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July 22, 2014

After Kozinski's candor, what will SCOTUS due about First Amendment stay in Arizona capital case?

The question in the title of this post follows up the news, reported here by the AP, that the full Ninth Circuit yesterday denied Arizona officials en banc review of the remarkable panel ruling putting in place an execution stay on First Amendment grounds (basics here).   The AP reports that Arizona is, unsurprisingly, planning to ask SCOTUS to vacate the stay, and I suspect First Amendment challenges to executions protocols will become commonplace nationwide if SCOTUS leaves the stay in place.

Chief Judge Alex Kozinski make extra sure his dissent — which is available here along with another dissent authored by Judge Callahan for 11 other members of the Ninth Circuit — garnered extra attention by providing these candid comments at the close of his operion about the fundamental problems with lethal injection as an execution method:

Whatever happens to Wood, the attacks [on lethal injection execution procedures] will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. See Callins v. Collins, 510 U.S. 1141, 1143 (1994) (Scalia, J., concurring in denial of certiorari) (“How enviable a quiet death by lethal injection . . . .”). But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

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 guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. 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.

While I believe the state should and will prevail in this case, I don’t understand why the game is worth the candle. A tremendous number of taxpayer dollars have gone into defending a procedure that is inherently flawed and ultimately doomed to failure. If the state wishes to continue carrying out executions, it would be better to own up that using drugs is a mistake and come up with something that will work, instead.

July 22, 2014 at 09:59 AM | Permalink


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"a procedure that is inherently flawed and ultimately doomed to failure"

So, though he is restrained from saying so by USSC precedent, the system is unconstitutional as applied? Anyway, the taxpayer is conflicted, which is why it is seen as "worth the candle." The taxpayer also doesn't want the blunt effect a firing squad brings. They are squeamish. Unlike Kozinksi, current doctrine allows this to be the case, even if the system is "doomed to failure."

Will the 1A argument attract Kennedy? He loves those things.

Posted by: Joe | Jul 22, 2014 10:19:07 AM

The LIB 9th circus deserves its name and reputation...Scotus will overturn this in minutes...

Posted by: DeanO | Jul 22, 2014 7:31:00 PM


That's that.

Posted by: Joe | Jul 22, 2014 7:54:57 PM

Having been both a prosecutor and a defense lawyer in the 9th Circuit for many years ,

I say it's great to be in a jurisdiction where judges are highly intelligent and think for themselves.

Posted by: 9th circuit lawyer | Jul 22, 2014 8:12:53 PM

Under Lawyer dumbass, a term of art, not an epithet, is a picture of that Kozinski. A brilliant individual made totally stupid by the legal indoctrination.

Posted by: Supremacy Claus | Jul 24, 2014 3:18:10 AM

I feel like C.J.K. is missing a step between (1) "the guillotine ... seems inconsistent with our national ethos" and (2) "inflict[ing] massive damage" by "[firing] [e]ight or ten large-caliber rifle bullets ... at close range" is consistent with our national ethos.

Posted by: Michael Drake | Jul 25, 2014 1:58:30 PM

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