The death penalty continues to keep the United States stuck in a 19th century wild west frontier mentality, with the nation standing as a barbaric execution example along with the constant execution machines of China, Iran and Saudi Arabia. In all likelihood, Trump’s Supreme Court nominee Neil Gorsuch will help allow the nation’s death penalty machine to proceed virtually full speed ahead.

This week, the Supreme Court denied relief to a death row inmate alleging severely unnecessary pain that can come from execution by lethal injection using the sedative midazolam, and the next day granted another death row inmate the right to challenge his trial lawyer’s presenting expert testimony to the sentencing jury that black men are more likely than non-black men to commit future violent acts.

In Arthur v. Dunn (Feb. 21, 2017), Justice Sotomayor, joined by Justice Breyer, calls the Supreme Court to task for refusing to review Arthur’s Eighth Amendment challenge that midazolam-based lethal injection is more cruel and unusual than execution by firing squad. Justice Sotomayor’s eighteen-page dissent in Arthur is an important read, and demonstrates Justice Sotomayor’s aversion to sweeping Eighth Amendment issues under the rug for capital cases.

In Buck v. Davis, ___ U.S. ___ (Feb. 22, 2017), capital defendant Buck’s trial lawyer knew that the defense’s expert on the low likelihood of Buck’s future dangerousness, believed in statistics that black men are more likely than non-black men to commit future acts of violence. Buck is African American, and his trial lawyer nonetheless presented said expert witness’s testimony to Buck’s sentencing jury. The jury recommended a death sentence, and that is the sentence Buck received.

Buck applies Strickland v. Washington’s (466 U. S. 668 (1984)) two-part Sixth Amendment ineffective assistance of counsel analysis, concluding that Buck’s lawyer performed deficiently by introducing such race-based evidence to the sentencing jury, and that Buck was thereby prejudiced. The 6-2 majority opinion, penned by Chief Justice Roberts (a solid conservative on death penalty matters) points out that the Constitution prohibits prosecutors from presenting such race-based evidence, and precludes capital defense counsel from doing the same.

Sadly, Justice Thomas — here joined by Justice Alito — shows himself in Buck again to be reliable for the nation’s death penalty machine to proceed full speed ahead.