July 21, 2014

Judge Alex Kozinski says the guillotine would be better than the lethal injection, but the firing squad is "the most promising."

Dissenting today from the denial of rehearing en banc in the lethal injection secrecy case of Joseph Wood:
Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful... 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. 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.

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive — and foolproof — methods of execution. 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 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. 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. 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.
Via The Guardian.

66 comments:

Birkel said...

The main questions I have are "Did they do the bad thing?" and "Do they wind up dead?"

Past that, I believe I am in the vast majority who does not care.

khesanh0802 said...

I have to agree that a firing squad would be most efficient. It certainly would eliminate the hypocrisy of the current method … and talk about "closure"!!!

Ignorance is Bliss said...

Put it on pay-per-view and you could turn a nice profit.

Ron said...

the jacobins have taken over.... la Terreur hopefully will not occur here...but What the hell, bring on the guillotine!

Capt. Schmoe said...

I have seen hundreds of dying people, dead people and people who died in front of me over the years. Very, very few had no element of pain, suffering or cruelty as part of the process. Some even expired under extremely unusual conditions.

This concept of a painless death while carrying out a death sentence is absurd. Obviously, deliberate cruelty, such as torture should not be done, nor should unusual methods such as keel hauling, flaying or similar sadistic methods be used.

The firing squad is probably the most practical and cost effective method, but people who have a moral opposition to the death penalty will find a way to obstruct that.

I just wish that opponents of the death penalty would stand solely on the moral aspect of this issue, rather than cloud it with the fallacy of a painless death.

Sebastian said...

"we, as a society" might be able to stomach it, or demand it, but Progressives won't stand for it: unenlightened popular preferences must be defeated, capital punishment eliminated by the Anointed on the courts (in an uncommon bout of honesty, at least Stevens called for a constitutional amendment), punishments for all crime weakened.

But Kozinski is right: the firing squad is best, practically and morally.

Michael P said...

Judge Kozinski is absolutely right; we should have no qualms about such quick, honest methods of execution for criminals convicted of sufficiently serious crimes.

However, our current system has rather too high of a type I error rate: Investigators and prosecutors have a strong incentive to think "we must prosecute someone, this person is someone, so we must prosecute this person", and this leads to the execution of too many people who are either innocent or whose crimes did not warrant the death penalty. Police or prosecutorial misconduct can greatly increase the injustice of these mistaken executions. One way to reduce this error rate is to reduce the number of crimes that are eligible for the death penalty; however, this induced scarcity would also increase the incentives to discover and prosecute such (police- and prosecutor-)career-enhancing cases. Judicial precedent -- and in particular, the various immunity doctrines -- makes it hard to deter aggressive, but not blatantly improper, behavior along those lines.

Ann Althouse said...

He skinned Gilmore right up over his shoulders like taking a shirt half off, and with a saw cut right up the breastbone to the throat, and removed the breastplate and set it in a big, open sink with running water. Then, he took out what was left of Gilmore’s heart. Jerry Scott couldn’t believe what he saw. The thing was pulverized. Not even half left. Jerry didn’t recognize it as the heart. Had to ask the doctor. "Excuse me," he said, "is that it?" The doctor said, "Yup."

"Well, he didn’t feel anything, did he?" asked Jerry Scott. The doctor said, "No." Jerry had been looking at the bullet pattern earlier, and there had been four neat little holes you could have covered with a water glass, all within a half inch of each other. The doctors had been careful to take quite a few pictures. They numbered every hole with a Magic Marker, and turned Gary over to photograph where each bullet exited from his back. Looking at those marks, Jerry could see the guys on the firing squad hadn’t been shaky at all. You could tell they’d all squeezed off a good shot.

Of course, Jerry was always thinking about getting shot himself. It could happen any time on duty. He had to keep wondering what it would be like. Now, looking at the heart, he repeated, "He didn’t feel anything, did he?" The doctor said, "No, nothing." Jerry said, "Well, did he move around after he was shot?" The doctor said, "Yes, about two minutes." "Was that just nerves?" Jerry asked. The fellow said, "Yes," and added, "He was dead, but we had to officially wait until he quit moving. That was about two minutes later."


Norman Mailer, "The Executioner's Song."

The Godfather said...

I heard this story, but can't attest to its truth.

They were picking a jury for a capital murder trial, and each prospective juror was asked whether he could impose the death sentence if the evidence showed beyond a reasonable doubt that the defendant had committed the crime. One juror hesitated. "They do these executions up at the State Pen, don't they?" he asked. Yes, he was told. "Well, OK then, I could only do it on a weekend; I work all week."

