« Terrific Piece on Identitarianism by Adolph Reed | Main | Strange Bedfellows #7: Liberty Lists »

Wednesday, June 17, 2015

If Not Lethal Injection, Then What?

With lethal injection on its heels (as a practical matter, maybe constitutional matter too), one question that’s on many a mind is—if not lethal injection, then what?

The electric chair is pretty gruesome—you’re stuck with the sound and smell of burning flesh and it occasionally catches the condemned person’s head on fire. 

Hanging is pretty hard to get right—it’s supposed to kill by breaking the condemned person’s neck, but if the measurements are off (which is often the case), the person ends up either slowly strangling to death or getting decapitated. 

And the gas chamber is reminiscent of Nazi death camps and pretty grisly in its own right—the cyanide pumped into the chamber causes the condemned to die by asphyxiation, but not before a significant amount of gasping, drooling, and retching first.   Arizona got rid of its gas chamber in 1992 when an execution made the state attorney general vomit and the warden threaten to resign if he ever had to use it again.  In 1999, the Ninth Circuit declared it a violation of the Eighth Amendment’s “cruel and unusual punishments” clause.

That leaves the guillotine (not a chance), the firing squad, and Oklahoma’s newest innovation:  death by nitrogen gas.  Today I’ll consider the firing squad.  Tomorrow, nitrogen gas.

My thoughts on the firing squad bring me back to Chief Judge Alex Kozinski’s dissent from the denial of a rehearing en banc in Wood v. Ryan.  I quoted part of that dissent in a post last week, here’s the rest: 

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution. . . . The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood.  If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.

Again, I think Kozinski is on to something here.  Execution by firing squad is fast (around 15 seconds as opposed to lethal injection’s 3-10 minutes, and that’s if done right).  It’s effective (or at least less subject to mishaps than any other execution method—let’s not forget Wallace Wilkerson of 1878’s Wilkerson v. Utah, who cried, “My God! My God! They missed!” and then bled to death for nearly 30 minutes from shots in the arm and torso rather than heart).  And it’s out in the open; no question here about what the state is doing in our name.

Two additional observations merit mention (along with a shout out to the Richmond Law student who recently published a comment advocating the firing squad in Virginia—I had nothing to do with it, by the way). 

First, execution by firing squad scratches that retribution itch.  This is why Robert Blecker likes it—you want blood, you’ve got it.

Second, execution has the unique feature of allowing executioners to absolve themselves from responsibility for the execution.  One of them will fire a blank, and none of them knows who the non-shooter will be.  Blecker doesn’t much like this aspect, but one could see how executioners might—and the states that employ them too.

Death by firing squad makes sense in so many ways.  So why are we hesitant to go there?  My only guess is our delicate palate, but that brings me back to Kozinski’s point.  If we truly can’t handle quick, easy, low-risk executions that show us what executions are, maybe we shouldn’t be doing them.

Posted by Corinna Lain on June 17, 2015 at 05:31 PM in Criminal Law, Law and Politics | Permalink


Thanks everyone for the comments, and sorry for the delayed response (a consequence of traveling, not disinterest, these are great).

Orin, you're right in that all the fuss is over a very small number of executions--2014 had just 35, and Texas, Missouri & Florida accounted for 80% (28/35). But that hasn't seemed to impact the political will to execute, either with lethal injection or, this past spring, with Oklahoma's adoption of nitrogen gas. That bill was proposed in February, passed in April, no problem. I'd think given all the litigation over LI, and the drug companies gumming up the works, that supporters would care about the execution method--and what's more, I'd think they'd opt for simpler methods that have already been ruled constitutional by the Supreme Court. One problem with LI is that you can change the protocols, change the suppliers, change up lots of things, which gives new opportunities to litigate. With firing squad, it is what it is, and the SCt already said it was constitutional. I think it's squeamishness--and I think it's seeing blood that makes us think of it as less humane.

That brings me to the comments on the guillotine--I wrote it off because the guillotine is so much more gory than death by shooting, and I just can't see the American public being ok with a head rolling around on the floor, eyes moving back & forth for 5-6 seconds after, even looking in the direction of someone calling the beheaded person's name, and all while blood is squirting out of the person's neck. Ew. Sorry but I've got the weak stomach on this one...

