This term, the Supreme Court will consider the constitutionality of how the lethal injection is administered in Oklahoma. The court’s decision to revisit this issue comes as debate over the procedure and drugs used in lethal injections is boiling over. In the past year alone, we’ve seen horribly botched executions in Ohio, Oklahoma and Arizona. After anti-death penalty groups successfully shamed some European pharmaceutical companies into refusing to export lethal injection drugs to death penalty states, some corrections departments bought the drugs off the black market (triggering surreal Drug Enforcement Administration raids on prison facilities) or switched to other drug protocols that are untested for the purposes of killing a human being. Some of the same corrections departments, sometimes with the aid of state legislatures, have also become increasingly secretive about what drugs they’re using and in what doses. (For a more thorough history of the lethal injection, see Liliana Segura’s guest post for The Watch last year.)
In response to all of this, at least two state legislatures (Utah and Wyoming) have recently considered bills to bring back the firing squad. Some death penalty opponents have castigated the move as ghastly and reactionary. And indeed, judging by statements by some of the bills’ supporters, they seem more about provocation than finding a solution to the dispute.
But the motivations of the bills’ supporters are irrelevant to whether there are any actual merits to the firing squad as a method of execution. And frankly, if we insist on executing people, the firing squad may be the best option.
Before I explain why, I’ll first disclose that I’m opposed to the death penalty, and I have no doubt that my opposition to state-sanctioned killing influences my opinions on which method of execution we ought to use. So read the rest of this post with that in mind.
If you support the death penalty, the most obvious benefit of the firing squad is that unlike lethal injection drugs, correctional institutions are never going to run out of bullets. And if they do, more bullets won’t be very difficult to find. Ammunition companies aren’t susceptible to pressure from anti-death penalty activists, at least not to the degree a pharmaceutical company might be. This would actually remove a barrier to more efficient executions. As someone who would like to see executions eliminated entirely, I don’t personally see this as a benefit. But death penalty supporters might. And there are other benefits to the firing squad, benefits that I think people on both sides of the issue can appreciate.
First, let’s talk about humaneness. When we talk about the humanity of a particular form of execution, we like to think we’re trying to find the most civilized way to put someone to death. We recoil at methods such as the guillotine, hanging and the firing squad as barbaric anachronisms of a different era, when crowds gathered to witness and revel in the event. The lethal injection, most of us think, simply puts the condemned to sleep. There’s no pain, no violence, no spectacle. It’s how civilized countries carry out executions.
The problem is that we really don’t know what happens when the lethal injection drugs go to work. I wrote about this in a 2011 piece for the Huffington Post.
In 2008, the Supreme Court heard arguments against the three-drug cocktail used in nearly every state that performs lethal injections. At issue was the drug pancuronium bromide, which paralyzes the condemned, giving them a placid, peaceful appearance even if they might be suffering immense pain from an improper dose of anesthesia.
And there’s reason to suspect they might: A 2005 study in the Lancet found that as many as four in 10 of those executed may have been given inadequate anesthesia.
A large dose of a single barbiturate would kill just as effectively and painlessly. Opponents say pancuronium bromide isn’t necessary, and it masks any indications a prisoner may be experiencing pain. But as The New York Times’ Adam Liptak reported in 2008, defenders of the three-drug procedure offer an interesting argument in response. “[L]awyers for John D. Rees, the Kentucky corrections commissioner, said the three-chemical combination was safe and painless and produced a dignified death,” Liptak wrote. “Using only a single barbiturate, they said, was untested, could result in distressing and disruptive muscle contractions, and might take a long time.”
Liptak went on to write about how the state of Texas came to adopt the three-drug protocol. “[T]he medical director of Texas’ corrections department, Dr. Ralph Gray, consulted a veterinarian in Huntsville, Tex., Dr. Gerry Etheredge,” Liptak wrote. Etheredge says he told Gray that in veterinary medicine, they used a single barbiturate, and that, “we overdosed it and everything went smoothly. It was very safe, very effective and very cheap.” The problem, Etheredge said, is that Gray feared “people would think we are treating people the same way that we’re treating animals. He was afraid of a hue and cry.”
These anecdotes are telling. Rather than subject witnesses to unnerving post-mortem twitching by prisoners who are experiencing no pain, prison officials instead use a procedure that leaves open the possibility of immense, unimaginable pain, but also ensures that witnesses will see no signs of it. We’ve shunned the effective, painless procedure regularly used in veterinary medicine because we don’t want to give the appearance that they’re treating prisoners like animals. But in the process, we may be treating them worse.