Paul said...

I'd personally prefer they just put about 1/2 ounce of C4 in the offenders ears and set it off.

Not like C4 is used for medical purposes anyway.

Ann Althouse said...

Kozinski: "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."

Mailer: "[T]he seat of execution was no more than a little old office chair, and behind it was an old filthy mattress backed up by sandbags and the stone wall of the cannery. They had rammed that mattress between the chair and the sandbags, a last-minute expedient, no doubt, as if, sometime during the night, they had decided that the sandbags weren’t enough and bullets might go through, hit the wall, and ricochet. But the dirty mattress repelled Schiller. He said to himself, My God, they stitched the black canvas neatly around the rifle slots for the assassins. Then he realized the word he was using."

David said...

"He was dead, but we had to officially wait until he quit moving. That was about two minutes later."

Clintonesque. Depends on what the meaning of dead is.

Jim said...

Why not get DVMs involved.
1. I've had pets I loved more than anyone euthanized with little drama except my tears.
2. DVMs have no professional qualms about euthanasia.
3. The drugs are cheaper at the vet.

Seriously, the alternatives to capital punishment were vendettas and blood feuds. We need to consider what we give up when we give up capital punishment. Look at most any inter city. We are almost there.

Carol said...

"Was that just nerves?" Jerry asked. The fellow said, "Yes,"

People lie about death. I've done it myself...no one wants to tell the truth and bring everyone down.

Greg Hlatky said...

I'm opposed to the death penalty myself for several reasons.

First, it creates unnecessary and undeserved martyrs. As the execution date approaches, Goodthinkers blub about the poor condemned; the name of the victim(s) or the circumstances or their death(s) are ignored. Sentenced to life, the murderers would soon be forgotten. Have you heard anything about Mumia or Ira Einhorn recently?

Second, the possibility of executing an innocent person. No one goes into "public service" except for ambition, wielding and abusing power or for lifetime security. I would not want anyone sent to Death Row because some prosecutor deliberately withheld evidence or an LEO blandly committed perjury on the stand.

Third, the unequal application of the death penalty. Women are very rarely condemned compared to men. All they have to do is sob about "abuse" (e.g. the notorious Winkler case) and they get off with a light penalty, time already served or probation. Talk about your gender gap!

AReasonableMan said...

I vote for public executions. Draw and quarter them. Not the women, of course, for modesty's sake they should be burnt at the stake.

Hagar said...

I am against the death penalty because we refuse to take it seriously; as several commenters above have pointed out, there are way too many false convictions, especially in celebrity cases.

But if we are going to have it, then hanging for civilian courts and firing squad for courts martial at least has the small dignity of long usage.

These attempts to avoid responsibility and claim "humanitarian" methods of execution is B.S. There ain't no such thing.

Richard Dolan said...

In a democracy, you reach a certain level of opposition to duly enacted policies that it becomes counterproductive to continue them, even if they are still supported by a majority. That is especially so when opposition is particularly intense among the nomenklatura.

In some states that nominally still have a death penalty, California for example, that point has been reached. Note that the same principle works in many areas -- war and peace, and Obamacare come to mind. With Dems set against any repeat of an interventionist foreign policy, and Reps against any revision to O'care short of repeal, both policies are unsustainable.

Michael K said...

The gas chamber was an efficient and human method for many years. It is all politics now.

Mark O said...

Public hanging. It should be favored by all death penalty opponents.

William said...

Hook up the condemned man to a morphine drip. Give him full control of the wheel that controls the drip. Let him execute himself. Let him understand that if chooses not to exercise this option, then he will be shot the following day......Only people with advanced academic degrees should be allowed to make decisions regarding capital punishment, gun ownership, birth control, and energy policies. The historical record shows that people with advanced academic degrees are right about nearly everything.

Revenant said...

I'm against the death penalty. Not out of moral qualms or anything -- I just don't trust the government at all.

That being said: use a captive bolt gun. That's the thing the killer in "No Country for Old Men" used, for those of you who don't know what they are. They've been used to painlessly slaughter cattle for a long time.

traditionalguy said...

Choke holds are quick.

Cedarford said...

Technology marches along. It is the lawyers dressed in robes that are the problem, not "techniques to kill" quick and clean.

I was thinking about that the other day when a news blurb about the monster Carr Brohers came up. Still alive and kicking 14 years later - With robed ones ready to negate the death penalty, figuring enough time has past that they can trash the death penalty law and Kansans will have to bow to the lawerly elite.

