I USED TO REPRESENT inmates on California’s death row. Their innocence was not an issue. My clients had committed horrific crimes. True to cliche, however, the process of a killer becoming a client — by letters, phone calls, contact with family members, and face-to-face meetings — humanizes them, no matter what they’ve done. And that is why, if we are going to use the death penalty, I support using firing squads instead of lethal injections.
As Judge Alex Kozinski, a pro-death penalty judge on the US Ninth Circuit Court of Appeals, noted in an essay, “We mask the most violent act that society can inflict on one of its members with such an antiseptic veneer. Isn’t death by firing squad, with mutilation and bloodshed, more honest?”
I’d add something else — shooting someone to death is more humane than execution by drugs. Inmates facing the firing squad die within one minute. Executions by lethal injection, when they work, can take up to nine minutes. When they don’t work — which is now the rule, not the exception — inmates have been known to gasp in pain for as many as three hours before cardiac arrest.
In 1982, Texas became the first state to use a three-drug death “cocktail,” combining a sedative, paralytic, and a heart-stopper. All states and the federal government quickly followed suit, on the basis that this was a more civilized way to end a life. But there have long been problems with these death cocktails and now — more than 30 years after their introduction — debate over lethal injections finally is reaching a crescendo.
For starters, the paralytic’s only purpose is to ease the discomfort of the witnesses to an execution — not the inmate — by preventing thrashing and convulsing. When the sedative is not properly administered, it becomes ineffective.
In many states, medical personnel are neither involved in inserting the IV lines nor do they have a say in determining the amount of each drug in the cocktail mixture. It’s not uncommon for a corrections officer with little or no training to be unable to find a vein. And even in states that include doctors in the execution process, the doctor is never an anesthesiologist and is not in the same room as the inmate.
Making matters worse, the most effective sedatives — used in surgeries on humans and by veterinarians — are no longer available. European pharmaceutical companies no longer permit their drugs to be used in executions. US manufacturers have successfully sued for their drugs’ discontinuation on the basis that the Food and Drug Administration never approved their use in executions.
As a result, executions are left with short-acting sedatives such as midazolam. Although a relaxant, midazolam does not induce the deep coma that is needed to prevent the sensation of pain. States are using midazolam simply because it’s one of the few sedatives they can lawfully obtain for executions.
On the last day of the Supreme Court’s term for oral arguments, it heard opinions on whether Oklahoma’s use of midazolam constitutes cruel and unusual punishment. Justices Samuel Alito and Antonin Scalia voiced frustration over the fact that death penalty foes have forced states to use substandard drugs and procedures instead of the drugs and tools that deliver a quick, painless death.
But beyond the technical issues plaguing lethal injection, there’s an underlying problem with the protocol, which is to spare us from having to face the reality of what it means for society to sanction a killing. It’s less disturbing to visualize someone drifting off into a fatal sleep than to imagine a bullet-riddled corpse. Put another way, if we can’t stomach the rifle, we should be equally squeamish with the needle.
The gore and spectacle of a firing squad would cause most of us to pause, even when deciding the fate of “the worst of the worst.” If jurors had to choose between giving someone life in prison — without the possibility of parole — or putting them in front of a firing squad, I have no doubt that many would opt for the former.
Kari Hong is an assistant professor of law at Boston College and a former criminal defense attorney.