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February 16, 2009

Execution methods and theories of punishment

This week we will turn this week from broad discussion of capital punishment theories and practices to a focused discussion of constitutional doctrine.  (And here is a reminder that everyone should be prepared to discuss the McGautha case.)  But this great newspaper article, headlined "Firing squads are more humane, experts say," provides a great overview of how different death penalty theories and practices intersect when we consider execution methods.  Here are some notable snippets from the article:

Rep. Delmar Burridge knows his death penalty bill isn’t going anywhere this legislative session. His bill to bring back the firing squad as punishment for gun-related murders didn’t have a single sympathizer during a recent House committee hearing, and Burridge said he brought the proposal forward to make a point, not new law.

But some execution experts say that the Keene Democrat’s proposal should get a fair hearing. Firing squads, they say, may look old-fashioned and barbaric, but they may be more humane than other methods.

A 1993 study that examined the pain associated with different execution methods had firing squad ranked close to lethal injection. But that research came before more recent reports about problems with lethal injections — incompetent executioners, medically complicated inmates and otherwise botched executions — that have led five states to put executions on hold as they consider ways to improve the status quo.

“That’s definitely something worth investigating,” said Deborah Denno, a professor at Fordham Law School in New York who has studied execution methods for 18 years and testified in state and federal courts about lethal injection. “There’s evidence that (a firing squad) could be the most humane method that’s currently available.”...

Burridge said he chose the method primarily for its public-relations value. He said he thought a death by shooting might be more likely to stick in the minds of would-be criminals and deter them from committing crimes using guns. “I call it the enhanced death penalty,” he said. “You’ve got to love the marketing.”...

Worldwide, firing squad is the most common method of execution. But it’s generally associated with “repressive governments,” including Libya, Cuba, Afghanistan and Uzbekistan, said David Fathi, the U.S. program director at Human Rights Watch. His organization, which opposes the death penalty, authored an influential report in 2006 outlining failings in the states’ lethal injection protocols. But despite those problems, Fathi did not agree that New Hampshire should choose the firing squad. “These are not countries that we generally strive to emulate,” he said....

One strong argument in favor of lethal injection and against the firing squad is the appearance of the execution. Lethal injection looks dignified and painless to watchers, said Richard Dieter of the Death Penalty Information Center. “The guards, the wardens, the witnesses probably do not want five rifles going off and a bloody person bleeding to death in front of them,” Dieter said. “I think these methods are partially chosen for their appearance.”...

On this very blog, back when it was used as a resource for the death penalty course taught at Moritz in Spring 2007, students can find lots and lots of posts on execution methods:

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In light of what Professor Rogers said, having a firing squad may effect those who participate in the death more than lethal injection. It is already hard enough to know you are taking part in putting someone to death, but (as the last paragraph says) having to watch them bleed and die in a more horrific manner will probably have a greater effect on those who participate in the death

Posted by: Jeanna | Feb 16, 2009 11:59:08 AM

This article highlights something I had hoped we would talk about in our death penalty discussion in class. According to the article, the firing squads are used in Libya, Cuba and Afghanistan (actually Uzbekistan just abolished the death penalty in 2008), and generally, the death penalty is also used countries like China, Iran, North Korea, and Pakistan. Nearly all of our allies have abolished the death penalty, most for decades. In fact, if you look at the list of countries with and without the death penalty, its clear which list the U.S. should be on (at least in my opinion). You can check out the list here: http://www.infoplease.com/ipa/A0777460.html

Posted by: Shawn | Feb 16, 2009 12:58:17 PM

According to the death penalty info center (http://www.deathpenaltyinfo.org/methods-execution) Utah allows (or used to I'm not sure how up to date this is) offenders to choose the firing squad option. I was curious to know what people thought about allowing the offender to choose. Does this make the process more humane? Does it give the offender too much control? Would such a process influence deterence? What would victims think? I think I would lean against giving such control to offenders, but I could probably be convinced otherwise.

Posted by: Zach | Feb 18, 2009 1:21:19 PM

Prof. Berman: Thank you for linking to this stimulating blog.

1) I predicted the SC would support lethal injections, long before they did. I knew it after talking to a couple of full time death penalty appellate lawyers at a party in California. If the Court had ruled against the injection, it would have ended the employment of at least two lawyers.

2) One argued that incompetent lethal injection violated the Eighth Amendment. This is ironic after the left managed to intimidate doctors from participating, even by training executioners in starting IV's. Then, in a Twilight Zone moment, she opened her arm to show me a large, swollen, black and blue area, where blood drawing technicians had rummaged around seeking to find a vein. I asked if they had violated her Eighth Amendment rights. She said no, she had given her consent. I suggested the condemned had far more protection in the form of a trial, endless reviews and appeals.

3) Because I liked her so much, I gave her an appellate argument never used before. The cruelty of method of death argument does not stand up. About 90% of us will endure a prolonged, painful, and humiliating death. Only 10% of us will have an easy quiet death. Why should a criminal have any guarantee of an easier death than the average person. Even if you tortured the person for hours, as in the movie, Braveheart, it would still be shorter and easier than that of the cancer patient, tormented by side effects of chemotherapy for months.

4) What is the sole unconstitutional cruelty of the death penalty? The date. Even the pain wracked cancer patient is spared that cruel knowledge. She said, no one had argued that. In Japan, the condemned does not know the date, as none of us knows it.

5) Lastly, I mentioned the dose-response curve applies to all human remedies, and needs to be worked. Assuming no deterrence, 10,000 executions a year would eliminate the half of the violent male birth cohort, who are not murder victims, and would settle down the criminals of the US, by attrition.

The concept of the dose response curve in remedies is discussed here:


It contains no math, but links to more advanced discussions of the math involved.

Posted by: Supremacy Claus | Feb 19, 2009 4:57:37 PM

After reading the above comments, I suggest an exercise in class that I have done dozens of times. The professor should ask all the students to say the V word. Victim. No lawyer can get that word out. It sticks in the craw of every lawyer I have ever met. I predict the professor will be able to say out loud, V Word. He will never ever be able to utter out loud, Victim.

By the coddling of the criminal, the lawyer has condemned 17,000 murder victims, and 5 million victims of violence every year. That rate decreased after sentencing guidelines, and from advances in trauma care. Now Scalia has led a series of cases to eliminate the guidelines, and to restore lawyer jobs lost by the drop in crime. The murder rate has jumped in several cities in the Scalia bounce. Scalia does visit law schools. A student should ask him to whisper the V Word. Scalia will find it impossible to even mouth it. The lawyer will try to defund advanced trauma care, next.

Why would the lawyer enable, protect and immunize the violent criminal? The violent criminal generates fees and jobs. The Victim generates nothing and may become unspeakable.

Posted by: Supremacy Claus | Feb 19, 2009 9:25:38 PM

Two things jump to mind reading this post. One, if deterrence is a factor why are we so concerned with making the death appear as pain free as possible undermines our justification for the penalty. In truth we should be showing the pain of death and be coming to the line of what is cruel and unusual. Second, death by firing squad while bloody is a death that has been romanticized in movies and popular culture for decades. I believe that we all can imagine that many criminals would be proud to “die like a man” or “to die as they do on the street”.

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