The Life and Death Issue Ignored at Judge Gorsuch’s Confirmation Hearings

The Senate Judiciary Committee grilled Gorsuch about euthanasia and abortion, yet utterly failed to probe his record on capital punishment.

Illustration: The Intercept

As Donald Trump stood in the East Room of the White House on January 31, congratulating himself for delivering “the very best judge in the country” for the U.S. Supreme Court, a man in Missouri was lying on a gurney, with lethal injection drugs entering his veins. The man, 37-year-old Mark Christeson, was declared dead minutes later, at 7:05 Central time. In Washington, Trump continued to speak, with Judge Neil Gorsuch and his wife now standing behind him. With much of the country tuned in to watch Trump’s much-hyped announcement that night, the execution in Missouri flew under the radar.

Convicted of a brutal rape and triple murder committed in 1998, Christeson was not someone likely to inspire widespread concern on any given evening. Yet his execution was a reminder of the kinds of cases Gorsuch would review if confirmed to the Supreme Court. Christeson — a lifelong victim of sexual abuse whose IQ hovered as low as 74 — was abandoned by his own post-conviction attorneys, who missed a crucial deadline to file his federal habeas appeal in 2005. When outside lawyers tried to step in to correct their gross neglect, courts blocked them at every turn. As Christeson’s execution approached, a group of former state and federal judges raised alarm about his case, filing multiple amicus briefs to his petitions before the Supreme Court. They warned that Christeson had received no “meaningful federal review” of his sentence. “When the stakes are this high, such failures unacceptably threaten the legitimacy of the judicial process,” the judges wrote. Christeson won a last-minute stay of execution in 2014, with the justices remanding his case back to the lower court. But the reprieve was fleeting. As with many on death row who turn to the Supreme Court for relief, Christeson was ultimately executed, the deep flaws with his case barely addressed, let alone corrected.

Over two long days before the Senate Judiciary Committee this week, Gorsuch was never asked his views on the death penalty. More time was spent discussing fly-fishing and rodeos, along with more serious (if redundant) questioning on life and death issues like abortion and euthanasia. This was not particularly surprising; confirmation hearings are mostly political theater — and Gorsuch’s record on criminal justice has stirred little controversy compared to other hot-button issues. Many lawyers and experts expressed a measure of relief when Trump announced Gorsuch as his Supreme Court pick. “I don’t think he’s a fire-breathing, law and order, pro-prosecutor guy,” said Tejinder Singh, the appellate and Supreme Court litigator who won a stay of execution for Mark Christeson in 2014.

Yet Gorsuch seeks to join the Supreme Court at a time when the death penalty is in a state of chaos and decline. The issue has sparked some of the most contentious public moments on the bench in recent memory, and with good reason. For all the layers of legal precedent enveloping capital punishment, it is a tradition that has become increasingly hard to uphold, at least in any intellectually honest way. The Supreme Court’s most recent ruling on lethal injection, Glossip v. Gross, was simply embarrassing: After a heated oral argument in which the Oklahoma brazenly misled the justices, the 5-4 decision upheld an execution protocol that is the sloppiest of inventions, rooted in junk science, and peddled by a state notorious at the time for having recently carried out a dramatically botched execution. Glossip’s legacy has been short but grim. Oklahoma’s incompetence and deceit has been further exposed. Botched executions have continued apace. More surreal, the ruling has put people challenging their upcoming execution by lethal injection in the perverse position of having to propose better ways for the state to kill them, from the firing squad to the gas chamber. Add to this the fact that the named plaintiff in the case, Richard Glossip, is almost certainly an innocent man, and the result is a perfectly hideous portrait of our modern-day death penalty system. It was Glossip that inspired Justice Stephen Breyer’s extraordinary dissent listing the myriad reasons the death penalty itself is constitutionally intolerable. More recently, Justice Sonia Sotomayor has questioned whether lethal injection is “our most cruel experiment yet.”

