Maurice Chammah of The Marshall Project writes:
Six years ago, a man on death row in Nevada named
Scott Dozier said he wanted to give up his legal fight and be executed, but
there was a problem. Prison officials couldn’t find lethal injection drugs.
Amid the ensuing legal turmoil, Dozier tossed off his own solution, telling me
during an interview, “I’d have been just as happy if they took me out back
and shot me.”
Dozier’s death, in 2019, was ruled a suicide, but
now his words seem prescient. On Thursday, South Carolina scheduled the
execution of Richard Moore — convicted of murder in a 2001 convenience story
robbery — for
April 29. Because state officials say they can’t secure lethal injection
drugs, they will give him the choice between the electric chair and the firing
squad. Officials have spent $53,000, by their own estimate, to renovate part of
a prison to allow a three-person firing squad to carry out executions,
including adding bulletproof glass to protect witnesses.
South Carolina’s not alone: Oklahoma and Mississippi
have also formally adopted the firing squad, though Utah remains the only state
that has actually used the method in the last century. The U.S. Supreme Court
has told death row prisoners that if they want to fight lethal injection in
court, they need to propose an alternative. Following dozens of botched,
evidently painful lethal injections in recent years, prisoners in at least 10
states have been making a surreal argument: They would prefer the
firing squad.
So, are we really about to start shooting prisoners?
Although the method strikes many as cruel and archaic, conversations with
scholars and a review of history suggest we should also ask why we have so
consistently avoided the firing squad. The answers suggest that this
is about more than just another execution method. The firing squad dredges up
some of the core contradictions at the heart of American capital punishment.
“It’s an almost instantaneous death, it’s the
cheapest, it’s the simplest, it has the lowest ‘botch’ rate,” said Corinna
Lain, a law professor at the University of Richmond. (Federal judges have
made similar points.)
At the same time, it’s “more honest,” she said. Lain and other scholars have
argued that Americans have long wanted — not always consciously — to disguise
the violence of capital punishment. “We don’t want a mess,” wrote Douglas
B. Kamerow, a former assistant surgeon general, in The BMJ, a medical journal
published by the British Medical Association. “We want these evil people to disappear,
to be dead, but most of us don’t want to feel bad about how they died.”
At one time, Americans didn’t seem to feel so bad
about the firing squad. Numerous men were executed this way during the Civil
War, and soon after, the Supreme Court approved of
the method. In the 1930s, a Utah prisoner named John Deering allowed a doctor
to hook him up to an electrocardiogram as he faced the guns, and his heart
stopped in 15.6 seconds. (Even when nothing goes wrong in a lethal injection,
the process takes minutes.)
But the method fell out of favor, as state leaders
came to prefer executions that would appear technologically ‘modern’ and
wouldn’t invite a public spectacle. In the early 20th century, hangings — which
many felt looked too much like illegal lynchings — were moved from courthouse
squares to behind prison walls, and eventually replaced by the electric chair.
“We’ve gone from stoning to crucifixion, to quartering, to burning people at the
stake, to hanging,” Texas legislator Ben Z. Grant told his colleagues in 1977,
asking them to abandon the electric chair, which “has become a circus sideshow”
and “has a way of making heroes out of those being punished.”
Instead, Grant proposed lethal injection,
which premiered
in Texas in 1982 and became the dominant method throughout the country. But
around 2010, big pharmaceutical companies began saying they didn’t want their
products to be used to kill, and cut off the supply of drugs. Some prison
officials started buying drugs secretly, using cash and hiding the names of
their new suppliers. Some experimented with new drugs, including fentanyl.
Tennessee returned to the electric chair, while Alabama and Arizona built and
refurbished gas chambers, which they have yet to use.
In many states, prisoners went to court, arguing
that various drug combinations would violate the Constitution’s ban on “cruel
and unusual punishment.” And they had evidence: Men were gasping and choking on
the gurney. In 2014, an Oklahoma prisoner named Clayton Lockett writhed,
groaned and convulsed for more than 40 minutes after he was administered lethal
injection drugs. His peers sued, but the Supreme Court ruled
against them, declaring that “some risk of pain is inherent in any method
of execution,” and “while most humans wish to die a painless death, many do not
have that good fortune.”
