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April 21, 2011

Should problems with lethal injection prompt return of other execution methods?

The question in the title of this post is prompted by this international news piece, headlined "Call for firing squads as UK bans lethal-drug exports."  (Hat tip: Crime & Consequences.)  Here are excerpts:

British efforts to halt the sale of lethal-injection drugs to the US have been seized on by American death-penalty supporters.  They are calling for the method to be scrapped in favour of firing squads or a return to the gas chamber.

Within hours of a British export ban on sodium thiopental and other drugs coming into force on Friday, a leading death-penalty advocate in California said that a modernised gas chamber was "the obvious solution" to a backlog of more than 700 death-row inmates whose fate depended on state approval of a new method of execution.

In New York, a prominent law professor who favours execution as "retributive" justice called for a return to the widespread use of firing squads as a form of capital punishment that "doesn't pretend to be something else"....

Kent Scheidegger, of the Criminal Justice Legal Foundation, [recommends] a modernised gas chamber in which cyanide gas is replaced with a neutral gas such as helium.  The effect on a prisoner would be similar to that of hypoxia on a pilot suffering oxygen deprivation at high altitude, Mr Scheidegger said. "It feels like nothing. You just feel kind of woozy," he added. "For anyone thinking longer-term about alternatives to lethal injection, this is the obvious solution."...

New York Law School professor Robert Blecker said lethal injection should be abandoned -- not for practical reasons, but because it sanitised a process that should hurt.  "It conflates medicine with punishment," he said.  "How we kill those we detest should in no way resemble how we kill those we love.  "Firing squad is my preferred method," he said.

April 21, 2011 at 08:49 AM | Permalink


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Why not go with Hanging...its cheap and US still manufacturers rope...I think.

Posted by: DeanO | Apr 21, 2011 10:23:38 AM

Yes, there is no way that relying on one drug company in a country unfriendly to the death penalty is sustainable.

Posted by: MikeinCT | Apr 21, 2011 10:50:12 AM

I like Kent's hypoxia method. Just like anesthetics we have lots of experience and know that pain is just not in the cards. Both handing and firing squads have enough room for botching to job that I'm not sure they are good choices.

Posted by: Soronel Haetir | Apr 21, 2011 10:54:45 AM

I wonder why the Kent’s method (helium) wasn’t used in gas chambers to begin with. It seems far preferable to cyanide.

Barring that, I think either the firing squad or hanging are preferable to lethal injection. Both are much simpler and proven to work.

Posted by: Marc Shepherd | Apr 21, 2011 11:29:36 AM

This is a sad blog.

Posted by: anon | Apr 21, 2011 12:24:52 PM

anon --

"This is a sad blog."

Why? The DP is consistent with the Constitution (see Baze), is approved of by the public by better than 2-1, and is the only thing resembling justice for some truly hideous cases. Justice may sometimes be sad, but only because crimes may sometimes be mind-bending in their depravity.

Posted by: Bill Otis | Apr 21, 2011 2:27:28 PM

The firing squad is much too quick. The same for hanging. As for helium gas, that's a pansy way to kill. Let's face it,"drawing and quartering" is the mode of execution that fits best with the retributionist theory of punishment. After all, the pain is lingering and truly excruciating. And the spectacle, while no doubt revolting to a small segment of contemporary audiences, will act as a deterrent like no other.

Posted by: anon11 | Apr 21, 2011 3:04:25 PM

Drawing and Quartering? Why not, and consistent with that, do it in full daylight, out in public, in the most transited areas of cities: Times Square, Union Square, downtown Dallas and Houston, downtown L.A. Make sure men, women, and children of all ages are able to get up close to watch, and broadcast it on You Tube and major networks. Encourage schools to broadcast it in classes for children to watch. After all, it is the epitome of justice and the preference of some of the most accomplished academics in the land. It would certainly give children the lofty aspiration of being executioners, and actually taking part in the justice heralded. What higher calling could there be?

Posted by: anon22 | Apr 21, 2011 3:41:46 PM

anon22 --

I'll endorse the broadcasting of executions you suggest when you endorse the broadcasting of the murders. If we're going to see the result, let's see the cause too.