Glossip came up just once during Gorsuch’s confirmation hearing, in a brief question from Republican Sen. Jeff Flake. Does Glossip deserve the respect of precedent, he asked? “It does,” Gorsuch said, and that was it. That no senator thought to probe any further was a missed opportunity. In his 10 years serving on the 10th Circuit Court of Appeals, Gorsuch presided over cases that embodied the pitfalls of capital punishment, and even helped pave the way for Glossip. A recent report by the NAACP Legal Defense and Education Fund highlighted two particular areas of concern. One is his complicity in upholding Oklahoma’s disastrous lethal injection regimen, which became the law of the land in Glossip. And the other is complicity in a more systemic problem throughout the criminal justice system: a pattern of favoring finality over fairness. Gorsuch, the LDF warns, has proven all too willing to apply the most rigid barriers for those seeking to challenge unfair sentences, including in capital cases. “Winning federal habeas relief from any judge is a challenge,” the LDF report notes. “Winning federal habeas relief from Judge Gorsuch is a near impossibility.”

Supreme Court nominee Judge Neil Gorsuch arrives for a meeting at the US Capitol in Washington, DC, February 2, 2017. / AFP / SAUL LOEB        (Photo credit should read SAUL LOEB/AFP/Getty Images)

Supreme Court nominee Judge Neil Gorsuch arrives for a meeting at the U.S. Capitol in Washington on Feb. 2, 2017.

Photo: Saul Loeb/AFP/Getty Images

It would be unfair to hold Gorsuch individually responsible for the death penalty debacles in Oklahoma. Plenty of others have contributed more to the state’s reputation for dysfunction, deceit, and cruelty in carrying out capital punishment. Yet as a 10th Circuit judge, Gorsuch joined important decisions in Oklahoma cases that showed “a disturbing lack of concern about extreme and needless pain and suffering” during executions, in the words of the LDF report.

In 2014, Oklahoma famously tortured a man named Clayton Lockett to death. Witnesses to his execution described how he writhed in agony during the bloody ordeal; one official compared it to a horror film. The state hastily revised its lethal injection protocol, then swiftly assigned new execution dates to four men on Oklahoma’s death row. The men challenged the state’s new lethal injection formula, arguing that it put them at risk of “severe pain, needless suffering, and a lingering death,” in violation of the Eighth Amendment.

At the center of their argument was midazolam, the first in the three-drug cocktail used to kill Lockett. The drug had replaced the barbiturate sodium thiopental, relied upon for decades by death penalty states. Sodium thiopental, an anesthetic, was traditionally followed by a paralytic agent, in Oklahoma’s case, vecuronium bromide, and then potassium chloride, which caused cardiac arrest. But sodium thiopental had become unavailable years before, in part due to an international anti-death penalty campaign to cut off supplies. States rushed to find a replacement, tinkering with their formulas. For those hoping to mimic the traditional three-drug cocktail, midazolam eventually became the drug of choice. The problem was that midazolam, a benzodiazipane, is most commonly used as an anxiety medication. Although it is used in surgical procedures, pharmacologists warned that its ceiling effect meant that upping the dosage, as Oklahoma did in its revised protocol, made no practical difference; it could not ensure a person would remain unconscious over the course of an execution. As the other drugs took hold, the result would be an excruciating death, a person would be paralyzed, while suffering a sensation akin to being burned alive.

Yet Oklahoma forged ahead. Like many states, it turned to dubious pharmaceutical sources for its drug supplies, while insisting that the origins of its execution drugs must be kept secret. Seeking an injunction from a District Court before his scheduled execution in early 2015, Charles Warner and his fellow death row plaintiffs argued that “by attempting to conduct executions with an ever-changing array of untried drugs of unknown provenance,” the state was pursuing “a program of biological experimentation on captive and unwilling human subjects.”

The District Court denied the challenge. On January 12, 2015, a three-judge panel of the 10th Circuit Court affirmed, rejecting an emergency motion that would have stayed Warner’s execution. Judge Gorsuch joined the decision. Warner was executed three days later. Witnesses reported his last words were “my body is on fire.”

In a cruel twist, Warner had sought a stay from the Supreme Court on the night he was killed, but was rejected, 5-4. In a dissent, Justice Sotomayor criticized the denial, pointing out that the justices were poised to take up the legal challenge to Oklahoma’s lethal injection protocol. “I hope that our failure to act today does not portend our unwillingness to consider these questions,” she wrote. Indeed, just days later, the Supreme Court granted certiorari in the case, too late to spare Warner’s life. A man named Richard Glossip was now the named plaintiff.

