Interesting article in the NY Daily News and I see that the author has written various articles about somewhat similar topics.
Lethal Injection and the False Promise of Humane Execution by Austin Sarat (and some students) is a small book about how lethal injection is botched. I talked about it a few months back and it was a side panel book. The book spoke about the problems.
It was not a solution sort of book, other than that the death penalty was bad. The article cited Sarat's study of botched executions, noting he did not find one among the firing squad cases (a tiny 34 of the whole). The article is careful to note that Sarat still prefers to end the death penalty totally.
[His research was cited by Justice Sotomayor in her 2015 dissent in Glossip v. Gross. See more below.]
Botched executions are but one part of the problems with the death penalty though like innocence claims are seen as particularly striking. There is an emotional level here but also the fact that the cruelty and unusual nature of the action carrying out executions is seen as the core of the constitutional barrier.
In recent years, the problems of lethal injections have been more and more highlighted. One problem was the shortage of drugs arising from opposition to their use, which is a sort of self-feeding problem. Fewer drugs meant the usage of more dubious alternatives. The opposition also leads to secrecy, which is problematic as well. Ditto changing protocols, sometimes late in the game. Again, problematic.
Lethal injections in the 1970s were put out as a solution to dubious methods like electrocution. The article notes that the firing squad is an old but little-used method (mainly in the military and Western areas, especially those with Mormon populations that found it religiously appropriate).
After the return of the death penalty in the mid-1970s, three people were executed by firing squad, including the famous (had a movie and everything) Gary Gilmore. Religion and fear of the effects of lethal injection influenced the other two.
And, Sotomayor repeated her citation of it as a possible alternative in 2017. Not that she said this as if it was a great choice. Consider her first dissent (cited above):
A return to the firing squad—and the blood and physical violence that comes with it—is a step in the opposite direction. And some might argue that the visible brutality of such a death could conceivably give rise to its own Eighth Amendment concerns.
Alex Kozinski, the judge who was pressured to resign for his dubious activities of a #MeToo variety, once noted he supported it to show us the truth about homicide by the state. Sotomayor suggests she is warier about such things.
The firing squad erases concerns about shortages (one thing we do not lack is bullets). There is a concern that it is "brutal." It also provides a more direct role in executions, at least in a symbolic way. I guess we can imagine some machine that is rigged to shoot the person. A tradition of the use of blanks so that it is not known who exactly killed the person was in place. We have creativity.
The article cites concern about the violence of the executions traumatizing witnesses (including families of the victims) or those who have to clean up the mess. I question if the latter is much of a problem if the whole thing is done right.
The article also suggests a very short window of time (ten seconds) where the person can feel a lot of pain. But, there are risks in the case of a lethal injection of much more. We also might not know all the risks since there is such a small sample size. OTOH, we have had a lot of studies of shootings.
On some level, the firing squad seems logically appropriate. I think the reason it was basically discontinued is that it seems barbaric. This is in actuality more symbolic than real. Lethal injection has various problems, even if they did not keep on being botched. The fiction is like putting a dog or cat to sleep is part of the problem.
We continue to have a small number of executions. Currently, the average seems to be around twenty a year. Lethal injections continue though in recent years problems still arose or there is a chance they arose (the secrecy hurts full disclosure). But, I think alternatives will be tried.
The rule set forth by the Supreme Court in recent years is that when a means of execution is challenged, there must be an alternative offered. So, Sotomayor's second dissent cited the request of the murderer, and how the firing squad might be "comparatively" better. Maybe so.
In recent years, the alternative seemed to be nitrogen gas. Some defendants tried to ask for that. They failed though recently one person did work out an agreement after the state didn't manage to execute him with a lethal injection that it would be nitrogen gas or nothing. Why not? Way to try it.
It's difficult to start anew. There is a lot of inertia in criminal punishment and that includes legal challenges that can feed off novelty. This might be a factor. Still, it seems strange to me that nitrogen gas has yet to be used. Not that I think it is a nirvana and I have seen a few experts agree with my pessimism.
Criminal justice is filled with imperfect alternatives. Plea bargaining is a prime example. Any system that puts people in dangerous cages is imperfect. So, until we reach the point where the death penalty truly is no more, examining alternatives is a depressing but appropriate alternative.
This pops up when addressing protecting the religious wishes of people to have ministers with them when they die. But, there was a creative brief by a group supporting separation of church and state. If we are going to be concerned about the religious liberty of the people here, isn't executions problematic? There surely are reasonable alternatives.
Ah, the rub. The death penalty system is often lacking reason.
==
A little addition. George Santos has largely seemed to be no longer a story, apparently, though he pops up from time to time. Like this story of his (as compared to his former public assurances) admitted fault in an old crime in Brazil.
The Republicans do not have a margin of one in the House. Surely, every vote counts and Santos might have a few friends among his MAGA colleagues. But, it seems it is a dubious cost/benefit equation to keep this guy around.
Still, there is the usual "admit no mistakes" approach, and again the assumption people are bored and have mostly moved on. "We can stick with him for the rest of his term." He did put in paperwork to run again, but you know.
Still, no circular firing squad of sorts yet, even if New York Republicans mostly hate the guy. For Democrats, he is the gift that keeps on giving.
No comments:
Post a Comment
Thanks for your .02!