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October 25, 2007

Could states eager to execute quickly adopt a new execution method?

Today's somewhat peculiar en banc ruling from the Eleventh Circuit today in the Siebert capital case (basics here) was made possible in part because the state of Alabama decided it was important to appeal the stay granted yesterday by an Eleventh Circuit panel (basics here).  Of course, I understand why a defendant facing lethal injection won't stop litigating the issue.  But now I am starting to wonder whether states eager to continue with executions while Baze is pending ought to turn to legislation, rather than litigation.

Specifically, I am wondering what is stopping an execution-eager state from quickly passing legislation to now authorize electrocution (or even a firing squad and/or hanging) in order to go forward with a scheduled execution.  Given the unpleasant aesthetics of various execution methods, perhaps a legislature acting to bring back the electric chair would seem barbaric to the general public.  But is it any more barbaric than what Alabama is now doing: litigating to the hilt in order to make sure the state gets a chance to kill Daniel Lee Siebert before his terminal illness does?

Of course, defendants facing a new execution methods could (and surely would) bring challenges to that method.  But, in these crazy, Baze-y days, a state might have more luck convincing courts to allow an electrocution to go forward than to allow a lethal injection execution. 

Just a thought as concerns grow over back-alley lethal injections.

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October 25, 2007 at 06:34 PM | Permalink

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Comments

It's not how you play the game; it's if you win or not that matters.

Posted by: George | Oct 25, 2007 8:20:40 PM

Doug, the far more interesting question is why states don't just adopt a one-drug all-barbiturate protocol.

Posted by: anonymouse | Oct 25, 2007 8:38:36 PM

The Texas Legislature is not in session again until January 2009, and the earliest a bill could pass might by May 2009. Even if it passed with a 2/3 majority so it could be enacted immediately (a strong possibility, depending on the alternative proposed), a new death penalty in Texas couldn't be enacted until then. If the Governor were going to call a special session over it, he'd have done so by now.

If the Supremes haven't decided on a legal option by then, I can see our Legislature going for the firing squad, or, if need be, they still have Texas' old electric chair on display at the Texas Prison Museum in Huntsville. So at least in my mind, Doc, that's the outside limit to how long your "moratorium" will last.

Posted by: Gritsforbreakfast | Oct 25, 2007 10:04:17 PM

The problem with the "get a new method" train of thought is that the regulations to enforce any new method would have to comply with that state's administrative procedures act (incl. the public comment period). The state APA problem is why most DoC Commissioner's aren't opting for a new set of regs or pushing for a new method -- it is easier & quicker to simply to wait for Baze.

Posted by: nony | Oct 25, 2007 10:15:20 PM

I'm surprised the states haven't seriously considered a return to hanging or the firing squad. Since both methods were known when the Constitution was adopted, there's very little doubt that the Justices would approve them. The high-tech execution methods devised in the 20th century (electrocution, gas, injection) seem more complicated, and no better, than the old ones.

Posted by: Marc Shepherd | Oct 26, 2007 8:00:17 AM

Marc:

The quickest methods of execution, hanging, firing squad, & guillotine, leaves the general public a little too queasy. LI was brought about as a "humane" way of execution, not so much for the the condemned but for those who have to witness it and to society as a whole.

Posted by: anon | Oct 26, 2007 9:08:12 AM

Anon, I do understand that that was the reasoning behind lethal injection. But with further experience, it has become clear that it isn't necessarily the invariably painless, infallible substitute that it was purported to be.

My comment was somewhat tongue-in-cheek: I don't really expect the states to return to the gallows anytime soon.

Posted by: Marc Shepherd | Oct 26, 2007 11:27:09 AM

A single shot to the back of the head at close range is the quickest, most humane execution route. Any "queasiness" about state homicide that does not result in its opposition deserves little respect or deference. There is nothing "humane" about extinguishing a human life, so if you're going to do it, get on with it and be done with the gruesome task, is my personal view.

BTW, the guillotine, I've heard (perhaps it's an urban legend) supposedly leaves the victim temporarily conscious to contemplate their own, brief, headless fate. Maybe somebody has more specific knowledge, but if that's right it may not meet the 8th Amdt standards for the same reason as lethal injection. Just a random thought, probably of no consequence. I don't see the guillotine making a comeback - not in the era of "Freedom Fries."

My bet on the end of the "moratorium," in Texas, anyway - the only place I'm qualified to even guess: If SCOTUS does not approve the current cocktail beforehand, the next Texecution probably takes place in September 2009, using either a new post-Baze approved LI cocktail or, if the case remains undecided, "Old Sparky," the famed electric chair Texas used for executions most of the last century.

Posted by: Gritsforbreakfast | Oct 26, 2007 1:49:59 PM

Grits, I think that's an urban legend. How on earth would anyone know the last conscious thoughts of a guillotined person?

I recall reading that there were attempts to resolve the question, via a pre-arranged signal (e.g., batting the eyelashes) that would demonstrate whether the severed head had a few moments of lingering consciousness. But it never worked.

Posted by: Marc Shepherd | Oct 26, 2007 2:06:16 PM

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