Oral arguments in Glossip v. Gross took place on April 29, 2015. They were ugly and heated. Justices Samuel Alito and Antonin Scalia railed against anti-death penalty activists for making it harder for states to get better execution drugs. Justice Sotomayor interrupted the Oklahoma solicitor general to say she was “substantially disturbed” by his claims about midazolam’s effectiveness, for which she found zero supporting evidence. The drug had clearly been chosen for its availability rather than its efficacy; state experts used sources like, a website that warns it is “not intended for medical advice, diagnosis or treatment.” An amicus brief from 16 pharmacologists warned the justices that midazolam was not capable of rendering a person unconscious for the purpose of execution. And a key piece of evidence submitted by the state to explain why it chose midazolam was later proved to be false. Nevertheless, in June 2015, the Supreme Court upheld Oklahoma’s protocol, 5-4. Justice Alito authored the opinion, with the circular reasoning that, because the Supreme Court has held the death penalty to be constitutional, there must be a method to carry it out. In her dissent, Sotomayor disagreed. A state “does not get a constitutional free pass simply because it desires to deliver the ultimate penalty,” she wrote. “Its ends do not justify any and all means.”

In a perverse postscript to the legal saga over midazolam, autopsy records would later reveal that Oklahoma killed Charles Warner using the wrong drug, a discovery made public only after Oklahoma came close to doing the same with Richard Glossip later that year. Executions have been on hold in the state ever since. Judge Gorsuch may be a bit player in this sorry legal episode, but that does not entirely excuse him.

In fact, Gorsuch had an opportunity to weigh in on the mess in 2016, when a lawsuit brought by the family of Clayton Lockett came before the 10th Circuit. As BuzzFeed noted after Trump announced his nomination, Gorsuch joined the panel of judges who rejected the suit, dismissing the botched execution as an “innocent misadventure.” Legal experts pointed out that the phrase, while stunningly callous in context, is nonetheless specific to Supreme Court precedent dating back to 1947, which essentially holds that since executions inevitably go wrong from time to time, individual cases of botched executions do not violate the Eighth Amendment. Such an age-old concept could hardly be blamed on Gorsuch. Nor could a judge so loyal to legal precedent flout the holding.

Yet if joining the majority did not distinguish Gorsuch as uniquely craven or cold, nor did it prove him particularly brave or independent. Other decisions have inspired reflection in Gorsuch. He is hailed for thoughtful opinions; he once wrote a concurrence to a ruling he authored himself, a fact brought up repeatedly during his confirmation hearings. Yet he had nothing to say about Lockett’s torturous death. His was simply a vote for the status quo — a measure of how normalized such cruelty has become.

The ruling that spawned the notion of a botched execution as an “innocent misadventure” shows us how long states have been torturing condemned people to death, then using the law to explain it away. It came from Louisiana, circa 1946, when a black teenager named Willie Francis survived an attempt by prison officials to kill him in the electric chair. A book on the case recounts how witnesses heard Francis scream, “I am n-n-not dying!” as the current failed to kill him. Francis was removed from the chair and successfully executed several days later. The Supreme Court dismissed his ordeal; today it is a legal footnote. Almost 50 years later, in Baze v. Rees, Chief Justice John Roberts cited the Supreme Court’s ruling in the 1947 case to uphold lethal injection.

Like Scalia, the man he was picked to replace, Gorsuch is described as a textualist, a judge who strictly abides by the law as it is written. “I will apply the law,” Gorsuch often intoned during his confirmation hearings this week. Legal precedent is so precious to Gorsuch, he wrote an 800-page book on the subject, joking repeatedly that  it “makes a great doorstop.”

Staunch adherence to precedent is rarely good news for people facing execution, whose challenges can be easily waved away on procedural grounds, even when the facts of their case are objectively egregious. “As it is now, in capital cases, prisoners have a heavy lift if a case makes its way to the Supreme Court,” says Assistant Federal Defender Dale Baich, who has litigated the lethal injection issues in Oklahoma. “I would expect Gorsuch to carefully follow precedent. At the same time, I have to believe that if he sees a constitutional violation, he will call out the government for its conduct.”

