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A Federal Judge Makes a Case For Bringing Back The Firing Squad

And he has a point.
Image: Wikimedia Commons

The latest unsuccessful challenge to the death penalty was a familiar situation with a predictable outcome, but for the dissenting opinion of one judge, who strongly condemned the very practice of lethal injection as “a misguided effort to mask the brutality of executions by making them look serene and peaceful.”

In his dissent, Chief Judge of the 9th Circuit Court Alex Kozinski went on to say that “if we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.”

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Over the weekend a three-judge panel from the 9th circuit court voted to stay the execution of Arizona man Joseph Wood, until the state revealed details about the state's lethal injection drugs. Arizona's attorney general asked for a hearing before the whole court, “en banc,” a request which was rejected, which is the decision that Kozinski dissented from.

Once again, just as it did for the state of Missouri in January, the US Supreme Court lifted the stay of execution with minimal explanation, staying out of the debate over how much states are required to reveal about their lethal injection drugs and their sources until it absolutely has to, it seems. But one judge is ready for confrontation, specifically by the public.

In his decision Kozinski presciently wrote that he has “little doubt that the Supreme Court will thwart this latest attempt to interfere with the State of Arizona's efforts to carry out its lawful sentence and bring Wood to justice for the heinous crimes he committed a quarter century ago.”

He also took the opportunity to relay the history of the death penalty, as it moved from “electric chairs…gas chambers, hanging and the occasional firing squad,” to lethal injection in the 1970s, and then condemn this movement.

“Whatever the hopes and reasons for the switch to drugs, they proved to be misguided,” he wrote. “Subverting medicines meant to heal the human body to the opposite purpose was an enterprise doomed to failure.”

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Lethal injection protocols were designed to paralyze the patient, making the act of a state execution look just like drifting off to sleep. “But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it.”

Kozinski suggested that rather than misusing medicine, we needed to return to the guillotine or the firing squad—methods that use tools unambiguously made for death, and couldn't be interrupted by concerns from drug companies about their products being used for the opposite of their intended purpose, nor the European Union prohibitions on selling their wares for capital punishment, as lethal injection has been.

"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.”

“The weapons 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: firearms have no purpose other than destroying their targets,” he wrote.

“Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. 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.”

This is an argument that I've noticed surfaces without fail in the comment sections below death penalty articles: just shoot the bastard in the head. Generally it comes from someone who seems more interested in vengeance rather than, say, concerns about the constitutionality of an execution.

But if you are some concerned with making sure executions aren't cruel or unusual, you may actually be in favor of the guillotine. It was designed to prevent the botched execution by ax, requires no medical personnel and even the creator of the three-drug lethal injection cocktail has spoken positively of it. "The simplest thing I know of is the guillotine,” he told CNN. “The person's head is cut off and that's the end of it."

But the guillotine has its drawbacks, namely, the grotesque confrontation with what the state is doing in your name and in the name of justice, and we actually can't confront that. During the infamous botched execution of Clayton Lockett, the inmate "struggled violently, groaned and writhed, lifting his shoulders and head from the gurney," according to witnesses. After he struggled for 16 minutes, the blinds separating the chamber from the viewing room were lowered. The process was called off shortly afterward, but a heart attack killed Lockett half an hour later.

It's telling that the window blinds were lowered as Lockett began struggling on the gurney, in order to shield the witness who were supposed to be getting closure from the struggling, suffering, eventual death of a man, that was done, at least in part, for their benefit. Like Kozinski's opinion, this detail hints at an uncomfortable truth: Lethal injection isn't designed to protect the prisoners; Lockett is dead. It's designed to protect the public.