We can start with the torture, sexual mutilation and murder of Dylan Groene, age 9, which his sister, 8, was forced to watch. The killer VIDEOTAPED this horror so he could masturbate to it.

Wanna take a guess what the surge in support for the DP there would be if that were put on public display?

See, e.g., http://sprocket-trials.blogspot.com/2008/08/jurors-forced-to-watch-duncan-torture.html.

See also, http://www.klewtv.com/news/27241289.html.

The idea that a prison sentence, no matter what its length, represents justice for this nauseating pervert and multiple, serial killer is beyond preposterous.

Posted by: Bill Otis | Apr 21, 2011 4:29:52 PM

While I have made my position clear that I believe execution is the proper outcome after most felony convictions, even I would say that drawing and quartering is amongst the set of barbaric practices that the founders specifically envisioned being beyond the pale of the eight amendment.

Posted by: Soronel Haetir | Apr 21, 2011 4:40:07 PM

Soronel --

Correct. You might find it odd, as I do, that people like anon22 are horrified by things that don't and won't happen in the USA, while you and I are horrified by things that actually DO happen.

Posted by: Bill Otis | Apr 21, 2011 4:57:38 PM

Anon writes, "This is a sad blog."

Well, yeah, the topic is punishing people for committing crimes. You were expecting sweetness and light?

Posted by: Kent Scheidegger | Apr 21, 2011 5:51:25 PM

@anon22: "Drawing and Quartering? Why not"?

For the obvious reason that drawing and quartering would be the gratuitous infliction of pain for its own sake, as opposed to bringing about the demise of a death-sentenced inmate in a manner that, even if not guaranteed to be entirely pain-free, isn't just making it painful and gory for the sake of making it painful and gory.

"and consistent with that, do it in full daylight, out in public, in the most transited areas of cities . . ."

Ghoulish as that sounds, if they started publicly hanging murderers who, say, kill witnesses or judges, that would send a rather strong message that murderering witnesses and judges is something that society *really* does not tolerate.

Posted by: guest | Apr 21, 2011 6:09:47 PM

guest --

In addition to what you note, the overwhelming bulk of recent scholarship shows that capital punishment, even when practiced (as it is) almost out of sight, STILL has a significant deterrent effect on would-be killers.

Posted by: Bill Otis | Apr 21, 2011 7:15:34 PM

@Bill Otis
And if you want a less scientific, anecdotal case you should look to Illinois.

Posted by: MikeinCT | Apr 21, 2011 8:52:27 PM

These people won't come to the right path ever no matter what ever punish you give them. The only way to deal with them is to hang them... dat's it... sounds good?

Posted by: Data Room | Apr 21, 2011 9:41:19 PM

Couldn't we just have the defendant spend a week listening to Bill Otis -it legal torture, his incessant chatter is cheap, and it's worse than hanging.

Posted by: Steve Prof | Apr 21, 2011 10:04:37 PM

i seem to recall we used to do executions in public. but got tired of dealing with the wave of pickpockets and other one on one crime that occured during them.

doing it on tv would be a waste of time consdering what they can FAKE on it...

Posted by: rodsmith | Apr 22, 2011 12:48:30 AM

as for this guest!

"Ghoulish as that sounds, if they started publicly hanging murderers who, say, kill witnesses or judges, that would send a rather strong message that murderering witnesses and judges is something that society *really* does not tolerate."

While i have no problem hanging or whever anyone who killes a witness. IF judges would stop letting proseuctors off when they are caught comitting fraud, extortion and out and out lies that send people to prison who are factual innocent ....maybe people would stop trying to kill em!

the u.s. supeme courts latiest bit of criminal stupidity is a PERFECT EXAMPLE!

Posted by: rodsmith | Apr 22, 2011 12:51:00 AM

More interesting and more important from the Public's Right to Know perspective would be this: how does a story like this come about?

One or two people promote the firing squad and that is news. How were the connections made that led to the slant the story has? Did the reporter know the commentators? Is there a conservative list of those who are willing to comment? (yes) Who initiated the story? This stuff fascinates if for no other reason than these kinds of back stories are so mysterious.