Around the same time that the controversies over lethal injection were playing out in Oklahoma, Gorsuch wrote the majority opinion in a capital case called Eizember v. Trammell. The plaintiff, Scott Eizember, had challenged his sentence based on evidence that his jury had been unfairly biased in favor of his execution from the start, an argument rejected by a lower court. While acknowledging that his concerns were “hardly trivial,” Gorsuch rejected Eizember’s argument. As one recent summary of the ruling notes, “Gorsuch’s opinion hinged mostly on the simple question of whether his court could second-guess the state court’s decision.”

At the heart of this question was the Antiterrorism and Effective Death Penalty Act, otherwise known as AEDPA. Signed in 1996 by Bill Clinton in the wake of the Oklahoma City bombing, the sweeping legislation severely curtailed the rights of people in prison to challenge their sentences. It imposed a strict one-year deadline on federal habeas petitions, while barring successive petitions, with very few exceptions. More significantly, AEDPA shifted the balance of power in the judiciary, demanding far more deference from federal judges to state court rulings.

Under AEDPA, petitioners are not entitled to habeas relief unless they can show that a state court decision was “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” This is an exceedingly high bar, one Gorsuch has a habit of emphasizing. “The Supreme Court has repeatedly reminded us that ‘AEDPA’s requirements reflect a “presumption that state courts know and follow the law,”’ he wrote in Eizember, replying to a dissenting judge. “This presumption demands that federal judges ‘afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong.’”

AEDPA has been especially devastating for the wrongfully convicted. “I suspect that there may well have been innocent people who were executed because of the absence of habeas corpus,” former D.C. Circuit Judge Abner Mikva told me last year, recalling his days in the Clinton White House, where he tried to stop efforts at “habeas reform” that would culminate in AEDPA. This danger has proven all too real in Oklahoma, where Richard Glossip has faced the execution chamber multiple times. Gorsuch is among the judges who have rejected Glossip’s appeals, in a ruling peppered with AEDPA citations. It is cases like Glossip’s that have prompted 9th Circuit Judge Alex Kozinski to call AEDPA “cruel,” complaining that the deference it demands from federal courts leaves egregious miscarriages of justice uncorrected. “We now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted,” he wrote in 2015.

It is true that AEDPA’s language leaves little freedom of interpretation. But there are judges who “take it a little too far,” says Singh, the lawyer who represented Mark Christeson, the man executed on the night Gorsuch’s nomination was announced. Some judges see AEDPA as meaning that “nobody ever gets relief, ever,” Singh says. “But to be fair, if someone was reading the statute faithfully, they would take a pretty harsh view of most death penalty cases.”

Gorsuch has adhered loyally to AEDPA in capital and non-capital cases alike. While he insists that he is merely being faithful to federal statute, a law review article published days before his nomination probed a highly technical case, Prost v. Johnson, to show how Gorsuch used AEDPA to sidestep the “difficult interpretive questions” that arise in cases during post-conviction review. The result was a decision that “overvalues proceduralism relative to substantive rights in a way that will have the effect of eroding litigants’ access to courts.”

Gorsuch’s habeas decisions are heavily criticized in a report by the Alliance for Justice, which has vehemently opposed his nomination. It provides several examples, including a number of instances where he dissented from majority opinions finding ineffective assistance of counsel. In Wilson v. Workman, a man on death row argued that his defense attorney failed to present evidence of his mental problems; the Oklahoma Court of Criminal Appeals denied an evidentiary hearing, along with his claim of ineffective assistance. In an en banc ruling, the 10th Circuit found that the state court was wrong, and that it did not merit the deference afforded by AEDPA. Gorsuch disagreed. “This case requires us to interpret the words of a federal statute,” he wrote in his dissent. “That statute says writs of habeas corpus ‘shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings’ unless the state court’s decision is contrary to a Supreme Court precedent, or unless it rests on an unreasonable application of the court’s cases or an unreasonable reading of the facts before it. … This language seemingly brooks no exception.”

