A bill passed by the Utah Senate Tuesday approving execution by firing squad represents the latest move toward antiquated execution methods in states that are running out of lethal injection drugs and could signal a turning point for the death penalty in the US.
Although Utah Governor Gary Herbert has not yet said whether he will sign the proposal into law, the bill would legalize firing squads in cases where lethal injection drugs were not available.
A national drug shortage of lethal injection ingredients has led states to adopt new tactics in recent years in order to pursue their executions. Some states have created their own mix of experimental injection drugs, which in some instances have led to highly-publicized botched executions.
Meanwhile Tennessee last year passed a law that would allow inmates to be electrocuted if no lethal injection drugs are available, and Oklahoma's legislature is currently considering death by nitrogen gas inhalation.
Some death penalty experts say that the push toward legalizing more draconian forms of execution is a political move, with legislatures trying to pressure the courts, including the US Supreme Court, to allow new, experimental drugs to be used. The Supreme Court this year agreed to hear a case about a botched execution that utilized new drugs in Oklahoma.
"The states are trying to send a message to the pharma companies and courts: if they can't get the drugs they will go to draconian methods no one wants," Richard Dieter, executive director of the Death Penalty Information Center, told VICE News today. "The courts are going to have to decide which drugs are allowable, and compared to firing squad, they might decide it is allowable. Compared to other drugs that are better, it might not be."
"We'd create a spectacle internationally if we start using firing squads to kill people."
Others say that the proposed laws are merely practical: states can't safely perform lethal injections without the old drugs and want to avoid the legal battles that come with the new experimental drugs, but still have prisoners sitting on death row whom they need to execute.
"You have states that have to carry out these executions. As a political issue they have to, and I think it's pragmatics. If they can't do it by lethal injection, they'll do it by electrocution," said Deborah W. Denno, professor of law at Fordham University School of Law. "It's also a medical issue. They have to have clean drugs if they're injecting them into people."
Pharmaceutical companies have declined to produce lethal injection drugs.
Dieter of the Death Penalty Information Center speculated that the resurgence of old methods of execution, like firing squad and electric chair, would seem so barbaric to the American public that it may actually help bring a swift end to the death penalty in the US. It would also harm the country's reputation abroad, he said.
"We'd create a spectacle internationally if we start using firing squads to kill people," he said. "We see [the Islamic State] or other terror groups executing people, and it's not completely parallel, but I think the brutality of some of that is what shocks people."
The public's perception of the humaneness of different execution methods may not line up with reality, according to Fordham University's Denno. Though electrocution is clearly "barbaric," she said, "I think differently about firing squad."
"It's clearly a more humane method. People think it's the most barbaric because it's oldest method we have on the books, or at least just as old as hanging," he said. "But the firing squad is quick. People die quickly with dignity. There's a target on their heart and their heart gets blown out."
Still, headlines about botched executions and the legalization of other forms of execution may be eroding Americans' support for the death penalty. Last year saw the fewest executions in 20 years. Denno said jurors are now less likely to sentence criminals to the death than in the past.
Whether Utah and Oklahoma pass their respective bills into law, the future of the death penalty rests mainly on the US Supreme Court and Texas. Texas has said publicly it has only two doses of the state's old lethal injection formula left in stock; what it does next will likely be mirrored by other states, Denno and Dieter said.
"If Texas can't find the drugs, this country is in a new day," the Death Penalty Information Center's Dieter said. "It's not clear where all of this goes even this year. If Texas says we got a new supply or a new drug, even if it's unsaid where they got it from, then it can skip the Supreme Court completely. It is at a crisis point. That's why we're seeing all these draconian bills."
"There's a level of incompetence now because people are using drugs they've never used before in circumstances that are unfamiliar to them," Fordham's Denno said.
Follow Colleen Curry on Twitter: @currycolleen