Jonathan Groner, the trauma medical director of Children’s Hospital in Columbus, Ohio and a death penalty opponent, told ABC News in 2008, “One of the great ironies about capital punishment when you look at it historically is that when executions appear to be more humane, the application of the death penalty becomes less humane.”
Groner is right, but his observation may also be beside the point. Traditional lethal injection is more humane if you consider the humanity of the procedure from the perspective of everyone except the person being executed. There is now a storm of controversy about the procedure because those botched executions last year produced some really gruesome images, which were then relayed to the public by witnesses. Had the condemned men in Oklahoma, Ohio and Arizona suffered the same pain and agony, but under the cloak of a more thorough paralytic, we probably wouldn’t be having this discussion. We consider a method of execution humane if it doesn’t make us uncomfortable to hear or read about it. What the condemned actually experience during the procedure is largely irrelevant. The lethal injection likely became the most common form of execution in the United States because it makes a state killing resemble a medical procedure. Not only doesn’t it weird us out, it’s almost comforting.
By contrast, the firing squad is violent and archaic, and judging by the reaction to the bills in Utah and Wyoming, it most certainly does weird a lot of people out. And yet in only the way that should matter, the firing squad is likely more humane than the lethal injection. Slate published a good primer on firing quads back in 2010, as Utah was preparing to execute Ronnie Lee Gardner. (Utah ended the firing squad in 2004, but left it as an option for inmates convicted and sentenced prior to the law.)
According to the Utah Department of Corrections, Gardner will be strapped to a chair for his execution wearing a jumpsuit with a target pinned to his heart. After offering last words, his face will be hooded, and five pre-selected law enforcement officers will aim for that target with .30-caliber rifles from less than 25 feet away. As in traditional military firing squads, one of those shooters’ guns will be loaded with blanks, to keep each one uncertain about whether he fired a fatal shot . . .
This may sound gory, but the limited body of research on death penalty methods suggests that the firing squad is actually a pretty good way to go. A Utah inmate who in 1938 agreed to be gunned to death while hooked up to an electrocardiogram showed complete heart death within one minute of the firing squad’s shots. By contrast, a typical, complication-free lethal injection takes about nine minutes to kill an inmate.
Death penalty lawyers and human rights groups argued that mix-ups in the drug cocktail administered in most states could result in a long, painful death, tantamount to torture. The Supreme Court rejected that argument. But corrections officials who insert needles and administer the lethal injection drugs have no medical training, since the professional associations of both doctors and nurses have barred their members from participating in executions. The Oklahoma medical examiner who first designed the most common lethal injection protocol critiqued his own method in 2007, after learning about problems with its administration . . .
By contrast, shooting is simple and deadly. It’s easy to find psychologically stable, trained professionals with experience shooting to kill. Assuming that the executioners aim with that purpose, the four-bullet protocol provides a measure of certainty that one bullet will strike the heart, leading to a near instantaneous death.
There is also some evidence that fatal gunshot wounds of the kind sought by executioners are not only relatively swift, but also not terribly painful. According to a 1993 study of the relative pain associated with different execution methods, gunshot gets the highest rank when compared with lethal gas, electrocution, hanging, stoning, and other popular methods. (The paper assumes that the executions go off without a hitch, and gives lethal injection similar high marks.)
Deborah Denno, a professor at Fordham Law School who has studied execution methods for nearly two decades, said she’d pick the firing squad if offered Gardner’s choice between the two methods. “To me, it seems like the more humane choice,” she said.
This sets up a final argument in favor of the firing squad: There is no mistaking what it is. There are no IVs, needles, cotton swabs or other accoutrements more commonly associated with healing. When we hear about an execution on the news, we won’t hear about an inmate slowly drifting off to sleep. We’ll hear about guns and bullets. Killing is an act of violence. That’s what witnesses will see, and that’s what the reports will tell us has happened. If we’re going to permit the government to kill on our behalf, we should own what we’re doing.
This is where a critic might argue that as a death penalty opponent, I’m merely arguing for the method of execution that I think is most likely to turn people off to the death penalty. I’ll be honest: I hope that’s what will happen. I hope that when confronted with a method of execution that’s less opaque about what’s actually transpiring, more of us will come to realize that we no longer need capital punishment. But I’m not particularly optimistic that will happen. I suspect that there’s a strong segment of the public (and probably a majority) that will support the death penalty no matter how we carry out executions.
Regardless of its impact on the death penalty debate, if we must continue to execute people, the firing squad has a lot to offer. It isn’t just the most humane form of execution now realistically under consideration, it is the most humane from the correct perspective — the experience of the condemned. It brings no concerns about the supply of execution materials. It raises no issues about medical ethics — it doesn’t blur the lines between healing and hurting. It’s honest. It’s transparent. And it is appropriately violent.