother to defend that position, except by lazily and ignorantly classifying all such defendants as “sex criminals” who are “preying on children.”
As a federal judge in Iowa, Mark W. Bennett likewise found that jurors did not agree with the sentences that Hawley believes are self-evidently appropriate. “Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence,” Bennett told The Marshall Project’s Eli Hager in 2015, “every time—even here, in one of the most conservative parts of Iowa, where we haven’t had a ‘not guilty’ verdict in seven or eight years—they would recommend a sentence way below the guidelines sentence. That goes to show that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment—that’s baloney.””
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“”Protecting the most vulnerable shouldn’t be up for debate,” Hawley says. “Sending child predators to jail shouldn’t be controversial.” But the issue is not whether “child predators” should go to jail. It is whether defendants who are not “child predators” should be imprisoned for, say, 14 months (as the jurors in the Ohio case recommended), five years (the mandatory minimum in that case), or, as Hawley presumably would prefer, the 27 years recommended by federal sentencing guidelines.”
“It’s incredibly rare for a draft opinion to be leaked like this and this leak has been roundly condemned.”
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“If the opinion is issued as-is or somewhere near it, constitutional protection of abortion access will be null and the decision of whether or not to permit abortion will return to the states.
Thirteen states have enacted laws saying that abortion is immediately illegal should Roe be overturned (Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming). Others retain (currently unenforced) pre-Roe bans that will be triggered again.
Overall, some 23 states “have laws that could be used to restrict the legal status of abortion,” according to the Guttmacher Institute. This includes nine states with “unconstitutional post-Roe restrictions that are currently blocked by courts but could be brought back into effect with a court order in Roe’s absence.”
Meanwhile, other states have passed laws guaranteeing abortion access in Roe’s absence, and others are poised to do so. According to the Guttmacher Institute, “16 states and the District of Columbia have laws that protect the right to abortion.””
“Three Republicans voted to confirm Jackson: Romney, and Sens. Lisa Murkowski of Alaska and Susan Collins of Maine. Of those three, only Romney voted last year against confirming Jackson to the U.S. Court of Appeals for the District of Columbia Circuit, often considered the second-highest court in the land.
After meeting with Jackson last month and reviewing her confirmation hearings, Romney changed his mind, saying he had “concluded that she is a well-qualified jurist and a person of honor.” It was an implicit rejection of the narrative that his fellow Republicans had pushed about the first Black woman to be put forward for the Supreme Court, who many of them portrayed during her confirmation hearings as a liberal extremist who was soft on crime.
“While I do not expect to agree with every decision she may make on the court, I believe that she more than meets the standard of excellence and integrity,” Romney said in a statement this week.
He is, at the moment, seemingly in the middle of everything. He just brokered a bipartisan deal to salvage a $10 billion coronavirus response package that had stalled amid partisan haggling, this time fully paid for by previously allocated federal funds. He is part of bipartisan efforts to rewrite the Electoral Count Act of 1887, which President Donald Trump sought to manipulate to keep himself in office after losing the 2020 election.
And Romney has appealed to Democrats to work with him on legislation to support children and families, now that the expanded child tax credit has expired and President Joe Biden’s Build Back Better safety net legislation is moribund. All of that is coming after he helped deliver what might be the crowning achievement of Biden’s first year in office: the $1 trillion infrastructure bill.
As Democrats have struggled to pull together 50 senators to advance social safety net legislation, they may find that Romney is a more persuadable bet for that pivotal 50th vote than Sen. Joe Manchin of West Virginia, the Democrat who has stymied their efforts so far.
“Whenever there is a bipartisan effort to tackle an issue, its success is nearly guaranteed,” Romney said in a recent interview. “Bipartisan efforts pass. What does not pass in a 50-50 Senate is legislation crafted entirely by one party.””
“We now know that Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, spent the weeks after the 2020 election cheerleading the Trump White House’s efforts to overturn President Joe Biden’s victory in that election. One detail we do not yet know, however, is what Justice Thomas knew about his wife’s communications, and whether he tried to use his office to protect her.
