Bernard E. Harcourt | Cruel and Unusual Punishment

By Bernard E. Harcourt

The horror. Unimaginable. Intolerable.

It is not just the scale of the inhumanity. Thirteen executions. Thirteen executions in less than six months. No, we had already become numb to the inevitability of the next execution…

It is not simply the complicity of our most august court. We realized quickly that the United States Supreme Court had blood on its hands, as it lifted one stay after another—for one execution, sweeping aside, within a few hours, the reasoned decision of not one, not two, but three separate United States Courts of Appeals, including one issued en banc by the D.C. Circuit, the court with perhaps one of the highest reputations among jurists. No, we had quickly lost faith in their sense of justice. We soon began to realize that a majority of justices had themselves become the nation’s executioners…

Nor is it the fact that the execution spree was concocted by an attorney general, William P. Barr, who had lost all respect among reasonable jurists, having become a knave of the president. The killing spree was devised by an attorney general who had openly flouted and breached the independence of the Department of Justice, placing it at the very feet of a tyrant.

No, it is not even the fact that the killing spree—which began on July 14, 2020—was implemented during a presidential campaign, no less, and used as a purely instrumental tool to gain political votes. Here too, we had become numb to the politics of the death penalty…

Nor is it the fact that six of the executions were conducted after the presidential election, when we all knew there would be a presidential transition. These were lame duck executions. Even more, William Barr resigned before the last three executions, leaving in place an acting attorney general to carry out the executions…

Nor even—imagine this—that a woman who had suffered brutal domestic abuse was ordered to be executed during National Domestic Awareness Month, and a Black man was executed on the anniversary of Dr. Martin Luther King, Jr.

No, all of those ghastly dimensions, we had become numb to them—as if we all, Americans, were slam drunk on bloodthirst and revenge.

No, what is most shocking is that a woman and two men were executed within just hours of a moratorium on federal executions. Lisa Montgomery, Corey Johnson, Dustin Higgs—they were executed literally days away from the transfer of presidential power to a new administration that has vowed, in its own words, “to pass legislation to eliminate the death penalty at the federal level.”

Had their execution dates been pushed just a few hours forward, had the courts taken just a few days longer to resolve the stays of execution, had some unforeseen event slowed things down by a day or two— Lisa Montgomery, Corey Johnson, Dustin Higgs would be alive today and likely never face execution.

A day or two away. A chance event. That is all that stands between life and death.

Nothing shows more patently the arbitrariness of the death penalty. Nothing demonstrates more powerfully how cruel and unusual the death penalty is. Lisa Montgomery, Corey Johnson, Dustin Higgs were rushed to the gallows by an administration as it was turning out the lights and packing its bags.

It is time for abolition.

Bernard Harcourt

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