Judge Kozinski: Bring Back the Firing Squad

Wall Street Journal – by Jacob Gershman, July 21, 2014

One of the nation’s most prominent judges is urging states that have the death penalty to abandon lethal injection and switch to the “more primitive” but “foolproof” firing squad as their primary method of executing death-row inmates.

Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals, wrote ablistering critique of lethal injection in a dissenting opinion in the death-penalty case of Joseph Wood, an Arizona convicted murderer whose July 23 execution was delayed by a Ninth Circuit panel on Saturday.  

The court on Monday refused to rehear the case before the entire bench, letting stand a panel’s decision to hold up Mr. Wood’s execution until more was disclosed about the drugs and the executioners to be used in his lethal injection. Mr. Wood, 51, was set to die July 23 for the 1989 murders of his estranged girlfriend and her father.

Here’s Judge Kozinski:

Whatever happens to Wood, the attacks will not stop and for a simple reason: The enterprise is flawed. 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—like something any one of us might experience in our final moments. 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 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 . . .

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.

Judge Kozinski’s opinion is certain to fuel more debate over the future of lethal injection in the U.S. Law Blog reported earlier this year about attempts by lawmakers in at least two states to authorize the use of firing squads for capital punishment.

No state employs firing squads as a primary execution method, but Utah and Oklahoma permit death-row inmates to be shot under certain, narrow circumstances, according to the Death Penalty Information Center.

The Arizona case comes in the wake of recent highly publicized flawed executions around the country, including a botched lethal injection in Oklahoma in April. The episodes have raised questions about the capacity of states to properly administer lethal injections as they struggle to obtain the drugs to carry them out.

The case of Mr. Wood was the latest court clash over lethal injection secrecy.Judge Kozinski is also the latest judge to attack dysfunction in the broader death-penalty system. A federal judge in California last week struck down the state’s death penalty, saying the system there is “plagued by inordinate and unpredictable delay.”

Arizona has disclosed the type of drugs it intends to use — a combination of Midazolam and Hydromorphone — and the planned dosages. It also said the drugs are domestically obtained, Food and Drug Administration-approved, and more than a year away from expiring.

But the state has declined to reveal information about the manufacturers and suppliers of the drugs, as well as details about the qualifications of the state prison employees assigned to put Mr. Wood to death.

The state argued that releasing such information would deter manufacturers from providing the drugs and expose the identities of the executioners, whose qualifications were reviewed by a state inspector general.

In a departure from other courts confronting similar confidentiality questions, the Ninth Circuit panel ruled that Mr. Wood’s First Amendment claim to that information “raised serious questions” that warranted more review.

http://blogs.wsj.com/law/2014/07/21/judge-kozinski-bring-back-the-firing-squad/