In January, the Supreme Court permitted the US House committee investigating the January 6 attacks on the Capitol to obtain hundreds of pages of White House records that may shine a light on former President Donald Trump’s efforts to thwart the peaceful transfer of power to Biden. These records may or may not contain additional evidence linking Ginni Thomas to January 6.
If Clarence Thomas had his way, the House committee and the public would never know. Thomas was the only justice to publicly dissent from the Supreme Court’s decision to let the House committee obtain these records — though he offered no explanation for why he dissented.
But here’s the thing: Yes, Thomas’s vote in this case, Trump v. Thompson, may have been an underhanded effort to protect his own wife. But his vote in Trump was entirely consistent with his record in cases where his spouse does not have a personal interest.
In more than three decades on the Supreme Court, Thomas has consistently voted to make it harder for many Americans to have their vote count; to erode institutions, like a free press, that are essential to democracy; and to dismantle nearly a century’s worth of democratically enacted laws on spurious constitutional grounds. Thomas’s opposition to democracy is not rooted in nepotism. It appears to be quite principled.
Among other things, Thomas is the only sitting justice who voted to install a Republican president in Bush v. Gore (2000) — although three other current justices were part of Republican George W. Bush’s legal team in that case. Thomas would allow Republican administrations to deactivate the entire Voting Rights Act so long as they are in power. He would strip journalists of First Amendment rights that allow them to safely provide critical coverage of government officials. And he would invalidate a long list of laws including the federal bans on child labor and on whites-only lunch counters, based on a widely rejected reading of the constitutional provision that grants Congress most of its power over the private sector.
No matter how the scandal with his wife’s texts shakes out, it’s worth remembering how the Court’s longest-serving justice would shape the world. In Clarence Thomas’s America, elections would be skewed so heavily in the Republican Party’s favor that Democrats will struggle to ever gain power. And if Democrats somehow do manage to squeak into office, Thomas would ensure that they cannot govern.”
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“In 1960, civil rights activists aligned with Martin Luther King, Jr. ran an advertisement in the New York Times, which alleged that Alabama police used brutal tactics to suppress student protests. The ad, however, contained some minor factual errors. It misidentified the song that protesters sang at a particular demonstration, for example, and it also claimed that police had arrested King seven times, when he’d in fact only been arrested four times.
Pointing to these small errors, a Jim Crow police official won a $500,000 verdict against the Times in an Alabama court — close to $5 million in 2022 dollars. Had this verdict stood, it would have chilled journalism of all kinds, because it would have meant that any newspaper or other outlet that prints even very small factual mistakes could have been hit with a verdict large enough to bankrupt the outlet.
The New York Times decision, however, prevented this outcome by holding that the First Amendment imposes limits on defamation lawsuits. When someone speaks about a public figure and about a matter of public concern, the Court held, they cannot be held liable for making false statements unless that statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”
Thomas argued in McKee v. Cosby (2019) that New York Times should be overruled. Indeed, Thomas’s opinion suggests that states should be free to define their own defamation law free of constitutional constraints. “The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” Thomas wrote.
If this approach were to prevail, state officials could once again use malicious defamation lawsuits to target journalists. Suppose, for example, that I mistakenly report that “500 people attended a rally protesting Florida Gov. Ron DeSantis,” when in fact the rally was attended by only 450 people. If states can set their own defamation laws, free of constitutional constraint, then DeSantis could sue me and Vox Media for millions, endangering our ability to continue reporting on DeSantis — and potentially bankrupting Vox in the process.”
“Now the West Virginia plaintiffs raise several different legal arguments against the nonexistent Clean Power Plan, several of which could permanently hobble the federal government’s power to regulate if adopted by the Court.
A brief filed by several senior red-state officials, for example, rests heavily on the “major questions” doctrine, a legal doctrine that is currently fashionable among Republican judges but that was also invented entirely by judges and has no basis in any statute or provision of the Constitution.
The major questions doctrine claims that there are fairly strict limits on federal agencies’ power to hand down particularly impactful regulations. As the Court most recently stated in NFIB v. OSHA (2022), “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” And several of the plaintiffs in West Virginia argue that the Clean Air Act isn’t sufficiently clear to justify a regulation like the Clean Power Plan.
