« "After troubled execution in Arizona, Ohio to use same drugs, dosage" | Main | Senator Rand Paul and Governor Chris Christine continue to make the case for criminal justice reforms »

July 25, 2014

Is Judge Kozinski recent opinion proof that "the death penalty is doomed"?

Thw question in the title of this post is drawn from the headline of this New York Times opinion piece by Jesse Wegman entitled "Why the Death Penalty Is Doomed." Here are excerpts:

Alex Kozinski, a federal judge on the Court of Appeals for the Ninth Circuit, has gone on the record saying he is “generally not opposed to the death penalty.” But his opinion in a recent case may nevertheless find itself in the history books one day — in the section explaining why the death penalty in America finally ended....

Judge Kozinski [in a recent noted dissent]... launched into a meditation on why we kill people the way we do. The late 1970s shift to lethal injection was undertaken, as the judge suggested, in the belief that it was a “more humane” and “less brutal” method of execution than earlier ones — the firing squad, the electric chair, the gas chamber. But that belief was mistaken, he said. “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.”

The judge then shifted into a register generally associated with those firmly planted in the abolitionist camp. “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.”

So how should we do it? Judge Kozinski made the point that the guillotine is the most foolproof method of ending a life, although he rejected it because it “seems inconsistent with our national ethos.” (Which ethos is that? The one against state-sponsored decapitation? Or against relying on the French in matters of punishment?)

Clearly, the two-hour ordeal that occurred in Arizona last night is more evidence that lethal injection is far from humane. Instead, as Judge Kozinski said, the firing squad is the most quick and reliable of the existing methods. And then he added this coup de grâce:

“Sure, firing squads can be messy,” the judge wrote, “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.”

July 25, 2014 at 01:24 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Is Judge Kozinski recent opinion proof that "the death penalty is doomed"?:


Wbatever Judge Kozinski advocates, the hierarchy does the opposite. So his opinion is a good sign. Chapell is safe.

Posted by: Supremacy Claus | Jul 25, 2014 2:58:57 PM

I think people have made suggestions like his for awhile. He's a Judge who did it, but he's a quirky Judge who would do something like that. Kozinski, Easterbrook, or Posner saying something like that is not surprising and isn't likely to move anything on this.

Posted by: Erik M | Jul 25, 2014 3:15:22 PM

The judge also spoke to the media beyond that opinion:


I'm somewhat wary about such remarks but regardless think the first two comments are reasonable -- what he says is worthy of respect, but he's Cassandra figure to some extent.

To repeat myself, as well, the public is willing to be somewhat dishonest, evasive, of the nastiness (if we are to use that language) of the procedure. It's not totally different from their thoughts about how what they eat is processed.

Posted by: Joe | Jul 25, 2014 10:25:57 PM

I think that I have made suggestions for firing squads for killing criminal defendants for awhile on this blog. This Judge has some good statements. But I believe in the firing squad of six in honor of the Sixth Commandment whereby the Governor is the lead shooter. The Governor would also have pardon rights right up to the time of pulling the trigger. This would have been good down in Texas when Rick Perry was off campaigning for the Presidency when a clemency and pardon petition came to his empty desk. Rickyboy ignored it and the guy was killed by the People of the Great State of Texas. It later was revealed that he was innocent. So if Rickyboy had to be there in Austin or whatever other city limits they do the shooting, perhaps he would have given the dead guy some consideration before pulling the trigger.

Posted by: Liberty1st | Jul 26, 2014 9:38:16 PM

Or we could go the Frog route and have the Governor pull the lever that drops the blade that cuts off the head. The head rolls into a basket and then the body and head are put into a wood coffin and given Christian burial rites. And as we head into the weekend in Austin, Rick Perry can be seen practicing the lever pull each day out in the yard behind the Governor's Mansion.

Posted by: Liberty1st | Jul 26, 2014 9:42:02 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB