Your Political Opponents Get Moves on the Chessboard Too
Death penalty opponents make a tactical error- and executions are now more painful as a result
Last week, the U.S. Supreme Court decided the shadow docket case of Hamm v. Reeves, which sought a to vacate a stay of execution where Alabama was insisting on using a painful lethal injection process to execute a prisoner who was too mentally impaired to figure out the form they used to choose an execution method. It was a 5-4 ruling in favor of vacating the stay and allowing the execution, and the four Justices were right, for many reasons, chief among them that the lower court stay rulings were carefully and correctly reasoned. It generated the usual outrage among the Court’s critics. But, again, to be clear, they are right here.
But there’s something else going on in Hamm that should be a point of real reckoning among death penalty opponents. It is the culmination of the failure of what they thought would be a clever strategy to obstruct the death penalty, and a lesson for social movements. The lesson is that the other side of any contested debate gets their own moves on the chessboard too.
Here’s what happened. Around ten years ago, death penalty opponents realized that the drugs used by American states to conduct their executions by lethal injection were produced by companies that are susceptible to political pressure. Many of these companies are located in Europe, where at the very least elite opinion is strongly against the death penalty (and the punishment is widely banned). So, death penalty opponents figured, if they forced these companies to constrict the supply of these drugs and refuse to sell them to executioners in America, we’d be left without sufficient implements to conduct executions and would stop them from happening. Brilliant, eh?
Well, the first part of the plan happened. Companies stopped supplying the drugs, and states found themselves unable to set execution dates because they couldn’t get the needed chemicals to execute prisoners. But death penalty supporters get moves on the chessboard too. First, states that conduct executions came up with alternate forms of lethal injections. But death penalty opponents had a counter-move for that too! They would go to court and argue that these alternative forms were painful (or at least that the states couldn’t prove they were not) and that it constituted cruel and unusual punishment to impose them.
Of course, this is where they really should have thought things out more. The American court system is significantly pro-death penalty. Congress has instructed them to be this way (in an infamous statute signed by Bill Clinton in the 1990’s that cuts off most habeas petitions challenging death sentences), and there are plenty of conservatives on the bench who love the penalty, as well as many liberals who either came of age when you had to be tough on crime or are still influenced by those who did. So you aren’t going to get a great reception from the courts on your arguments that there is no available form of execution that isn’t cruel and unusual punishment.
And indeed they didn’t. They lost over and over again. For instance, the Supreme Court held that a prisoner challenging a method of execution has to name a constitutional and practical alternative. This was a disaster for death penalty lawyers, whose clients don’t want to tell the state how it can constitutionally kill them. But it was directed at this very issue- basically, death penalty opponents could not leverage the constricted supply of death penalty drugs into an effective constitutional abolition of the death penalty.
And SCOTUS has made other rulings too in method of execution cases, with the latest being Hamm where they ruled Alabama need not wait until it gets its less painful nitrogen hypoxia method of execution before executing more prisoners; they can use more painful lethal injection methods instead. There have been numerous executions in various states using the modified, potentially more painful forms of executions during the period of the chemical shortage.
In other words, this totally backfired, and not only do executions continue, but they are now more painful than ever and prisoners have fewer legal avenues than they did before to argue that a method of execution is cruel and unusual.
The lesson to take from this is simple: the other side gets to counter your brilliant political strategy. Nobody in a tough political fight responds to the other side’s strategic gambits by saying “I guess they got us then, congratulations fine sir”. They fight back. And in this case, the way that death penalty supporters fought back was entirely predictable. If you were banking on the American courts and the American South to give up on executing people and to find that if the least painful form of execution wasn’t available, we’ll just have to abolish the death penalty, you don’t understand very much about politics.
Not all backlashes are foreseeable, and policymakers certainly shouldn’t be staring at their shadows and afraid to try things. But when backlashes are foreseeable, forging ahead can make things worse. That is what happened here.