But the whole "cruel and unusual" crap needsto finally stop. Most people die in ways that take longer and involve more pain than what we planned to do to liberals love crushes on death row...So how cruel and unusual is death in every day occurances????

But technology has marched on. The Russians used a "weaponized" form of Fentanyl that immediately shut down the central nervous system of the Chechen terrorists and - being Russians who will find a way to muck up things - 300 hostages, some 180 of which the Russians lacked the personnel at the scene to resusitate in time. 117 dead, 73 "dane bramaged".

Stuff worked so fast that people went unconscious on 1st breath. And died unless mouth to mouth happened.

It might be a solution. Not to make it easier on monsters like the Carr thugs - but to use on a law school that is a hotbed of anti-death penalty activism like Yale.Or a Circuit Court dedicated to overtuning laws passed by the people that do not comport with the Leftist Majority Opinion of Lawyers In Charge - at places like the 9th Circuit.

Of course, killing all the lawyers out sabotaging democracy as their life's work would be a sort of terrorism, despite the wise advice on them going back to at least Shakespeare.

Eustace Chilke said...

The criminal justice system is corrupt. There are too many crimes which means too many death penalty crimes on the books. The police are an insular gang whose priority is not justice but control. Prosecutors are political animals in addition to sharing the problematic motives of police. There is glory and political capital in the prosecution of death penalty cases and no penalty for even willful misconduct by prosecutors. The every day toolbox of prosecutors includes tools that would get a defender who used them jailed. Proof of actual innocence isn't necessarily enough to overturn a conviction, although hundreds of death row inmates have been released in recent decades after being exonerated with DNA evidence. There is no DNA evidence in the vast majority of criminal cases. If there were we would likely see tens of thousands proven innocent. And last but not least, Kenny Hulshof.

But apart from all those reasons I'm ok with the death penalty and I reckon a pistol shot to the back of the head is as quick and painless as it gets.

iowan2 said...

Under what objective standard to judges determine what society will 'stand for'?

Isnt that he role of the legislative branch? Judges by their definition can only determine applicable laws enacted by the legislative branch and carried out by the executive branch. I think I agree with that Prof law blogger last week, this judge should STFU about what society wants. Its not his jurisdiction

madAsHell said...

In other news....
Shoulder pads, and pencil skirts are back in style.

madAsHell said...

What happened to ARM???.....I agree with him!!!

John Lynch said...

In Defense of Flogging. Same sort of thing.

cubanbob said...

Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful... 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. 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. "

Maybe the judge could enlighten us on how this differs from an abortion.

chillblaine said...

Cecile Richards believes that aspiration is the most humane way to carry out executions. She had a pretty good day today. Another thousand in the bag.

Freeman Hunt said...

"He was dead, but we had to officially wait until he quit moving. That was about two minutes later."

Clintonesque. Depends on what the meaning of dead is.


Have you ever seen anybody die? It's weird. It's ambiguous.

Michael Fitzgerald said...

"Hundreds of death row inmates have been released in recent decades after being exonerated by DNA evidence"

Bullcrap. Where? The fact is that less than 2% of capital punishment cases have been overturned on appeal for any reason, including DNA evidence and witness/victim recantation. In the vast majority of capital crimes there is absolutely no doubt concerning the guilt of the murderer.

Todd Grimson said...

A lot of prisoners are quite content living out their lives in prison. Look at the case of Richard Speck. Charlie Manson is another who's happy living an institutionalized life. Check also the Mexican mafia as well as many Crips and Bloods. They wield enormous within the prison and also can have people murdered on the outside. They have access to drugs and submissive sex partners.

The notion that no one can be painlessly, easily put to death with existing medication is absurd. I say this as someone who worked for seven years total in either a surgical intensive care unit or an emergency room.

Anonymous said...

"...we should be willing to face the fact that the state is committing a horrendous brutality on our behalf."

At last, the state is doing something right on our behalf.

"...if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood."

Out of sight, out of mind. An eye for an eye...

Yes, IgnB, profit is good.

Anonymous said...

Michael P: "this leads to the execution of too many people who are either innocent or whose crimes did not warrant the death penalty." Any stat to back up your claim?

"One way to reduce this error rate is to reduce the number of crimes that are eligible for the death penalty" Won't that make the death penalty an "unusual punishment"? Then someone will say taking another person's life is "cruel". Soon the Death Penalty will become unconstitutional.

I think we should give a one time murderer a break: life without parole. A torturer-murderer, a serial killer: Death by hanging, the slower the death, the better.

EDH said...

I've always argued that preserving some element of horror to the state's method of execution has the benefit of acting as a limit on the socially acceptable scope of its application versus a "painless" method.

