A leading Supreme Court expert has given a scathing assessment of the Pentagon’s plan to live stream a military execution, arguing that the very nature of the spectacle could be precisely what the killer wants.
Steve Vladeck, a Georgetown law professor and constitutional law expert, took issue with the Defense Secretary’s suggestion that the execution of Nidal Hasan, the former Army psychiatrist who murdered 13 people at Fort Hood in 2009, should be broadcast. Writing Monday in his One First Substack newsletter, Vladeck was questioning both the wisdom of the proposal and whether the Supreme Court would intervene to stop it.
Before getting into the constitutional issues, Vladeck argued that airing Hasan’s death would actually serve the killer’s own ends. He called the proposal “colossally stupid” and pointed out it would very likely be yet another step in Hasan’s “homicidal quest for martyrdom.”
Hegseth announced plans to livestream Hasan’s execution, which received pushback from his own party. But Vladeck pointed to another troubling element of the controversy: the Supreme Court’s evolving interpretation of the Eighth Amendment could make it a lot harder to mount a legal challenge.
He wrote that the justices would have previously found a public execution incompatible with the “evolving standards of decency,” citing the Eighth Amendment’s Cruel and Unusual Punishments Clause. He then argued that the Court has been more willing to embrace an ancient view of punishment since Justice Anthony Kennedy retired.
The conservative majority has increasingly stressed how punishments were conceived at the time of the Constitution. That distinction could be the deciding factor, as public executions were the norm in the American founding era.
Vladeck pointed to the Supreme Court’s 2019 decision in Bucklew v. Precythe, which spoke to the long-established understanding of what constitutes cruel and unusual punishment. He also pointed out that the Court had upheld execution by shooting in the 1879 case of Wilkerson v. Utah.
The legal scholar indicated that neither the firing squad nor the public broadcast would necessarily breach the court’s current reading of the Constitution. He also doubted that Hasan would challenge the execution, pointing out that the prisoner in question has apparently shown no desire to pursue any further legal challenges.
Vladeck’s criticism went well beyond constitutional law to the morality of the executions themselves. He referenced a 2014 opinion of former federal appeals court judge Alex Kozinski who described executions as “brutal, savage events.”
Kozinski also contended that Americans should face up to the reality of state-sanctioned killing rather than hide it behind the veneer of humane procedures.
For Vladeck, the whole thing is a case study in just how the Supreme Court’s evolving view of constitutional protections can have consequences which go way beyond this one execution.
His main point was that a form of spectacle which would be utterly unacceptable in modern society could well survive constitutional challenge under the current jurisprudence of the Court.