Utah's Firing Squad Law Reveals Crisis at the Heart of US Capital Punishment

By Ed Pilkington, Guardian UK

28 March 15

Historically, each new execution method is presented as more humane, but with judicial killings having almost ground to a halt, the state is returning to the past

he last time anybody was executed by firing squad in the US, in June 2010, the five assigned sharpshooters equipped with Winchester .30-30 rifles decided for a reason that remains known only to them to pull the trigger on the count of two. Not one, but two.

“Five,” a warden shouted.

“Four.”

“Three.”

Wham.

At that second, four live bullets (one was a dud) were propelled from the distance of about 25 feet at Ronnie Lee Gardner, a convicted murderer, entering his heart. We know that’s where he was struck because shortly before the countdown began, a medical doctor entered the death chamber, located Gardner’s heart using a stethoscope, and placed a red target right over the spot. At the end of the proceedings, the target was inspected and found to be riddled with holes.

Gardner chose to die by this arcane method, explaining his decision with the memorable phrase: “I lived by the gun, I murdered with a gun, I will die by the gun.” His death was reminiscent of the most famous execution in modern American history – that of Gary Gilmore, whose death in Utah in 1977 was turned into literature by Norman Mailer in The Executioner’s Song.

“Gary never raised a finger,” Mailer wrote. “Didn’t quiver at all. His left hand never moved, and then, after he was shot, his head went forward, but the strap held his head up, and then the right hand slowly rose in the air and slowly went down as if to say, ‘That did it, gentlemen.’”

Gilmore also died by firing squad, a method that Utah abolished for all new death row inmates in 2004 (Gardner was condemned before that cut-off date so could still opt for it). But on Monday, the state revived the controversial technique, enacting a new law that resurrects it as an alternative should the preferred method of lethal injections be unattainable.

Utah’s decision to take a step back in time and return to a mechanism last regularly used in the early 20th century is the sharpest indication yet of the crisis that has engulfed the death penalty in the US. Across the country, states are turning away from the ultimate punishment altogether, or being forced to consider a return to older, largely discredited methods.

Eighteen states have formally abolished capital punishment, and a further eight have staged no executions in more than a decade. The number of active death penalty states has receded to little more than a handful, and they are in dire trouble.

You only have to look at the roster of upcoming executions that is curated by the Death Penalty Information Center (DPIC). In the month of March, it records 14 executions scheduled in seven different states – Albama, Georgia, Ohio, Oklahoma, Pennsylvania, Tennessee and Texas.

Every single one of those scheduled executions have been marked “Stayed” – that is, put on hold. In short, the American death penalty has virtually ground to a halt.

“What we have seen in Utah this week with the revival of the firing squad is in a very real sense a measure of the failure of the lethal injection protocol in the US,” said DPIC’s executive director, Robert Dunham.

The main cause of this unintended and unofficial moratorium has been the struggle of states in acquiring medical drugs used in lethal injections. In the wake of a worldwide boycott of US departments of correction, led by the European Union, active death penalty states have been turning to increasingly creative ways of filling their syringes, from commissioning products from thinly regulated “compounding pharmacies” to experimenting with previously untested cocktails of drugs.

That, combined with a rash of new secrecy laws designed to prevent the public finding out what killing techniques are being deployed in their name, has led to a predictable outcome: a succession of shockingly botched executions. When concern over the use of one previously untested drug, midazolam, reached fever pitch, the US supreme court stepped into the furore and announced that it would review the state of the lethal injection protocol to see whether it violates the constitutional ban on cruel and unusual punishment.

With the supreme court set to hear oral arguments in its review on 29 April, there is a sense of barely contained chaos hanging over the death penalty states. As Deborah Denno, a specialist in execution methods at Fordham University in New York, put it: “American executioners just don’t know what they are doing, and it’s transparent now to the entire world. Our flaws have been exposed for everyone to see.”

Viewed through the longer lens of history, the current turmoil is merely the latest manifestation of an age-old conundrum: how to separate America’s fondness for judicial killing from the cold-blooded murder committed by the very same people it puts to death. In his book Gruesome Spectacles, the Amherst professor Austin Sarat describes the historic search over the past 100 years for a technique that was safe, painless, in some sense civilised – and the eventual failure of each new approach.

“With the use of each new technology – whether hanging, the firing squad, the gas chamber, the electric chair, or now lethal injection – the same claims have been made. The new method would be humane; it would avoid the constitutional ban on cruel or unusual punishment,” Sarat told the Guardian.

Yet with each new iteration, the country was eventually forced to think again in the wake of horrifying botched executions. In Gruesome Spectacles, Sarat relates the 1899 execution of murderer Art Kinsauls in North Carolina, who had to be hanged twice in front of a crowd of hundreds of people after the first drop failed to kill him. The reaction to that display was remarkably similar, the author finds, to the public outcry after Pedro Medina was put on the electric chair by Florida in March 1997, when witnesses reported seeing flames leaping from the top of his head.

Sarat places the current unease over lethal injection in the same narrative of botches. His research, paradoxically, discovered that lethal injection – despite its claims to medical propriety – has actually experienced the highest rate of mishaps. Between the first lethal injection in 1982 and 2010, a year before the worldwide boycott began, 7% of all lethal injection executions were botched compared to an average of 3% for all capital punishment methods.

What’s different and potentially hugely significant about Utah’s revival of the firing squad this week is that unlike previous steps – in which states have jumped on new techniques – this move is a retreat into the past. Other states, too, have put their gears into reverse: Tennessee has moved to bring back the electric chair, Missouri has publicly contemplated rebuilding its gas chamber, while Oklahoma is considering introducing a new type of death by nitrogen hypoxia.

Such retrogressive measures – a sort of capital punishment nostalgia – pose big ethical questions. Foremost of which is, why are states reviving techniques which they previously denounced as inhumane?

“This is a seminal moment in American capital punishment,” Sarat said. “After a century promising that a new technology could be found that would be truly humane, we are now taking a step backwards. The perception is growing that whatever the method, the machinery is broken.”