The crime should have to match the punishment.

EDH said...

I've always argued that preserving some element of horror to the state's method of execution has the benefit of acting as a limit on the socially acceptable scope of its application versus a "painless" method.

The crime should have to match the punishment.

Brando said...

I'm generally against the death penalty because of the irreversable power it gives the government which has proven so incompetent in almost everything government does--with all the screwups and incompetence of our criminal court system there's simply too much potential for putting the wrong person to death. The more you read about prosecutorial misconduct, ridiculous judges (the "affluenza" judge in Texas comes to mind) and juries, the less you want to give the government the chance to execute someone.

That said, it is at least a good bargaining chip for prosecutors to get better plea deals, and at times there are cases where the evidence is great enough that even an incompetent jury would have no choice but to convict.

Ultimately though I agree with Kozinski completely--if we're going to execute someone, this squeamish crap about trying to make it painless and less "ugly" is hypocritical. Government is killing someone--whether justified or not, don't sugar coat it. Sever the head quickly. Hell, televise it--why should citizens not be able to see what their government is doing?

tim in vermont said...

I am not sure that the writer knows what "horrendous" really means.

Still, he/she has a point. That's why I call what people commonly refer to as "abortion" in-utero infantacide. I support both, but I don't like pretending they are not what they are.

tim in vermont said...

The death penalty does deter. How many deaths must we suffer at the hands of murderers because some of us have emotional problems with killing killers?

Put it to a popular vote, then live with the results.

SomeoneHasToSayIt said...


They could have the firing squad be members of military and police forces who might have to shoot someone, sometime, in the line of duty.

And if so, they would have gotten rid of "first time jitters" in a win-win way.

Lonetown said...

In Redding Ct at a place called Gallows Hill, two people were executed. One was a trader of goods who visited campsites and was found out as a spy and the other a soldier who deserted his camp.

The spy was hanged, the deserter was shot.

The peole who knwo feel it is better to be shot than hanged.

Of course, Major Andre asked to be shot rather than hanged - request denied.

rhhardin said...

The guillotine leaves you conscious for a bit, according to a keep-blinking arrangement some French guy made.

The firing squad puts you out right away, with a blood shockwave to the brain.

I don't know what the problem is obtaining general anesthetic though, and then do anything.

Chuck said...

It's one of the worst-reported stories of the past year (and that is saying an awful lot); that the problem with lethal-injection executions has been with some sort of unsuitability of the drug cocktail.

And that is clearly incorrect.

Yes, it can be hard to obtain the drug compounds; that is because of the political pressures placed on drug manufacturers; hardly an issue of the science of execution.

The real problem in the Clayton Lockett sentence in Oklahoma was that the execution staff was incompetent in performing the simple medical task of opening an IV line.

Lethal injections have become problematic only because three groups of professionals -- lawyers, health care providers and drug manufacturers -- have chosen to make it so.

Read the independent autopsy report. Lockett had good veins, but at autopsy there was evidence of vascular injury and trauma from repeated attempts at vascular access:

https://docs.google.com/file/d/0BxR5nee8pBYQQktuNmtaV0pGS2ZhMF8yZ3g0QU1ZcWl0UWdz/edit?pli=1

Stephanie Nieman, by the way, was Lockett's victim. Lockett took her truck when she interrupted a home invasion. Stephanie, just 19, was bound, duct-taped and abducted with the truck. She was driven to a remote location where a shallow grave was dug. She was shot once by Lockett but lived and was pleading for her life when the gun jammed. Lockett fixed the gun, then shot her again. Accomplices of Lockett say that she was still alive when she was buried.

Bob said...

The garrote, used in Spain for executions for hundreds of years, is quicker and much less messy than a firing squad.

Tank said...

As someone going to Court for 30+ years, I don't trust the system to get it right every time, but, if we're going to execute people, simply slicing off the head seems like an easy foolproof method. If the Defendant has some pain for a few seconds, so what?

Anonymous said...

The dreaded Dutch Oven.

Anonymous said...

Me? I'm kind of torn. On one hand you have the death penalty and on the other your have life imprisonment. In the former you have a definitive end in the other the convicted gets to murder and savage (and be murdered and savaged) fellow lifers until his senescence.

What to do with lifers who kill in prison. Life plus ten years?

Curious George said...

Call me old school but "Light 'em up!"

"the electric chair...are each subject to occasional mishaps"

You want deterrence? Electric chair mishaps dial it up to 11.

Larry J said...