Posted by: George | Apr 22, 2011 1:50:25 AM

"Couldn't we just have the defendant spend a week listening to Bill Otis -it legal torture, his incessant chatter is cheap, and it's worse than hanging."

Steve Prof, your ad hominem attack on someone with whom you apparently disagree adds nothing to the debate.

Moreover, in my opinion, Bill is 100% right. I'm a liberal Democrat in most respects. However, I once worked on a capital murder trial. I saw all of the evidence--including the autopsy photos. One of my tasks was to sit with the victim's family and explain what was going on while the defendant who had robbed them of their daughter sat there smirking. The trial turned me into an unabashed proponent of the death penalty. I just couldn't come up with any plausible reason why the murderer in this case should continue to live. I am certain that support for the option of using the death penalty in aggravated first-degree murder cases would go up even more if people actually sat through a capital-murder trial or if newspapers published victims' autopsy photos next to the murderer's picture.

Posted by: alpino | Apr 22, 2011 2:58:02 AM

ALPINO, o course you are right but you missed that it adds humor.

Posted by: Steve Prof | Apr 22, 2011 8:21:44 AM

ALPINO, if adding to the debate where the standard for posting -- this comment section would not exist:)

Posted by: Steve Prof | Apr 22, 2011 8:24:56 AM

Steve Prof --

"ALPINO, o[f] course you are right but you missed that it adds humor."

In saying that "of course" Alpino is right, are you agreeing with his major point that we should keep the death penalty?

Posted by: Bill Otis | Apr 22, 2011 8:40:24 AM

This is a sick sad blog.

Posted by: anon | Apr 22, 2011 12:48:08 PM

Agreed. Anyone else find it ironic that this is getting serious, bloodthirsty sounding discussion on Good Friday?

Posted by: anon2 | Apr 22, 2011 1:45:11 PM

anon --

"This is a sick sad blog."

No it isn't, but if it were, no one is requiring you to keep reading it.

P.S. Substantive argument is not forbidden here; indeed, I believe it's encouraged.

Posted by: Bill Otis | Apr 22, 2011 2:28:25 PM

anon2 --

"Anyone else find it ironic that this is getting serious, bloodthirsty sounding discussion on Good Friday?"

The fact that there have been some unjustified executions hardly means that NONE are justified. This eluded you?

Posted by: Bill Otis | Apr 22, 2011 2:34:24 PM

I, too, found the irony of this disussion on Good Friday! Another foray into the technological middle ages. Right; I could choose not to read. It's a good way to stay informed on what the opposition is thinking (I use the term loosely). Have a happy holiday!

Posted by: anon | Apr 22, 2011 4:42:54 PM

anon --

"It's a good way to stay informed on what the opposition is thinking (I use the term loosely)."

If the opposition can't think, you should be winning big time. Instead, you're losing by better than 2-1, including Barack Obama and the entire Supreme Court. I guess none of them can think. Is that about it?

Posted by: Bill Otis | Apr 22, 2011 5:36:06 PM

Sad and crying (Otis) and sick and barfing (Scheidegger) at the same time.

Must be worse than the gas chamber.

Perhaps Bill and Kent would be happier if they just made inmates read their blog comments.

Posted by: Anon | Apr 22, 2011 5:59:53 PM

Anon --

Yes, we all know you have attitude.

Do you have argument?

Are you willing to furnish a reason that the torture-killer of Dylan Groene should receive less than the maximum legal sentence?

The jury that heard the case returned the sentence after three hours of deliberation. Do you know more about it than they?

Posted by: Bill Otis | Apr 22, 2011 6:58:47 PM

This is the first time I agree with Bill Otis. In favor of DP with constitutionally adequate representation and procedural protections.

Posted by: Steve Prof | Apr 23, 2011 11:59:33 AM

Regarding this discussion and the Good Friday/Jesus aspect in particular, there is an interesting post on the California Correctional Crisis blog today that picks apart the assumed religious and political divides on the dp, and argues that support and opposition to the dp is more nuanced than many assume.