Gorsuch’s handling of such cases came up briefly on Tuesday, in an exchange with Sen. Dick Durbin. “Have you ever written an opinion finding that a defendant’s Sixth Amendment right to effective assistance of counsel was violated?” Durbin asked. “Oh, I’m sure I have, senator,” Gorsuch replied. In fact, Durbin said, citing an article from the Stanford Law Review, out of 52 cases in which there was a question of a defendant’s Sixth Amendment rights, Gorsuch found no violations. In fairness to Gorsuch, Durbin was incorrect: the article actually cites two cases where Gorsuch granted relief in opinions he authored. Durbin “slightly misstated the findings of our article,” one of the authors wrote in an email, noting that one of the cases involved ineffective assistance specifically, while another touched on a different part of the Sixth Amendment.

Nevertheless, the article concludes that if Gorsuch is confirmed, criminal defendants with Sixth Amendment claims “can fairly expect an uphill battle to win his vote.” Durbin brought up the the example Williams v. Jones, in which a prosecutor offered a defendant a plea deal in a second-degree murder case. The defense attorney threatened to quit if his client took the deal, absurdly claiming that he would be committing perjury by pleading guilty. The defendant was tried, convicted, and given life without parole. After his sentenced was reduced to life with the possibility of parole on direct appeal, the defendant turned to the 10th Circuit, which found that he was entitled to further relief. “You were the lone dissent,” Durbin told Gorsuch.

At one point in his confirmation hearings, Gorsuch was lauded for his capital habeas work, suggesting that he is invested in addressing the problem of bad lawyering in death penalty cases. Yet as a judge, his rare findings of error in such cases have been generally followed by the conclusion that the error was ultimately harmless. This tendency among judges is dramatized in the case of Mark Christeson — “a very, very vivid illustration of some deeply seeded problems with death penalty defense,” as Singh said. Among the few safeguards built into AEDPA was the assurance that people like him would get post-conviction attorneys to navigate the law’s myriad provisions. Yet many lawyers have not been up to the task. Christeson’s court-appointed lawyers missed the AEDPA deadline by 117 days. When his federal habeas petition was inevitably dismissed as untimely, the attorneys did not bother to tell Christeson, leaving him under the impression that his appellate proceedings were still underway. Christeson, who has severe cognitive impairments, remained unaware of his attorney’s failure for seven years. In the end, state intransigence and procedural roadblocks kept his new attorneys from saving his life.


We cannot know how Gorsuch might have handled the case of the man executed on the night of his nomination. And while his record certainly suggests he might have waved it through on procedural grounds, this would hardly differentiate him from judges who have spent their careers doing the same. This includes Merrick Garland, whose nomination was so shamelessly derailed by Republicans last year. Indeed, like Gorsuch, Garland dutifully applied AEDPA’s “rigid barriers to relief,” the American Civil Liberties Union observed last year, while noting that this “approach is not surprising.” The LDF echoed the ACLU’s findings, noting that Garland “rarely granted relief to defendants who have presented a claim of ineffective assistance of counsel.”

Garland, of course, never got a hearing. As Democratic senators decried the stolen nomination this week, it nevertheless seemed likely that Gorsuch will be confirmed in the end. That he was never questioned about his complicity in upholding lethal injection or in his rigid application of AEPDA is a shame, but again, not surprising. “A judge who likes every outcome he reaches is very likely a bad judge,” Gorsuch said the night his nomination was announced, a constant theme throughout the hearings. With the death penalty’s cruelest excesses so plain to see, it would have been worth asking whether he has any misgivings about this part of his record.

With Gorsuch yet to turn 50, he stands to be a conservative force on the Supreme Court for decades to come. Yet Singh points out that Supreme Court justices have very different experiences with death penalty cases. “Because almost every capital case eventually makes its way to the court, the justices are exposed to the ins and outs of the death penalty in ways that circuit judges simply are not,” he said. They see the arbitrariness, the flaws embedded in the system. “Many justices find over time that their beliefs about the death penalty change, almost always toward skepticism. So it’s possible that Judge Gorsuch, if confirmed, would eventually become more sympathetic to capital defendants — but it’s far too early to tell.”

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