Is Death By Firing Squad 'Cruel And Unusual'? Try Asking Someone Who's Been Given The Choice

After looking at the death penalty through the eyes of those facing it, alternatives to lethal injection, even the firing squad, might not look quite so objectionable.

Earlier this week, Utah Governor Gary Herbert signed a bill allowing the state to use firing squads to implement the death penalty, if the state cannot procure the drugs needed for lethal injection at the time of the execution. The move disgusted critics. Randy Gardner, the brother of the last man to be executed by firing squad in Utah, told the AP, “When you take somebody and you tie them to a chair, put a hood over their head, and you shoot them from 25 feet with four rifles pointed at their heart, that’s pretty barbaric.”

I say “potato.” You say “pretty barbaric.”

If someone thinks that all capital punishment is barbaric, then barbaric the firing squad is. But compared to some of the recent death-chamber mishaps when states have executed inmates by lethal injection? Randy Gardner’s description of the firing squad sounds rather benign next to the deaths of Clayton Lockett or Michael Lee Wilson. In January 2014, Wilson reportedly said that he could feel his “whole body burning” after being injected with a pentobarbital cocktail. In April 2014, witnesses reported seeing Lockett revive after his initial loss of consciousness, later groaning, straining against the restraints, and gritting his teeth.

Recent problems with death by lethal injection are largely attributable to shortages of sodium thiopental and other drugs used in the standard lethal injection protocol. While the European Union’s embargo on the drugs was intended to stymie American capital punishment, the ban has led states to experiment with new, less reliable chemical combinations.

The history of the death penalty in the United States is riddled with plenty of gruesome stories, botched lethal injections aside. There are the inmates who reportedly caught fire during electrocutions. There are the ones whose deaths by asphyxiation lingered longer than expected. There is Jimmy Lee Gray, who reportedly died banging his head against a steel pole in the gas chamber.

Is firing squad worse?

Comparing methods of human execution is not like comparing cell phone providers. The execution comparison does not lend itself to side-by-side line-item analysis. You can’t ask people who have experienced the alternatives to tell you about what worked and what didn’t. And you certainly don’t want to try things out on your own.

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How then do we decide how to carry out death sentences? How do we determine which ways are pretty barbaric and which are acceptably barbaric and reliably lethal?

Eighth Amendment analysis requires a whole lot more than a gut-level response to these questions. But the public debates about whether the death penalty is worth it and what means of execution are acceptable often do start with this step. Based on the vocal dissent in Utah this week, people can’t agree enough to move past this step yet.

How do we know whether Utah’s firing squad is crueler or kinder than Utah’s lethal injection? Maybe we should ask the people for whom the decision matters most, namely, the condemned inmates themselves. Or, more properly, we ought to take into account the history of choices made by past prisoners who chose the method of their own deaths. In states where condemned inmates choose the method the state will use to execute them, plenty of people have opted for means other than lethal injection.

For example, Randy Gardner’s brother, Ronnie Lee, was the last man to be executed by firing squad in Utah. Before his death in 2010, Ronnie Lee picked the method his brother calls “pretty barbaric” over dying by lethal injection.

In 1996, Delaware hanged Billy Bailey, the state’s last inmate executed at the gallows. Bailey chose hanging over lethal injection. Bailey said, “I’m not a dog. I’m not going to let them put me to sleep.”

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Bailey sneered at lethal injection back when the procedure was considered reliable and humane, even fashionably so. At the time, Delaware had recently introduced the injection option and many observers were pretty surprised that Billy Bailey didn’t jump on the opportunity. Imagine what he would have to say about lethal injection now, in an era of clumsy experimentation with new drug cocktails by states that can no longer obtain the tried-and-(mostly-)true ones.

Why should we care what a few inmates think is the better or worse way to die?

Perhaps we shouldn’t listen to them because the condemned aren’t medical experts, not anesthesiologists or coroners. The inmates who have chosen methods of execution other than lethal injection don’t really know how painful their deaths will be. They may be heavily invested in making the least-painful choice, but they don’t actually know how one or the other way of dying feels.

Well, neither do you.

That’s the mystery of death. The lack of first-hand, subjective knowledge is going to stay a problem.

For however much it matters, the recipients of the death penalty have themselves intentionally ended the lives of other human beings, something that no physician should be able to claim. Committing murder surely does not make these prisoners experts in death, but neither does being a doctor.

Perhaps we shouldn’t care what inmates think of execution methods simply because doing so suggests a softening of our attitudes toward death row criminals. The inmates’ victims did not chose the manner of their deaths; why should murderers be afforded that dignity, one might ask?

Whether killers deserve this choice or not, there is a substantial history of giving those sentenced to death an option about the method to be used in their own individual cases. There is also a history of states drawing conclusions based on patterns of inmate preferences and adjusting general policy accordingly.

For examples, we need look no further than Utah, the locus of the recent death penalty skirmish. Until 1888, people sentenced to death in Utah could pick among three options: hanging, firing squad, or beheading. No condemned prisoner ever picked beheading. So, in 1888, Utah nixed this option. There are economy-of-scale problems with all that guillotine upkeep, I suppose.

Utah continued to offer inmates the choice between firing squad and hanging until 1980, when the state swapped hanging for lethal injection. Only in 2004 did the Utah legislature take this choice away from the condemned. Only those denizens of Death Row who had chosen firing squad before the new legislation passed, such as Ronnie Lee Gardner, would be permitted the option of dying by firing squad. Moving forward, all death sentences would be carried out via lethal injection. That is, until this week.

Inmates’ ideas about the relative barbarism of execution methods should not, by themselves, determine a state’s capital punishment policy. But states shouldn’t completely disregard that information either.

After looking at the death penalty through the eyes of those facing it, alternatives to lethal injection, even the firing squad, might not look quite so objectionable.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.