Government

Trump Bringing Back Firing Squads... Maybe Not A Terrible Idea?

News of the rule shocked Americans, but this speaks to a deeper problem.

By  
on

Many years later, as he faced the firing squad, Colonel Aureliano Buendía was to remember that distant afternoon when his father took him to discover ice. — Gabriel García Márquez

Firing squads feel like a relic, reserved for nations with histories pockmarked by military juntas. But death by firing squad is still kicking around within the United States where Oklahoma still deploys the punishment, while Utah still has a few more prisoners to execute before its ban on the punishment ends the practice there. And now the Trump Justice Department is racing in its final weeks to approve a new rule that would give federal authorities access to firing squads as a means of execution.

Most media outlets reported this over the holiday with deliberately shock-inducing headlines. That the administration is pursuing this rule on a fast-track and curtailing the usual comment period only added to the alarm. Is Trump making a final push to align his regime with the tinpot dictators of the past who would line the original “#resistance” up against a brick wall with a blindfold and a cigarette? After failing to make the trains run on time, the reasoning goes, this could be Trump offering to do the very least he can to enshrine his admiration for anti-democratic forces in the Federal Register.

But… maybe this isn’t actually a terrible idea?

Firing squads are symbolic of brutality in an American imagination that sees lethal injections as the “nice” way for the state to kill people. But folks are increasingly waking up to the reality that the cheap drugs that governments use in lethal injections result in horrifically cruel ordeals for the prisoner and have resulted in botched executions where the condemned struggles in wordless agony for an eternity as executioners scramble to figure out how they screwed up.

In an opinion dissenting from the denial of cert, Justice Sotomayor expressed willingness to hear from a prisoner who wished to avoid lethal injection in favor of firing squad. At the time, she noted that, based on the evidence, firing squads sounded like a superior method of execution:

As an alternative to death by midazolam, Thomas Arthur has proposed death by firing squad. Some might find this choice regressive, but the available evidence suggests “that a competently performed shooting may cause nearly instant death.” Denno, Is Electrocution An Unconstitutional Method of Execution? The Engineering of Death Over the Century, 35 Wm. & Mary L. Rev. 551, 688 (1994). In addition to being near instant, death by shooting may also be comparatively painless. See Banner, supra, at 203. And historically, the firing squad has yielded significantly fewer botched executions. See A. Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty, App. A, p. 177 (2014) (calculating that while 7.12% of the 1,054 executions by lethal injection between 1900 and 2010 were “botched,” none of the 34 executions by firing squad had been).

Sponsored

Not that the Bill Barr Justice Department is acting with the pure intention of realizing Justice Sotomayor’s vision of the Eighth Amendment here. Lethal injection drugs are growing scarce as manufacturers, to borrow from Justice Blackmon, wish to “no longer shall tinker with the machinery of death.” The proposed rule seeks to bring back the electric chair too. The new rule is less an effort to bring a modicum of humanity to the death penalty than an effort to award the federal government with a grab bag of cost-effective mechanisms for state-sponsored killing. “Drugs gotten too expense? Have you considered the Iron Maiden?”

But even though the intentions behind this rule are garbage and the fact that the Biden administration’s seeming commitment to avoid pursuing death sentences altogether may render this rule moot — at least for four years — America needs to have a serious talk about why it viscerally recoils from the method of execution that’s more reliable and instantaneous in favor of ones that, well, aren’t.

Perhaps it’s just that the optics appear too fascist for American sensibilities. That could be an encouraging statement about the state of the country’s democratic institutions and it’s nice to look at glasses as half-full. But in the grand scheme of things, if the hangup is that the imagery of the state aiming rifles is materially worse than the state standing behind a one-way mirror, it’s possible that those institutions may already be wearing a bit thin.

Trump Races to Weaken Environmental and Worker Protections, and Implement Other Last-Minute Policies, Before Jan. 20 [Pro Publica]

Sponsored

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

, ,