Will Firing Squads Be The New Method of Execution in Death Penalty States?

 As executioners are finding it more and more difficult to find drugs to use in lethal injections (see our prior post on this), discussion has begun on an alternative to injection as a way of killing for capital punishment.

Recently, an opinion piece on CNN.com written by Robert Blecker, a law professor at New York Law School, has gained lots of attention.

Grits For Breakfast, a noted criminal justice blog based in Austin, Texas, supports his suggestion that firing squads be the alternative chosen by states for future executions.

Sentencing Law and Policy, another well-respected blog published by Ohio Law Professor Douglas Berman, also points to Blecker's article favorably.  (Comments here are very interesting.)

Firing squads instead of lethal injection?  Guess it would be a lot easier to find enough bullets.  

And, history shows firing squads are fast, cheap, and effective as shown in the photograph below from the National Archives, where  "...German General Anton Dostler's body slumps toward the ground after being executed by a firing squad at Aversa, Italy. The general was convicted and sentenced to death by an American Military Tribunal."

 

German General Anton Dostler's body slumps toward the ground after being executed by a firing squad at Aversa, Italy. The general was convicted and sentenced to death by an American Military Tribunal.

 

 

 

Infographic: 4 States Responsible for 75% Executions in 2012 (Courtesy DPIC)

 

Pentobarbital Shortage in Death Penalty Executions: The Continuing Problem of Finding Drugs for Lethal Injections

Two years has passed since we posted about the shortage of sodium thiopental in Florida and Texas and elsewhere, and how this necessary component of the three-drug "cocktail" used in death penalty executions was causing all sorts of problems with criminal justice officials in different parts of the country.

See:  Pentobarbital in Florida Executions: What's Next and Tennessee is Considering Using Pentobarbital in Its Executions, the Drug Used to Put Down Pets for more details.

Now, pentobarbital is back in the news as media reports in the New York Times, the National Journal, and lots of other national medical sources are reporting that this drug isn't going to be available to executioners here in the United States.  

It's a big problem that still hasn't found a solution for those seeking to enforce capital punishment: having a ready supply of lethal drugs to execute people with lethal drug injections. 

Propofol To Be Used by Missouri

On Monday, the New York Times reported that some states are considering their options, suggesting that states may follow Missouri's lead and substitute propofol for the missing pentobarbital in their lethal drug cocktails.  

Yes, propofol is the drug administered to Michael Jackson, causing his death.

Will States Revert to Gas Chambers, Electric Chairs, Firing Squads, or Hangings?

There are some who are suggesting that lethal injections be halted as an execution method, reverting to other forms of execution which are still legal under many state laws, just not used since injections have been the preferred method for many years.

In Florida, the movement to return to the electric chair of the firing squad has been moving around the Florida Legislature for a couple of years now.  

For a list of alternative execution methods by state, see our post on the five current options for execution:

  • lethal injection
  • electric chair
  • hanging
  • firing squad
  • gas chamber.

And before people consider these archaic methods of execution as alternatives to the lethal injection, perhaps they would be well served to read the dissenting opinion of Florida Supreme Court Justice Leander J. Shaw, Jr. in the 1999 challenge to the use of Old Sparky on constitutional grounds. 

Justice Shaw attached 3 color photographs of the bloody body of Allen Lee Davis taken by a prison official shortly after he was executed by electric chair, as support for his dissenting opinion where he found the method to be unconstitutional insofar as it was cruel and unusual.   Justice Shaw's attachments caused a worldwide clamor against this form of execution and are still used today by those fighting against capital punishment.  

Warning: don't hit that link and go to the dissenting opinion if you find graphic images like this disturbing.  

Florida Timely Justice Act Challenge: Reply Brief Filed

 The Reply brief, responding to the briefing of the Attorney General for the State of Florida in her Response, was filed on July 29, 2013.  Click on the image below to read the brief (or download the pdf):

From the Reply Brief (pp. 43-44) , this Conclusion:

There is an inexplicable disconnect between what the Timely Justice Act is intended to do, the terms of the Act, and what the State contends the Act will actually do. The Legislature’s purpose has been clearly expressed over and over: the judicial system is failing to properly administer capital postconviction litigation so the Legislature must step in to fix the system. Equally clear and repeatedly expressed is the State’s view of what the Act will actually do: nothing. And that disconnect is not important merely because it demonstrates the irrationality and disingenuousness surrounding the unthinking manner in which the Act was passed and justified, it also demonstrates that the State’s arguments are unrelated to the Act’s constitutionality.

Nowhere does the law say that Separation of Powers violations are allowable as long as there is no great harm done, such that the State’s primary defense of the Act—that it will do nothing—is utterly irrelevant to the primary claims of the Petition. Article II § 3 of the Florida Constitution states that “[n]o person belonging to one branch [of government] shall exercise any powers appertaining to either of the other branches . . . .” The State is unable to point to any authority which interprets that provision tn to apply only where a harm is demonstrated. Thus, even though Petitioners describe numerous, practical and realistic harms that will result from the Act, the State’s primary defense of the Act is no defense at all. 

The Act is about rulemaking, expressed as rulemaking, described by its  drafters as rulemaking, but rhetorically defended by the State as being about substantive policy. Petitioners urge that this Court should not permit its capital postconviction system to be, to any extent, supplanted by such measures.

 

Today is August 12: nothing else has happened on the docket since July 30th - two weeks of silence. 

We'll keep you posted.  

Schizophrenia Doesn't Stop Execution of Mentally Ill Florida Death Row Inmate John Errol Ferguson This Week

 On Monday, the State of Florida executed John Errol Ferguson, a 35 year resident of Florida’s Death Row. It was a very controversial case and many believed that Mr. Ferguson should have been spared capital punishment because he suffered from severe mental illness. Ferguson was diagnosed as being schizophrenic - his schizophrenia isn’t disputed.

Indeed, Ferguson proclaimed himself to be the “Prince of God” and his mental illness was readily apparent long before the murders were committed upon which his death sentence was based. (His last words, according to the Miami Herald, were “I just want everyone to know that I am a Prince of God and I will rise again.”)

Still, the Eleventh Circuit upheld the death penalty for John Errol Ferguson and outcries from the public (like this Palm Beach Post editorial) and briefing from the American Bar Association (see the July 26, 2013 brief, where inconsistencies under state application of the Panetti v. Quarterman standard were argued for a stay) were unsuccessful.


Read the ABA Amicus Brief here by clicking on this image:

 


For more on schizophrenia, check out The National Institute of Mental Health’s explanation (”a chronic, severe, and disabling brain disorder....") or the information provided by the Mayo Clinic (”a group of severe brain disorders in which people interpret reality abnormally. Schizophrenia may result in some combination of hallucinations, delusions, and disordered thinking and behavior….”).

 

 
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