Finally, Richard, thanks for connecting the dots between private responsibility and public responsibility, and our moves to distance ourselves from both. And so right, we could make this a feature of most any execution. To some extent, we already do with lethal injection by moving the executioner to a separate room from the condemned; they push the syringe from the other side of a wall...

Posted by: Corinna | Jun 22, 2015 3:09:58 PM

Curious passage from Baze v. Rees (plurality):

"Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge. Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection."

The suggestion here is that the firing squad is actually less "humane" than even the electric chair. The means also appears to be seen as "military" in nature (see, e.g., Wilkinson v. Utah) and lingers on in particular in Western states where it also satisfied religious concerns of the Church of Latter Day Saints.

I think the general public is squeamish about such a direct means of killing that is no different in a core way than any garden variety murder by a gun. They might be hypocritical but like CJ Roberts' opinion, I think many see is as less "humane" or civilized than other methods. Kozinski is in the minority here and since the 8A in part is concerned with "usual" accepted punishments, that matters.

Posted by: Joe | Jun 21, 2015 3:46:29 PM

Corrina: You note that the firing squad "has the unique feature of allowing executioners to absolve themselves from responsibility for the execution," in that "[o]ne of them will fire a blank, and none of them knows who the non-shooter will be." That point reflects how these punishments are traditionally implemented, but it seems noteworthy that this feature could be built into virtually any mode of execution. (Eg, ten people receive distributed remote controls, one of which is a dud.)

More broadly, I wonder if there isn't a connection between this "feature" and the broader issue of public responsibility that you're investigating. The presence of multiple shooters is partly to make sure that the punishment is effective, but it also seems to be a step toward eliminating the responsibility of the executioner. The presence of a blank adds yet another level of exculpation, in that each executioner can perhaps tell himself that he didn't inflict any harm at all. Perhaps this added step is defensible so as to eliminate the risk of reprisal--a bit like having the executioner wear a hood or mask. But it also seems like another version of the general tendency to make executions seem less like "shedding human blood." I wonder if Judge Kozinski does or should oppose these practices.

Posted by: Richard | Jun 18, 2015 12:38:54 AM

In medieval times, one of the privileges of being a noble was the right to be beheaded if sentenced to death. Decapitation was faster and less painful than the methods used on the less lucky. The guillotine itself was designed to make decapitation more reliable and less painful (no need to bribe the executioner to make a clean end of things with only one chop). Any serious discussion of less painful death penalty ought to include decapitation. It may be disfavored today not because it is hard on the victim, but because it is hard on the audience, and perhaps because it got such bad press through overuse during the Terror.

Posted by: Aaron Caplan | Jun 17, 2015 11:21:43 PM

You dismiss the guillotine quickly, as did Kozinski in that opinion -- he said it "seems inconsistent with our national ethos." But I genuinely wonder which part of our national ethos he's referring to. Surely it's not a squeamishness about violence -- Americans adore violence. So what is it really? Our desire to be removed from the consequences of the violence that *we* -- i.e., those of us in power, who believe we are doing good in the world -- inflict on others? Is it simply another version of wanting to see our hamburger meat only after it's ground and shrink-wrapped? This is a serious question. Obviously we're not going to institute the guillotine, but just as obviously, as Kozinski says, it's the most foolproof method out there. I think it's worth exploring more deeply why you (and he, and surely many many others) dismiss it out of hand.

Posted by: Jesse | Jun 17, 2015 11:00:48 PM

I don't follow the death penalty closely, but I would speculate that the answer is a mostly combination of three factors: 1) The number of people actually executed is fairly small, making it harder to gather a political coalition to enact changes; 2) Some people who support the death penalty probably don't care what the method of execution is, so they're not all that interested in changing the method of execution, and 3) Among those who support the death penalty, there is probably a cynical sense that whatever is the current method of execution will be deemed a cruel and painful failed experiment, so you may as well stick to the one you have rather than switch to another method that will just be another target. Of course, whether any of these arguments are justified or appropriate is another matter entirely. But I would guess that these are among the reasons.

Posted by: Orin Kerr | Jun 17, 2015 10:48:24 PM

The comments to this entry are closed.