One problem with this major questions doctrine is that it is vague. The Court has never explained what constitutes a matter of “vast economic and political significance,” or just how “clearly” Congress must “speak” to permit an agency to issue significant regulations. So, in practice, the major questions doctrine largely just functions as a veto power, allowing judges to justify blocking nearly any regulation they do not like. If a judge doesn’t like a particular regulation, they can just claim that it is too big.”
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“Other briefs in the West Virginia case suggest that the Clean Power Plan violates the “nondelegation doctrine,” another judge-created doctrine that limits Congress’s power to delegate the power to issue binding regulations to federal agencies. This doctrine is even more vague than the major questions doctrine, and even more capable of being applied selectively to strike down regulations that a particular panel of judges do not like.
As Justice Neil Gorsuch described nondelegation in 2019, a federal law authorizing an agency to regulate must be “‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain whether Congress’s guidance has been followed.” How “precise” must the law be? That’s up to judges to decide.
Notably because this doctrine outright forbids Congress from delegating certain powers to an agency, a Supreme Court decision that struck down the Clean Power Plan on nondelegation grounds could permanently strip Congress of its power to authorize the EPA to issue major regulations in the future. Indeed, depending on how broadly the Supreme Court worded such a decision, it could impose drastic new limits on every single federal agency.”
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“the issues at stake in West Virginia can be summarized fairly concisely. It is a case about a regulation that does not exist, that never took effect, and that would have imposed obligations on the energy industry that it would have met anyway. It also involves two legal doctrines that are mentioned nowhere in the Constitution, and that have no basis in any federal statute.
And yet, West Virginia could wind up permanently hobbling the government’s ability to fight climate change.”
“The Court’s youngest justice drew a distinction between “pragmatists,” judges who “tend to favor broader judicial discretion,” and “formalists,” who “tend to seek constraints on judicial discretion” and “favor methods of constitutional interpretation that demand close adherence to the constitutional text, and to history and tradition.” She placed herself in the latter camp.
As a justice, however, Barrett has behaved as an unapologetic pragmatist. Along with the Court’s other Republican appointees, Barrett supports flexible legal doctrines that give her Court maximal discretion to veto federal regulations that a majority of the justices disagree with — especially regulations promoting public health or protecting the environment. And she’s joined her fellow Republican justices in imposing novel limits on the Voting Rights Act that appear nowhere in the law’s text.
The rhetoric of judicial restraint is potent, so it is understandable why Barrett wants to tap into that potency. Formalist rhetoric enables the justices to claim that they didn’t roll back voting rights or strike down a key prong of President Joe Biden’s efforts to promote vaccination because they prefer weaker voting laws and a flaccid public health system — they simply did what the law requires.
And Barrett is hardly the only justice to engage in such rhetoric. Justice Neil Gorsuch recently published an entire book claiming that judges should rely almost exclusively on the text of a statute or constitutional provision while interpreting it. Justice Clarence Thomas frequently calls for radical shifts in the law, claiming they are necessary to restore the “original understanding” of the Constitution. Even Justice Samuel Alito, the Court’s most partisan justice, recently attributed his new, entirely atextual limits on the Voting Rights Act to having taken “a fresh look at the statutory text.”
The problem with this rhetoric, in short, is that it bears no resemblance whatsoever to the current Supreme Court’s actual behavior.”
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“Jackson involved Texas’s anti-abortion law SB 8, a law that effectively bans all abortions after six weeks, in violation of the fetal viability standard established in Planned Parenthood v. Casey (1992). And SB 8 was, in Justice Sonia Sotomayor’s words, designed to “evade judicial scrutiny.”
Ordinarily, when someone wishes to challenge an unconstitutional state law in federal court, they are not allowed to sue the state directly. Rather, such a plaintiff must sue the state official charged with enforcing that unconstitutional law. But Texas tried to design SB 8 so that no state official would be empowered to enforce its anti-abortion provisions — and thus no one could be sued to block the law.
