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August 19, 2016

"The Firing Squad as a 'Known and Available Alternative Method of Execution' Post-Glossip"

The title of this post is the title of this timely article now available via SSRN authored by execution-method expert Deborah Denno. Here is the abstract:

In Glossip v. Gross, the United States Supreme Court’s most recent effort to review a state’s lethal injection protocol, the Court affirmed Oklahoma’s use of a drug called midazolam and also stressed that petitioners had failed to “identify a known and available alternative method of execution that entails a lesser risk of pain.”  This Article proposes that the Glossip Court’s “known and available alternative method of execution” requirement, however objectionable, adds another dimension to execution method challenges that attorneys must address.

As Justice Sonia Sotomayor’s dissent in Glossip notes, the requirement also strengthens the viability and suitability of the firing squad as an appropriate means of execution.  For example, the firing squad has a long history and world-wide application, making it a “known” method; it is also an easily “available” method, given the pervasive use of firearms in our society for purposes such as law enforcement and self-protection.  There is also ample evidence suggesting that the firing squad is currently the most humane and reliable method of execution and that it meets the “lesser risk of pain” standard.  

Indeed, the primary hurdle faced by advocates of the firing squad is the method’s “primitive” or “violent” image.  Yet this Article contends that there is no evidence that such an image is deserved, quite the contrary. Witnesses to modern firing squad executions describe a process that may be far more sterile in perception and procedure than lethal injection — a viewpoint that may come to be shared by the public and prisoners alike.  In Glossip, Justice Sotomayor’s dissent briefly yet convincingly touches on reasons why death row inmates may prefer the firing squad over lethal injection, marking the first time that a Justice proactively and favorably compared the firing squad — or any other execution method — to lethal injection.  Such practicality may with time trump perceived barbarity in favor of the firing squad as states are increasingly unable to obtain acceptable lethal injection drugs.

August 19, 2016 at 09:28 AM | Permalink

Comments

The firing squad is a too direct and blunt way of executing someone, I think, to many people, to much like the actual crime. This, perhaps in a misguided fashion, factors into what is considered "cruel." See also, the desire to paralyze the person before executing him or her, which in practice can cause problems.

The article notes the one time a firing squad was used outside of Utah since 1900, there was opposition since those who would have had to carry it out "balked at carrying out a sentence they thought resembled cold-blooded murder" though "marksmen from all over the world wrote to Nevada’s warden to volunteer their efforts." Some special machine was rigged to do the deed, which I guess could be done today too.

Novelty isn't the test for 'unusual' as shown by the introduction of new methods over the years. Still, it's a difficulty. Even lethal injection had animal analogues. Still, if we have a death penalty, the firing squad might be the best way. Personally, since I don't think we should, it's a sort of unnecessary quandary.

[The latest method deemed by some as promising is a different form of gas chamber. But, the firing squad has the advantage of precedent. "Gas chamber" has its own negative image problems too. Perhaps, the article should have discussed the alternative a bit more. But, overall, looking over it, it looks like a good article.)

Posted by: Joe | Aug 19, 2016 10:16:10 AM

[The article briefly references nitrogen gas in a negative way including citing this article:

http://www.newyorker.com/news/news-desk/how-oklahoma-came-to-embrace-the-gas-chamber?intcid=mod-latest.]

Posted by: Joe | Aug 19, 2016 10:26:13 AM

The thing with neutral gas is that you don't actually need a chamber. The chamber part of "gas chamber" was to protect everyone else, cyanide based poisons are incredibly dangerous. N2 on the other hand is not dangerous at all (if it were we'd all be in trouble already).

For a neutral gas execution something as simple as a plastic mask used for surgery would likely be enough.

Posted by: Soronel Haetir | Aug 19, 2016 2:43:15 PM

Maybe, simply "death chamber."

Posted by: Joe | Aug 19, 2016 3:45:08 PM

sick

Posted by: Don't Ask | Aug 19, 2016 5:03:52 PM

"sick" in what way?

The death penalty? Or, trying to find the best way to do something that might be 'sick,' but will be done. The rules of war comes to mind.

Posted by: Joe | Aug 21, 2016 10:12:56 AM

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