The court and the death penalty


The Supreme Court, in the week of Nov. 13, declined to hear or halt the execution of four prisoners on death row in Arizona, Texas, Oklahoma, and Alabama, respectively.This sets a record, allowing so many executions to go forward in a single week.

The most famous execution in Massachusetts occurred in 1927 when Nicola Sacco and Bartolomeo Vanzetti died in the electric chair. No evidence put them at the scene of a double murder, but they were Italian immigrants and anarchists. And they had refused to submit to the draft. Anticommunist, antisocialist, and antianarchist hysteria during the 1920s “Red Scare” contributed to their conviction and subsequent deaths.

The last execution in Massachusetts took place in 1947 in the Charlestown State Prison, when two men were electrocuted for murder. Eight years later, the prison closed for good.Then-Governor Paul Dever noted that the penitentiary was “a bastille that eclipses in infamy any current prison in the United States.” It was a “disgrace to our commonwealth.”

Massachusetts repealed its death penalty law in 1984. Today, some 27 states, the U.S., and the U.S. military still have capital punishment on the books. The Supreme Court has long debated the issue of whether it has outlived its usefulness, and whether it is immoral in contemporary society.

Seven years ago, in Glossip v. Gross, now-deceased Justice Antonin Scalia and now-retired Justice Stephen Breyer highly differed in their opinions. The case concerned the use of an initial drug to render a prisoner unconscious. On many occasions, it failed to work, and the prisoner suffered severe pain. Richard Glossip argued the drug violated the Eighth Amendment’s prohibition of cruel and unusual punishments. A bare court majority ruled against him.

In his concurrence, Scalia wrote that the original meaning of the Eighth Amendment allowed capital punishment. After all, the Fifth Amendment specifies that a state may deprive a person of life as long as he has had access to due process, that is, the legal procedures in place to defend himself.

Breyer’s dissent argued that it was time to end capital punishment. First, the exoneration rate, leading to the release of prisoners on death row when their innocence is later proved, is very high (some 187 inmates to date). Second, the defendant and victim’s race lead to greater numbers of death sentences for African Americans. Third, the long delays between sentencing and execution are cruel.Finally, it has become an increasingly rare punishment. In 1999, 98 prisoners were executed, but in 2021, just 11.

Which brings us back to the week of Nov. 13. On the morning of the 16th, the court declined to block the execution of an Arizona inmate who was executed later that day. In the afternoon, the court allowed the execution to go forward for a prisoner in Texas who died that night. In the evening of the 16th, an Alabama inmate faced lethal injection, but the court refused to stop it.His execution was set for the next week.Finally, an Oklahoma prisoner was executed on Nov. 17 after the court declined to intervene.

The Alabama prisoner was not, however, executed as planned. Alabama officials called it off when they could not insert the intravenous lines in his veins to administer the lethal drugs. It was the third time this year an execution had to be halted in Alabama.

Botched executions are not new. Amherst College Professor Austin Sarat estimated that 3 percent of all attempts went wrong from 1890 to 2010. In his 2014 book, “Gruesome Spectacles: Botched Executions and America’s Death Penalty,” he ascribes the highest rate of failure to those involving lethal injection. Prison staff, in most of these cases, had a difficult time finding a suitable vein to insert the catheter.

Sometimes, death did not occur at all when the needle fell out. In one instance, the deadly chemicals spread toward witnesses, who had to be evacuated from the scene. At other times, it took several minutes, even up to an hour or more, for a prisoner to die after suffering convulsions and pain.

Opponents of the death penalty argue this is the reason why the death penalty should end.Proponents contend that it is not only permitted under the Constitution, but it is required to punish those found guilty of heinous crimes like mass murder or the murder of a child.

The court has never held the death penalty to be unconstitutional, although in 1972, it came close. It ruled that its implementation was so arbitrary among the states that they had to rewrite their capital punishment laws. And most did. Four years later, executions again began in the states, leading to the 1999 record noted above.

In any event, it is crystal clear that the Supreme Court, with its current makeup, will not intervene to stop it. It remains the responsibility of the people of each state to decide whether they want to follow the lead taken by Massachusetts and 22 other states that have repealed their capital punishment laws.


Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for more than 40 years. His book “American Constitutional History” is now in its second edition.


  1. regardless of my personal opinion about the morality of capital punishment, I am completely dumbfounded that the executioners have never heard of fentanyl.
    It is basically free to the authorities, as nearly every police department in the country has confiscated some of it at some point.
    When first administered, it creates a sense of euphoria,followed by drowsiness. It completely relaxes the pulmonary muscles to the point the “victim” simply stops breathing.
    It is guaranteed to kill painlessly and quickly. It can be administered orally.
    I would assume that a high percentage of the people on death row have used it at some point. Why not give them one last high, and let them go out with a smile on their face?

    • Where is this guarantee you speak of written? If the guarantee is not fulfilled who provides compensation? Do you actually know anyone who has experienced fentanyl? Can you imagine the state trying to go before a judge and say they were going to use seized illegal narcotics to execute someone? I bet even Clarence Thomas would find this beyond the pale. You don’t need to comment on everything all the time.

      • Harrison– that guarantee is not “written”- it is self evident in the statistic that over 50,000 people died from fentanyl overdoses last year in the United States.
        Among those statistics is a close friend who died about 6 years ago.
        So, ok, a right wing judge wouldn’t like using seized illegal narcotics.
        They could buy the stuff from the companies that make it.
        The MV hospital has enough of the stuff on hand to kill dozens of people.

    • Don, to answer your question: “Why not give them one last high, and let them go out with a smile(s) on their face(s)?” Perhaps they don’t deserve to go out with smiles on their faces, but rather grimaces of terror.

  2. Dukakis lost to Bush when answering a death penalty question. Remember. That and sticking his helmeted head out of a tank.

    • Dukakis lost because the Bush team used Willie Horton as a political pawn to prey on the implicit and overt racial fears of white people.
      And sticking his helmeted head out of a tank…

  3. Willie Horton was a vicious and violent criminal in jail for life without parole and was furloughed and then again committed terrible crimes. Everyone had reason to fear Horton whether he be black or white. It had nothing to do with dog whistles and overt racial fears but everything to do with terrible judgment of Dukakis and his furlough program and it deserved to be brought out. Dukakis was asked on TV if his wife were raped and left for dead, would he install the death penalty, and with zero emotion he simply said NO. Even his wife was annoyed.

    • andy –Dukakis stood his ground and was true to his convictions.
      What if you were asked a similar hypothetical question about your hypothetical underage daughter who wound up pregnant by Willie Horton ?
      Would you support abortion then?
      Would your hypothetical daughter be “annoyed” if you said “NO”?

  4. Keller you will never get it will you. What Dukakis should have said as an answer is something like this: ”I would have wanted to kill him with my bare hands– I would have been so enraged and filled with hate, but no, in the final analysis I would leave it to the law and not to my own emotions”. Dukakis simply said ”No” like a robot.

    • Why waste words ? Politicians should get to the point and answer questions directly.
      Kind of refreshing, don’t cha’ think ?
      Another reason you should have voted for him.

    • andy—-ok– you once again tell us what a liberal should have said.
      Answer the question. Try to be honest.

      • EC contraception pills are highly effective up to 72 hours after rape. They are contraceptive pills in high doses and are NOT abortion pills. Does that answer your creepy question?

  5. I hope that Jack’s next opinion piece talks about the constitutionality of suspending the constitution in order to put trump back in office.
    In case the hard core republicans here have no idea what I am talking about, since right wing media circuses are too busy reporting on Hunter Biden’s laptop and the tragic murder of 4 white college students to report it ;

    Thanks to the Times for having Mr. Fruchtman on board.
    And thank you for your informative pieces,Jack

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