The Washington PostDemocracy Dies in Darkness

Guillotine, firing squads better than lethal injection, says prominent federal judge

Executions are “brutal, savage events” — and if society wants to carry them out, it ought to stop pretending otherwise, forget about lethal injections and return to “more primitive — and foolproof — methods.”

Like the guillotine — or on second thought, the firing squad.

That’s the view of Alex Kozinski, one of the nation’s most prominent appeals court judges, a Ronald Reagan appointee generally regarded as a libertarian conservative and, by standards of the judiciary, a bit of a “troublemaker,” who likes to stir the pot.

Kozinski dissented Monday from a decision of the full U.S. Court of Appeals for the 9th Circuit to stay the execution of Joseph R. Wood until Arizona told Wood more about the drugs that would be used in the execution and the personnel who would carry it out.

Kozinski let loose on the whole attempt, as he put it, 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.”

Executions “are, in fact, nothing like that … and nothing the state tries to do can mask that reality,” he wrote. If the state’s going to kill, it should at least do it effectively, he said.

“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,” he wrote in his dissent, “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.”

Unlike drugs used for lethal injections, he said, guns 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,” as unlike medications, “firearms have no purpose other than destroying their targets.”

In case you’re wondering, Kozinski is not anti-capital punishment. But he’s always had problems with the way the death penalty is handled in the courts.

Legal journalist Emily Bazelon described his views in a 2004 Legal Affairs article. Subhed: “If the Ninth Circuit were a circus — and some say it is — Alex Kozinski would be its ringmaster. Presenting the most controversial judge on our most controversial court.” She wrote:

He proclaims that “vicious killers deserve to be executed,” yet he has voted to stay execution in almost half of the published decisions about death row cases in which he has participated. He has also called for the death penalty to be reserved for the most heinous criminals — “mass murderers, hired killers, airplane bombers.” Kozinski’s argument for scaling back capital punishment is pragmatic rather than moral: Despite support for the death penalty in the political arena, he argues, we’re stuck with a cumbersome appeals process created by the courts, which means that the death penalty in its current form wastes resources and robs victims’ families of closure.