SB 8 relies on a bounty hunter system. Under SB 8, “any person” except for an employee of the state of Texas may bring a lawsuit against any abortion provider accused of performing an abortion after the sixth week of pregnancy. If an abortion provider loses such a suit, they must pay the plaintiff a bounty of at least $10,000 — and there is no upper limit on this bounty.
SB 8, in other words, terrorizes abortion providers by potentially subjecting them to hundreds or even thousands of lawsuits if they are suspected of violating SB 8’s terms.
As Chief Justice John Roberts explains in a dissenting opinion in Jackson, Texas did not actually succeed in writing a law that is not enforced by state officials — and is therefore immune from federal judicial review. Because “the mere threat of even unsuccessful suits brought under SB 8 chills constitutionally protected conduct,” Roberts wrote, “court clerks who issue citations and docket SB 8 cases are unavoidably enlisted in the scheme to enforce SB 8’s unconstitutional provisions, and thus are sufficiently ‘connect[ed]’ to such enforcement to be proper defendants.”
But the five most conservative justices, including Barrett, all backed Texas’s play. Barrett joined an opinion by Gorsuch that effectively immunized SB 8 from any federal lawsuit challenging Texas’s bounty hunter system. (Technically, Gorsuch’s opinion allowed suits to move forward against state health officials who play a minor role in enforcing the law, but their role in doing so is so small than a hypothetical court order against these officials would be basically useless.)
The implications of this decision are staggering. As Roberts writes in dissent, quoting from an 1809 Supreme Court opinion, “if the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” Jackson provides every state with a roadmap that it can use to neutralize virtually any constitutional right.
So what’s really going on here? Would Barrett really vote to uphold a state law subjecting all gun owners to SB 8-style lawsuits? That seems unlikely. Among other things, Barrett is an outspoken proponent of more expansive gun rights. And a majority of the justices appeared inclined to expand the scope of the Second Amendment significantly during a separate case that was argued last November.”
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“Barrett’s pragmatic approach to the law, and that of her Republican colleagues, is also on display in their decisions weighing the Biden administration’s power to protect public health.
Recall that Barrett defined a pragmatic judge as one who tends “to favor broader judicial discretion,” and formalistic judges as those who “tend to seek constraints on judicial discretion.” Since joining the Court, Barrett has sought to maximize her own discretion to veto federal regulations, while eliminating longstanding constraints on judicial power. And she’s largely succeeded in these efforts because she has five colleagues who share the same goal.
Consider the Court’s recent decisions in National Federation of Independent Business (NFIB) v. Department of Labor (2022), which struck down the Biden administration’s rule requiring most workers to either be vaccinated against Covid-19 or be regularly tested for the disease, and Alabama Association of Realtors v. Department of Health and Human Services (2021), which struck down the Centers for Disease Control and Prevention’s eviction moratorium in areas with substantial levels of Covid transmission.
Both cases questioned the power of federal agencies to write binding national regulations under long-existing federal statutes empowering those agencies to do just that. Before former President Donald Trump started remaking the judiciary, the Court’s decisions governing such rules urged judges to be deferential to both the agencies themselves and to the Congress that delegated such power to an agency.”
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“In NFIB and Alabama Association of Realtors, however, the Court walked away from this more restrained approach to judging — with Barrett joining the majority in both decisions. Both cases relied on the so-called “major questions doctrine,” a doctrine that was invented entirely by judges, and that has no basis in any statute or in the Constitution’s text.
This doctrine places vague limits on federal agencies’ power to issue regulations that are likely to have a significant impact. “We expect Congress to speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance,’” the Court stated in both the NFIB and the Alabama Association of Realtors cases.
The problem with this major questions doctrine is, as federal appellate Judge Jane Stranch wrote in a lower court opinion upholding the Biden administration’s vaccination rules, “the doctrine itself is hardly a model of clarity, and its precise contours—specifically, what constitutes a question concerning deep economic and political significance—remain undefined.” The Court also hasn’t explained just how “clearly” Congress must “speak” if it wishes to delegate important powers to a federal agency.
The major questions doctrine, in other words, is an invitation to pragmatic judging. The major questions doctrine maximizes judicial discretion because it is so vague, and thus permits judges to invoke it whenever they disagree with a federal regulation and wish to strike it down. After all, if no one can say for sure “what constitutes a question concerning deep economic and political significance,” then the ultimate answer to this question will rest with Barrett’s court.
