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March 3, 2017

"The Return of the Firing Squad"

The title of this post is the headline of this lengthy new US News & World Report article, which carries this subheadline: "The execution method is making a comeback — but some argue that means the end of capital punishment is near." Here are excerpts:

An ongoing shortage of lethal injection drugs — coupled with the grisly spectacle of botched executions and a number of legal challenges to the use of less-effective substitute drugs — has several states, and at least one inmate, calling for the return of the firing squad.

In 2015, Utah Gov. Gary Herbert, a Republican, signed a bill that established firing squads as an execution option, reversing an 11-year ban....  In Mississippi, a bill authorizing firing squads cleared the state House in early February before the state Senate shot it down. Firing squads are on the books in Oklahoma, and lawmakers in other Southern states are said to be considering similar legislation.

Meanwhile, in late February, the U.S. Supreme Court denied the request by Thomas Arthur, an Alabama death-row prisoner who wanted the state to fatally shoot him rather than subject him to the likelihood of a painful death from secret, experimental lethal-injection drugs.

But Supreme Court Justice Sonia Sotomayor excoriated her colleagues for tacitly endorsing execution methods that could reasonably be considered as cruel or inhumane — and she pointed to firing squads as the way to go.  "Some might find this choice regressive, but the available evidence suggests that a competently performed shooting may cause nearly instant death," Sotomayor wrote in a blistering dissent.  "In addition to being near instant, death by shooting may also be comparatively painless.  And historically, the firing squad has yielded significantly fewer botched executions."

Death penalty opponents, however, say firing squads aren't fail-safe, the condemned don't always die immediately and the procedure smacks of tin-horn dictatorships, undermining America's global standing as a champion of human rights. That states are looking to salvage the practice, they say, is yet another sign that capital punishment is on its way out.

"I think that the death penalty is in big trouble in the United States," says Austin Sarat, an associate dean and law and political science professor at Amherst College. "The legitimacy of capital punishment has been sustained in part by the belief that we could find a way of execution that would be safe, reliable and sane," says Sarat, the author of "Gruesome Spectacles: Botched Executions and America's Death Penalty."  He notes the same arguments officials are making for the firing squad — it's quick, it's humane, it's reliable — were the same ones proponents used for lethal injections as its more clinical, civilized replacement. "It's a back-to-the-future [method] that was replaced for a reason," Sarat says....

"The elusive search in the modern era for humane methods of execution was a reaction to the perceived barbarity of death by methods like the firing squad," Phyllis Goldfarb, a George Washington University law professor, writes in an email. "Death by firing squad is not pain- and botch-free," Goldfarb writes, noting some marksmen have missed the heart target and hit other parts of the body, while others have fired prematurely. "The condemned dies from blood loss and loses consciousness when blood supplied to the brain drops precipitously. Even when the people in the firing squad hit their target as intended, it may take at least a couple of minutes for the condemned to die and sometimes much longer."

To that point, firing-squad proponents have a quick retort: So what? "How could a civilized society place a man before a firing squad, [opponents] ask," writes Joseph R. Murray II, a guest columnist for the Jackson, Miss., Clarion Ledger, commenting on the debate over the state's proposal to have inmates die by the bullet.

"To these folks, that's third-world justice. But isn't a firing squad the most humane way to execute a criminal? Isn't death instantaneous?" Murray asks. "Where lethal injection could go awry, causing prolonged pain, and electrocution could not work effectively, there is no doubt multiple bullets do the job quickly and safely."

Goldfarb says if authorities want to be absolutely certain that an inmate dies instantly without pain or suffering, they can choose another target on the body.  "Firing a gun at point blank range into the head" is 100 percent effective, and "would cause a near-instantaneous death.  But it would be exceedingly violent and destructive," Goldfarb writes. "But could we ask someone to inflict that kind of violence on another as part of their job as a state employee?  If the state were to authorize such a gruesome spectacle in the name of law, how could we maintain our standing in the world as a protector of human rights?"