Shooting someone in the heart isn't likely to stop the pain. If a painless execution is what you want, then 100% nitrogen gas is a good way to go. You pass out immediately and die soon afterwards. Cheap and eco friendly, too, with no toxic chemical cleanup required like with the old gas chambers. You wouldn't even need a gas chamber, just a mask.

Even with the guillotine, the brain is still alive for 30 seconds or so. Perhaps the old Soviet and Chinese method of a bullet to the back of the head is the fastest way to go. Destroy the brain in a single, cheap shot. It is a bit messy, though.

SeanF said...

He dismisses the guillotine as an option because it's "inconsistent with our national ethos," but isn't he essentially arguing that executions should be exactly that?

Anonymous said...

'.....The notion that no one can be painlessly, easily put to death with existing medication is absurd. I say this as someone who worked for seven years total in either a surgical intensive care unit or an emergency room."

7/22/14, 12:26 AM
You agree that euthanasia and abortion are not painless?

AReasonableMan said...

Freeman Hunt said...
Have you ever seen anybody die? It's weird. It's ambiguous.


Much like the start of life.

Peter said...

I don't doubt that a single bullet to the brainstem results in a veryrapid crossing of the River Styx.

But there surely are plenty of other quick, sure, low/no-pain methods.

A low-tech method would be to apply pressure to the carotid artery, as is sometimes done (temporarily of course) in Judo. This results in essentially instantaneous unconsciousness and, if prolonged, will produce brain death.

To suppose that it's medically impossible to put someone under anesthesia and then kill them seems improbable.Thousands of patients are reliably rendered unconscious via anesthesia every day, and presumably if you don't intend to revive the patient you can be more sure you've given enough.

cubanbob said...

No one guarantees a servicemen an instant painless death in combat. My give-a-crap meter for doesn't register for capital murderers.

Still for the squeamish the state can change it's medical licensing system to require anesthesiologists to put the convict in an anesthetized state where there is no consciousness and no ability to register or feel pain and then have the executioner administer the killing drug by IV.

Sofa King said...

That being said: use a captive bolt gun. That's the thing the killer in "No Country for Old Men" used, for those of you who don't know what they are. They've been used to painlessly slaughter cattle for a long time.

Too messy. Inert gas asphyxiation is quick, painless, cheap, and effective. And doesn't make a mess. https://www.youtube.com/watch?v=176eog7mZjc

pst314 said...

"I'm opposed to the death penalty myself for several reasons. First, it creates unnecessary and undeserved martyrs."

Unexecuted they are still "victims of society" or "oppressed heroes" or whatever poison the left is smoking this week.

raf said...

I understand the SPCA is pretty good at putting down unwanted curs.

n.n said...

Perhaps Kozinski is not familiar with the privacy doctrine, which dictates that abortions/executions are not a public interest.

If you want foolproof, you need to "plan" the abortion/execution, which is more than 100% effective. Several decades have identified and nurtured techniques which ensure optimal mortality. And nobody can argue that abortions are put to a purpose for which they were not intended: abortions have no purpose other than destroying their targets.

Why don't we enlist the expertise and resources of Planned Parenthood and abortion "clinics"? Is it because people don't want to conflate abortion and capital punishment; for murder of the wholly innocent and others with cause?

jono39 said...

Firing Squad is most American of methods on offer. Guilloutine is like driving a shift. Too weird for most folks. Hanging is the most dignified for the living but it requires real skill to do it right -- either the head gets pulled off or the object of justice is turned into a strangling victim who has a lawsuit.

The real challenge is a vigorous appeals process that probes the judgment and does not last decades which has gutted respect for the law. And too often misses wrongful convictions.

Cedarford said...

f said...
I understand the SPCA is pretty good at putting down unwanted curs.

===============
So is PETA - at the "shelter" places they run.

Revenant said...

"Have you ever seen anybody die? It's weird. It's ambiguous.

Much like the start of life.

Don't be ridiculous. Life starts at the moment of birth, and anyone who says otherwise is a teabagging supporter of the War on Women. :)

ken in sc said...

Utah allows the condemned to choose to go before a firing squad. This is because of a Mormon belief that some sins are so great that only shedding the guilty ones blood can earn forgiveness.

Douglas said...

I think the judge is wrong about firing squad mechanics. Often only one gun is loaded with live rounds, the others are blanks. Theoretically this prevents .members of the firing squad from knowing whether they fired the fatal shot. however, a single shot may miss the heart and not kill the condemned man.

Nichevo said...

+1 shooting

Shooting, as opposed to hanging, is more honorable in the code, as I understand it. A gentleman ought to be shot rather than hanged. Or such was the state of play in 1812.