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Has the United States Run Out of Ways to Make the Death Penalty More Humane?

As lethal injection drugs become harder to get, lawmakers are struggling to come up with humane alternatives for death row inmates.
November 23, 2014, 1:00pm
Photo via Flickr User Ken Piorkowski

​In the summer of 2011, Hospira—the only company in America still producing sodium thiopental, the painless lethal injection drug—moved their facilities to Italy under the condition that the company would stop producing the drug because it violated a European Union law. Since then, state legislators in death penalty states have been struggling to find humane alternatives in some sort of bizarre, primitive regression to electric chairs, gas chambers, hangings, and firing squads.

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This week, Utah House Representatives on the Law Enforcement and Criminal Justice Interim Committee endors​e​d bringing back firing squads as a method of execution, with a 9 to 2 vote supporting a bill sponsored by Republican Representative Paul Ray. While his phone has been going straight to voicemail for the past two days, he told reporters on Wednesday, "We have to have an option, if we go hanging, if we go to the guillotine, or we go to the firing squad, electric chair, you're still going to have the same circus atmosphere behind it. So is it really going to matter?" It's worth noting that Utah was also briefly the only state to allow execution by behe​adin​gs in the mid-1800s, although none occurred as a form of "blood atonement." It was also the first state to execute a death row inmate after capital punishment was reinstated in 1976, and he was executed by firing squad.

Utah banned execution by firing squads in 2004, but not retroactively. Death row inmates who had chosen the method pre-ban were still allowed the option, and on June 18, 2010, Ronnie Lee Gardner became the first of three eligible inmates to die by state-sponsored gunshot. The day of the execution, Gardner was restrained and dressed in a dark blue jumpsuit with a hood covering his head. A white target was positioned over his heart. Twenty-five feet away, at the other end of the execution chamber, five anonymous volunteer police officers behind a gunport were handed four Winchester rifles loaded with .30 caliber rounds, and one was loaded with a non-lethal wax bullet, to create uncertainty as to which officer fired the fatal shot. Counting down from five, the officers simultaneously fired before "two," and upon being shot, it was repo​rted that Ronnie clenched his hands and raised his arms in the air, then slumped lifeless, blood pooling in his dark jumpsuit.

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A 1993 stu​dy entitled "The Possible Pain Experienced During Execution by Different Methods" compared execution methods in 86 countries, including shooting, hanging, stoning, beheading, electrocution, gassing, and lethal injection. Researchers determined that only the injection had the potential to be painless, although in conclusion it notes, "Nearly all execution procedures are likely to be attended by pain to the condemned person. Nevertheless, despite the evidence presented above, it is widely asserted that executions are humane and painless (Supreme Court 1890; Purchase 1953; Berns 1980; Sawyer 1991), although no evidence to this effect appears to have been published."

In reference to firing squads it states, "The Royal Commission on Capital Punishment (1953, para 710) discussed shooting as a possible alternative to hanging, but rejected it on the grounds, inter alia, that 'it does not possess even the first requisite of an efficient method, the certainty of causing immediate death.' Those giving evidence to the Commission frequently emphasized their belief that any method of execution that they recommended should be rapid, clean, and dignified." Since the loss of easy to source coma-inducing intravenous drugs, it's become clear that death by lethal injection has ceased to be rapid, clean, or dignified.

When Clayto​n Lockett was put to death earlier this year, the state of Oklahoma decided that in lieu of sodium thiopental, they would use an untested mixture of drugs, which were kept secret and purchased with petty cash. Witnesses reported that after Clayton was injected in the groin due to a lack of useable veins, and subsequently declared unconscious, he began to shiver, gritted his teeth, and tried to speak. When finally injected with potassium chloride to stop his heart, Clayton thrashed and his breathing became labored, before uttering, "Man," and trying to get up. The execution was deemed a failure as prison officials had neither the available veins, nor a sufficient supply of the drugs left over, and the execution was stayed. But Clayton suffered a massive heart attack within the hour and died. Similarly, in July, Joseph Rudolph Wood reportedly gasped 660 times "like a fish on shore gulping for air" in the two hours it took him to die via a similarly concocted drug cocktail.

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Faced with the realities of the changing execution methods, the purpose of Ray's firing squad bill is to give the state an alternative choice when facing the potential of not obtaining the necessary drugs for a lethal injection within 30 days. Lethal injections, in fact, have a 7.1 percent failu​re rate, which compared to the firing squad's zero percent certainly makes for a stronger argument. We've reported before that dying via electr​ic chair is a painful ordeal, yet in May the method was signed into Tennessee law as an alternative to the now-ineffective injection. Back in January, Wyoming, struggling with the same issue, proposed building a gas chamber, which was only challenged in the legislature on the basis of cost. In that case, Sen. Bruce Burns proposed firin​g squads, citing pre-2004 Utah as an example.

The decision to pursue efficacy over gruesome imagery (hanging) or historical discomfort (gassing) rephrases the entire question as to what makes one method more "humane" than another, or whether it even matters. On some level, killing another person, even in the context of wrongdoing, could be considered entirely inhumane, and once you take the plunge, no sugarcoated Kevorkian-esque methods are really going to redeem the value of what anti-death penalty advocates consider murder.

Of course, the heart of the death penalty debate is that it does matter, even if only by way of adhering to the constitution, which is a concern of Richard Dieter, the Director of the Death Penalty Information Center. Over the phone, he told me that "first and foremost, legislators have an obligation to follow the constitution, which protects against cruel and unusual punishment," which in this case means striving for the least painful method of execution. But he agreed that there is "some dispute" as to which method that would currently be. "There may not be a single answer, but [being humane] should be the goal, rather than 'How do we keep executing people without a delay.' The intent is important here."

Ray's intentions are certainly geared towards that latter mindset. One of the two no votes by Representative Mark Wheatley asked, "What problem does this solve?" Ray replied, "A long, drawn out legal battle." The inherent problem is that urgency sidesteps a more important question, which is, How do we keep our prisoners from suffering when we kill them? Dieter also pointed out that "Utah isn't saying the firing squad is the best, least painful, most humane method. I mean, they got rid of it! They banned it! They didn't have to. Now they're going back solely because of the practicalities of it, not the humanity of it all." Before ending the call, he told me, "It's a gruesome business to be experimenting in, but at least it should be within the goal of being most humane, along with the question of whether we should be doing it at all. But that might be further down the road."

Follow Jules Suzdaltsev on ​Tw​itter.