Still, she predicts the firing squad debate could go far in the current law-and-order climate ushered in with President Donald Trump's inauguration. "I see the present moment as one in which fair debate based on factual evidence is being threatened and 'fear of the other' who would use violence to harm 'us' is being fanned for political gain," she writes. "These are the emotional conditions that have allowed the death penalty to persist in America — providing a simple answer to a complex problem."

Still, "there may be pockets of renewed death penalty support, using whatever methods are permitted," writes Goldfarb. "But I don't think that approach will become widespread again, as it degrades us as a society and depends on rhetoric that is divisive, cynical, extremely racialized, and ultimately corrosive to America."

March 3, 2017 at 08:25 AM | Permalink


It is interesting that the firing squad is the method flagged by Sotomayor in Glossip (the second time, the defendant offered it as an alternative), but reading over her remarks, the two-edged sword might have factored in.

"The States may well be reluctant to pull back the curtain for fear of how the rest of us might react to what we see."

I continue to think this is a major reason it is looked on with disfavor though as a matter of the needs of the defendant, the medical community, obtaining supplies & providing a means that has precedent and is not "unusual" in ways that will cause problems [since it has been used in this country for execution purposes] it has something going for it. It has been used so little that the last part at least is a mixed bag. But, it's still better than something totally novel like inert gas.

There are those who see inert gas as almost a patently obvious solution. We heard that before. Anyway, the firing squad is getting a bump of late.

Posted by: Joe | Mar 3, 2017 11:09:55 AM

Bizzaro time in the US continues...

Posted by: anon | Mar 3, 2017 11:46:17 AM

More than 90% of us will die a prolonged, painful, and humiliating death, preceded by loss of many functions. And, we have not killed anyone, nor been convicted of any crime.

The use of ipse dixits, expressions of false feelings, and inappropriate hyperbole by the lawyers, in the above, serve to churn up controversy. The latter is to sustain the lucrative death penalty appellate business. It is in bad faith.

would like to see a reverse litigation. The rent seeking lawyer has delayed the execution so long, that most condemned die of natural causes, the above prolonged, painful, and humiliating death mentioned above.

So, the murderer of little Jessica died of anal cancer after prolonged torments by the medical profession, including diagnostic procedures, surgeries, chemotherapy. His estate should have sued the appellate lawyers and judges for a wrongful death. They caused his horrifying torments. They did so with knowledge of his cancer and its agonizing and humiliating consequences. This finding should subject these cruel and greedy lawyers to exemplary damages for malice. To deter.

I know the rent makes the lawyer cruel, heartless and inhuman. Given a choice, anal cancer and its medical management or the firing squad, which would each of the lawyers here pick for themselves or for a loved one.

I would support an aggregate claim by all condemned prisoners who died of painful natural causes as a result of the appellate lawyer's irresponsible obstruction of the death penalty for wrongful and horrifying death by natural cause. The claim would be by the class of condemned prisoners against the classes of appellate lawyers nd and of appellate judges. The self dealt immunities of the judges would violate the due process rights of the plaintiffs, and violate any state constitution provision granting access to the courts.

Posted by: David Behar | Mar 3, 2017 12:31:43 PM

Proponents of this option should realize that its history has been filled with less than quick and painless deaths. It's harder to find people willing to be part of a firing squad than a lethal injection machine. Think Utah could pull off 8 shootings in a month, like they are planning to do with lethal injection?

Posted by: Paul | Mar 4, 2017 9:35:32 AM

Can an automatic firing squad be set up?

Posted by: Joe | Mar 4, 2017 10:53:04 AM

"I think that the death penalty is in big trouble in the United States," says Austin Sarat, an associate dean and law and political science professor at Amherst College."

Oh, well if a professor at Amherst College says it then...

Posted by: whatever | Mar 4, 2017 5:07:00 PM

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