But the court went further, issuing what Justice
Sonia Sotomayor derided as a “macabre challenge”: If prisoners want to fight an
execution method, they need to propose a “known and available” alternative in
court. In Oklahoma, the state asked men on death row to indicate their choice
on a paper form. Some refused to engage. “Suggesting a method for how the State
will kill me would make me complicit in my own death,” Julius Jones (who
separately maintains
his innocence) said in an affidavit.
Defense lawyers, charged with trying to save the
lives of death row clients, now have to advise those clients on what way of
dying they should fight for. “I’ve talked to many lawyers in that position, and
it is dark, dark, dark,” said Laura Porter, a lawyer who directs the anti-death
penalty 8th Amendment Project. “What the Supreme Court has asked of people
feels impossible.”
Across the country, prisoners are proposing the
firing squad as a better alternative to lethal injection. To make that
argument, they’ve enlisted James Williams, a Texas emergency room doctor and
firearms instructor who regularly appears in courtrooms as an “expert in the
firing squad protocols.” Williams, who declined an interview for this story,
testified on behalf of a Nevada prisoner at a court hearing last November.
According to a transcript, Williams said he’d
studied the protocols of Utah, the U.S. military and several other countries.
He’s spoken to gunshot victims, and when he was 18 he took a bullet to the
chest. All of this led him to conclude that being shot is “relatively painless
compared to virtually all of the other means of execution that we have
historically used through the past four centuries.”
Lawyers for Nevada countered that some firing squad
executions didn’t go as planned and were likely painful. They debated the data
on the subject, which is scant and contested. Williams explained that in one
Utah case it appeared “that the execution team deliberately did not aim for the
target for reasons that are unclear to me, possibly to make the individual
suffer more.” In one of the hearing’s stranger moments, Williams went so far as
to tell the court there is a way of using a gun that’s even less prone to
error: “a nice quiet bullet to the back of the head, aiming for the brainstem
and instantaneous death.”
That returns us to the question of why Americans
didn’t return to the firing squad until now. Legislators have used words like
“medieval,” “archaic” and “barbaric” to describe it. “I think there is a
deep-seated need to differentiate state killing from the actions of the person
being put to death,” said Lain, the law professor. “The firing squad is so
explicitly violent … The state is doing what murderers do.”
As the only state to use the firing squad in the
last century, Utah is a place to look for insights, although the method’s use
there is idiosyncratic, bound up with Mormon
beliefs about the necessity of blood being literally shed. On three
occasions since 1977, the state placed a hood over a prisoner’s head and
strapped him to a chair set amid sandbags. Five shooters stood roughly 20 feet
away and aimed for a round white target over his heart; one had a non-lethal
bullet, based on an old tradition allowing each shooter to preserve a kind of
deniability. Utah lawmakers have often expressed a fear that the method makes
the state look bad and places too much attention on the condemned.
At the last firing squad execution, in 2010, more
than 150 journalists showed up, and according to Fordham law professor Deborah
Denno, many people around the world volunteered to shoot the guns. “It showed a
side of the death penalty that’s kind of sadistic, people clamoring to be an
executioner,” she said, which makes it more difficult to separate state
executions from the public frenzy that accompanied lynchings well into the 20th
century. “People think of lethal injection, and they think of a flu shot. It
seems so violent to have a bullet go in you.”
In South Carolina, the new
protocol also involves a hood and a target over the heart, but the
shooters will be just 15 feet away. Prisoners and their lawyers are asking
the state courts to hold off on any executions until the plan has been
subjected to more legal scrutiny, calling
it “barbaric.” (They’re also contesting the electric chair and other
elements of the state’s law around execution methods, passed last year.) They
focus on the fact that, unlike Utah, the state plans
to use just three shooters and has not disclosed the caliber of rifle,
“thus increasing the risk of error.” In response, a spokesperson for the South
Carolina Department of Corrections pointed to the agency’s filings in state court,
asserting that the method is “quick,” has a long history in the U.S. and has
gained the approval of various federal judges.
Ultimately, Denno and others said, the death penalty
remains popular, but not if it’s bloody. Judging by Utah’s experience, if a
firing squad execution is carried out this year, it will tap into the public’s
ambivalence and set off public debate about executions as a whole. Federal
judge Alex Kozinski wrote
in 2014, “If we, as a society, cannot stomach the splatter from an
execution carried out by firing squad, then we shouldn’t be carrying out
executions at all.”
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