Posted by: anonymous | Apr 23, 2011 1:01:59 PM

.. and I'm very intrigued by the statement of the last professor quoted in the original article, above: "How we kill those we detest should in no way resemble how we kill those we love." What?

Posted by: anonymous | Apr 23, 2011 1:41:32 PM

anonymous --

Using the crucifiction of Jesus as a fable against the death penalty is less a display of the strength of abolitionism than a confession of its weakness.

In the article you cite, the author refers to a "re-enanctment" of Jesus's trial, complete with a death penalty phase. The absurdity of such a thing is lightly passed off with this: "Of course, setting what was essentially a political trial in a Roman colony in the context of the American criminal justice system does not do justice to historical context..."

Well, yes. It "does not do justice to the historical context." Translation: It has absolutely nothing to do with the death penalty as it exists in American law now and since Gregg v. Georgia.

It is a mark of how desperate abolitionism has become that it resorts to mythic "re-enactments" and street theatre pegged at True Believers instead of discussing actual cases litigated in the modern era.

In an earlier comment, I discussed one such case, that of the grotesque torture and murder of Dylan Groene. The abolitionists on this thread refuse, not merely to justify their position in that case, but even to acknowledge that it exists.

Instead they want to talk about Roman colonial law a few thousand years ago.

And then you wonder why the public isn't buying it and continues overwhelmingly to support capital punishment.

Posted by: Bill Otis | Apr 23, 2011 8:16:50 PM

Bill Serious academic, friend of Prof. Berman, He does that as a regular act. Federal Attorney. Did you know each other? Marc Osler.


He is too pious, too high fallutin' to debate an ambassador from earth and his high school education, including his religious training. Jesus, if he existed, was a left wing progressive, it appears. If you ever run into him, ask him if anyone at Yale Law ever told him the meaning of the word, reasonable, and why it is the central word of the common law.

Posted by: Supremacy Claus | Apr 24, 2011 6:22:41 PM

SC --

I do not know Prof. Osler and have never met him. I understand that he is now teaching at St. Thomas Law School in Minnesota, where I have spoken a couple of times at Federalist Society events, but I haven't run into him.

Posted by: Bill Otis | Apr 24, 2011 8:54:03 PM

Mr. Otis,

With all respect, I do not believe that either supporters of the death penalty or opponents of the death penalty, are monolithic, whether on this blog or anywhere else.

Additionally, I believe it's mistaken to read too much into any person's lack of response to any aspect of another's comments (or indeed to any original posting) regardless of the issue, including capital punishment.

Posted by: anonymous | Apr 25, 2011 12:12:27 AM

anonymous --

My experience is that supporters of the DP tend not to be monolithic, in that I have never heard of a serious supporter who backs the DP for all murder, nor would any such position be even arguably reasonable.

On the other hand, abolitionists -- or at least those who are active in debates like this one -- are indeed monolithic, in that they oppose the DP in all circumstances, no matter what the underlying facts of the offense or the offender.

I agree that reading "too much" into a non-response can be mistaken. Unfortunately, this leaves open the question of what is "too" much and what is the right amount.

As I have explained, talking about the Crucifiction of Jesus says next to nothing -- if not absolutely nothing -- about the DP topic actually before us, that being capital punishment as practiced in this country in the 35 years since Gregg. By contrast, the quite recent imposition of the death penalty on the killer of Dylan Groene says a good deal about it, because a horrifying episode like that explains why (as noted in the Hastings Law article you cited), the DP continues to draw heavy majority support across partisan, ideological and religious lines.

I take your point that opinions about the DP are more nuanced than generally thought, but I believe the more significant point is that support remains very broad virtually wherever you look in the American public.

When the current issues with the DP are illustrated by a current case -- like the Groene case -- and a discussion of that case gets bypassed in favor of a discussion of the execution of Jesus in an ancient and alien legal system, then I do indeed wonder whether what's going on is something beyond merely a "lack of response" and is, instead, ducking.

Thank you for the moderate tenor of your remarks.

Posted by: Bill Otis | Apr 25, 2011 5:19:24 AM

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