The same can be said about the nondelegation doctrine, a similarly vague constraint on federal agencies advanced by Barrett’s five Republican colleagues. (The Court’s most recent majority opinion discussing this doctrine, Little Sisters v. Pennsylvania, was decided a few months before Barrett joined the Court in 2020. So there is still a little uncertainty regarding Barrett’s views on nondelegation.)
The nondelegation doctrine would scrap the deferential approach that the Court advocated in Mistretta. In Gorsuch’s words, nondelegation calls upon judges to strike down federal laws permitting agencies to regulate, unless those laws were “‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”
Thus, like the major questions doctrine, the nondelegation doctrine is so vague that it maximizes the discretion of judges to restrict federal agencies. It is a fundamentally pragmatic doctrine under Barrett’s distinction between pragmatic and formalistic judges.”
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“In Brnovich v. Democratic National Committee (2021), for example, the Court fabricated a bunch of new limits on the Voting Rights Act that appear nowhere in the law’s text — including a strong presumption that voting restrictions that were in place in 1982 are lawful, or a similar presumption favoring state laws purporting to prevent voter fraud. As Justice Elena Kagan wrote in dissent, Brnovich “mostly inhabits a law-free zone.””
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“It would be one thing if this Supreme Court were honest about what it is doing. It could write explicitly pragmatic opinions — which emphasize the justices’ desire to reach results that a majority of them deem to be fair, and which admit openly that these results cannot be justified by any provision of the Constitution or any federal statute.
But the Court is not being honest about what it is doing. Rather than admitting that they are engaged in an unfettered, pragmatic approach to judging, the conservative justices continue to wrap themselves in the rhetoric of judicial formalism.”
“The upshot of the Court’s 5-4 decision in Hamm is that a man was executed using a method that may have caused him excruciating pain, most likely because that man’s disability prevented him from understanding how to opt in to a less painful method of execution.
There is significant evidence that Matthew Reeves, a man convicted of murder that the state of Alabama executed after the Supreme Court permitted it to do so on Thursday, had an intellectual disability. Among other things, as Justice Sonia Sotomayor noted in a 2021 dissenting opinion, an expert employed by the state gave Reeves an IQ test and determined that “Reeves’ IQ was well within the range for intellectual disability.”
The Supreme Court held in Atkins v. Virginia (2002) that “death is not a suitable punishment” for someone with an intellectual disability. Nevertheless, in its 2021 decision in Dunn v. Reeves, the Supreme Court voted along party lines to effectively prevent Reeves from avoiding execution.
The issue in Hamm, the decision that the Court handed down Thursday night, is quite narrow. After Dunn, it was no longer a question of whether Alabama could execute Reeves. The only question was how Alabama could conduct this execution — and whether the state was allowed to use a method that may very well amount to torture, even over Reeves’s objection.
This time the Court split 5-4, with Justice Amy Coney Barrett crossing over to vote with the three liberal justices. But, in a Court with a 6-3 Republican supermajority, Barrett’s vote was not enough to save Reeves from the fate that Alabama chose for him. He was executed by lethal injection.”
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“Many states used to use a three-drug combination to execute people on death row. First, the inmate would be injected with sodium thiopental, an anesthetic that was supposed to prevent the inmate from feeling the effects of the drugs that would kill them. The inmate would then be injected with a paralytic drug, and finally with a lethal drug that would stop their heart.
But supplies of sodium thiopental dried up, at least for executioners, around 2010 — in part because pharmaceutical companies refused to sell the drug for use in executions, and in part because the European Union forbids companies from exporting drugs for such a purpose. As a result, some states turned to less reliable sedatives.
The result was botched executions, where inmates were visibly in excruciating pain during their executions. As Sotomayor wrote in a 2015 dissenting opinion, these unreliable execution drugs leave death row inmates “exposed to what may well be the chemical equivalent of being burned at the stake.””
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“Neil Gorsuch wrote for the Court in Bucklew v. Precythe (2019), “a prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.””