The opponents of the death penalty have created a highly successful campaign against judicial executions over the past two decades. Death by hanging, the guillotine, the electric chair, and firing squad have all but disappeared in this country; and the death penalty has been outright abolished in most European countries. Most recently–in order to make execution all but impossible to accomplish—death penalty opponents have succeeded in creating serious questions about lethal injection as a method. Two botched executions and the refusal of domestic and foreign pharmaceutical companies to supply the necessary cocktail of drugs for the purpose has brought about another de-facto moratorium. The last figurative nail in the coffin of execution appears to be ready to be driven; the Supreme Court of the United States is poised to hear arguments that lethal injection is truly cruel and unusual punishment. Most scholars on the subject have come to the opinion that SCOTUS will establish a final ban on lethal injections. That should bring down the curtain on the use of the death penalty as the punishment for the most heinous of crimes for which it has been considered justifiable in the past.
Not so fast. It is possible that the opponents of lethal injection may have been hoist by their own petard and have created the perfect segue for the preservation of the death penalty itself. It is now generally accepted that no drugs for execution will be available in the future. Texas has the last dose left in the states. Utah—facing the same pragmatic problem—has an answer. The state still has legal capital punishment on its books with the only crime subject to the death penalty being aggravated murder, a set of crimes that are clearly set out in Utah law. While lethal injection remains the state’s method of choice, it is not the only choice. The firing squad is also available under certain circumstances. The determination of Utah to continue its program of execution for aggravated murder is reflected in the fact that Utah was the first state in the union to resume executions after the end of the decade long national moratorium which ended in 1976.
At the time the moratorium went into effect in 1967, Utah was the only state which allowed the use of firing squads and gave convicted murderers a choice of method, including hanging and the firing squad. In 1977, the first execution in the United States after the lifting of the moratorium took place in Utah; and it was the killer’s choice to die by firing squad. At the time of this blogpost, the state has nine occupants of death row awaiting execution.
In 1980, when lethal injection became available around the country, Utah let lapse the option of hanging and replaced it with the option—in addition to the firing squad—to die by lethal injection. In 1996, the Utah House proposed elimination of the firing squad option; and in 2004, the legislature removed the right of the condemned to choose the method of execution leaving lethal injection the only option left in Utah. However, three inmates had chosen the firing squad before the change in the law was enacted; and they are all slated to die by bullets, not chemicals. On June 18, 2010, one of them was executed by firing squad, becoming the country’s first sanctioned shooting death in fourteen years.
Because of the furor in the country over lethal injection and the practical fact that the chemicals were—for all intents and purposes—unavailable, the Utah legislature passed a bill requiring the firing squad to be the legal method of execution if the state is unable to obtain the necessary drugs. The bill was signed into law by the governor in March, 2015. Inmates are no longer offered an option if the drugs are not available. In Utah, Firing squads are made up of volunteers chosen from the area where the crime was committed, and there are always far more volunteers than there are actual positions on the squads available. In preparation for the legal defense of the death penalty itself should lethal injection be prohibited by SCOTUS, the sponsor of the Utah firing squad bill, argued that a team of trained marksmen is faster and more humane than the drawn-out deaths involved when—in the unusual case–lethal injections go awry. Since the opponents of lethal injections consider all such executions to be cruel and unusual punishments, even if they go as planned, that only strengthens the arguments in favor of the firing squad.
Currently, Nevada is the only other state besides Utah to have ever used the firing squad; but now, in response to botched lethal injection executions in Oklahoma and Arizona in the recent past, several other states are scrambling to modify their laws. Texas has the most imminent deadline. With impending prohibition of lethal injection to join electrocution as being unconstitutional, other methods are being vigorously pursued.
Oklahoma legislators believe they have come up with a novel—even unique—method which they consider to be foolproof, painless, and humane–nitrogen gas hypoxia. Added benefits are that nitrogen is easy to access, readily available in the United States, inexpensive; and medical experts do need to be involved in the process.
Final legislative approval was given by the Oklahoma Senate without a single dissenting vote on April 9, 2015. Now the Republican governor must make the final decision on the new and untried method to be used if lethal injection is ruled unconstitutional or if the deadly drugs become unavailable. The governor is known to support the death penalty. The sentiment is strong enough in the legislature in favor of using nitrogen gas hypoxia, that even a veto by the governor could be overridden. Critics of using nitrogen gas have valid issues. One obvious concern is that the method has never been tested in humans, and there are even some states which ban its use even to put animals to death (put them to “sleep” as the euphemism goes). There are no reports of nitrogen gas ever being used to execute humans.
If firing squad executions are deemed legal by default with lethal injections being determined to be unconstitutional, the United States will not be a lone pariah country still having the death penalty or even the firing squad. Outside the U.S., fifty-four countries allow executions by gunshot, including China, Vietnam, Uganda, and Afghanistan, according to Cornell University Law School's Death Penalty Worldwide project. Forty-one countries allow full firing squads and others have different procedures, such as by a single bullet at close range. Only nine of those countries are known to have actually carried out a firing squad execution in the last decade. Equally sanguine arguments can be made in favor of other methods of execution if studies are carefully done—guillotine and judicial hanging come to mind quickly. There appears to be no evidence of pain; and at least historically, those methods do not rise to the level of being cruel or unusual punishment.
This lethal injection issue may be a case of “be careful what you wish for” on the part of death penalty advocates. They may well win in the Supreme Court and thereby push the door wide open for firing squads, nitrogen gas hypoxia, or even other methods of execution, some of which remain undiscovered. It is the suggestion of this blogger that the law be changed to read “deserving of the death penalty” but to establish a permanent ban on actual executions. Rather, the person condemned to “death” would be placed on death row without privileges for the rest of his or her natural life. For a convicted mass murder like the Muslim terrorist Dzhokhar Tsarnaev—who perpetrated the Boston Marathon bombing in which two women in their 20s and a little boy were murdered and 250 other people were scarred and maimed for life and changed countless lives for the worse forever–such a penalty may well be the ultimate punishment since he seeks entrance into an afterlife full of rich rewards because he will be a martyr to his twisted cause. The financial savings for such an alternative would be enormous.