28 Mar The Way We Talk About Firing Squads In This Country
Last week, Idaho became the fifth state in the U.S. to bring back firing squads for executions in the state. On Friday, Governor Brad Little signed into law House Bill 186, proposed legislation that, with the governor’s signature, amended Idaho law to allow for executions by firing squad as an alternative to lethal injection.
Prior to HB 136, Idaho law only authorized “[t]he punishment of death [to] be inflicted by continuous” “intravenous administration of a lethal quantity of a substance or substances approved by the director of the Idaho department of correction until death is pronounced by a coroner or a deputy coroner.” With HB 136, Idaho law now authorizes the use of a second method: “[f]iring squad.”
Idaho law still prioritizes lethal injection. According to the statute, “the director of the Idaho department of correction must determine, and certify by affidavit to the court that issued the death warrant, whether execution by lethal injection … is available” “[n]ot later than five (5) days after the issuance of a death warrant[.]” As long as it is, the law says, “the method of execution shall be lethal injection.”
But “[i]f the director does not certify that lethal injection is available, fails to file a certification … or otherwise determines that lethal injection is unavailable, the method of execution shall be firing squad.” The backup plan for using firing squads is additionally available in the event that a court ever holds that lethal injections are unconstitutional: “If a court holds that lethal injection is unconstitutional, on its face or as applied, or otherwise determines that firing squad is a constitutionally required method of execution, the method of execution shall be firing squad.”
For those on death row, advocates and elected officials, the conversation around firing squads is a complicated one.
The reaction to Gov. Little’s decision to sign HB 136 was predictably complicated. Gov. Little described his decision as one aimed at bringing peace to victims and their families. “Throughout my life in public service, I have supported capital punishment when our justice system determines death is the only appropriate sentence for a person who committed a heinous crime,” he said. “The families of the victims deserve justice for their loved ones and the death penalty is a way to bring them peace.”
The ACLU of Idaho, on the other hand, called the decision “extremely disappointing.” “This is extremely disappointing. The ACLU opposes the death penalty in any form as a violation of Americans’ Eighth Amendment right to be free from cruel and unusual punishment,” the organization tweeted. “A firing squad is especially gruesome.”
Interestingly, the reaction to firing squads from those on death row seem to fall somewhere in between. Last year, for instance, Richard Bernard Moore, a man on death row in South Carolina, elected to die by firing squad rather than by electric chair. A couple of months later, Michael Nance, a man on death row in Georgia, successfully petitioned the U.S. Supreme Court for an order requiring execution by firing squad, arguing that this method, unlike lethal injection, would result in a “swift and virtually painless” death.
Supreme Court Justice Sotomayor echoed these sentiments in a dissent back in 2021. “Unlike nitrogen gas,” she wrote, “the firing squad has a long track record of successful use.” A death penalty expert, Fordham University law professor and death penalty scholar Deborah Denno, said the same thing in early 2022 too. “They are more efficient,” she said at the time. “They’re also more certain.”
But for judges, the conversation around firing squads is usually short and sweet — and usually unremarkable.
Frankly, the conversation around firing squads makes me uncomfortable. As bothersome as I find the idea of a government putting a literal target on someone’s heart and ordering people to shoot that person from just a few feet away, I can’t help but listen to the perspectives of the people who are on death row, the death penalty experts and others. And, for the most part, there seems to be a growing consensus that firing squads, as opposed to electric chairs or lethal injections, might be the way to go as the death penalty returns to center stage in the U.S.
But the fact that the conversation left me uncomfortable made me wonder how judges talk about firing squads and whether they’re uncomfortable with it too. Last year (literally), I had a similar curiosity in this article when Supreme Court Justice Clarence Thomas called a man’s requests that his long-time pastor “pray over” him and “lay hands” on him “a demonstrably abusive and insincere claim….” In other words, Justice Thomas, said the man “wielded” his religion “abusively.” Reading a judge — even a judge as successful as Justice Thomas — judge the man’s religious views was uncomfortable.
That article was more anecdotal than anything else. After all, it only focused on Justice Thomas’ comments in one case. This time around, I took a different approach and read every appellate court decision with the words “firing squad” in it from all five states that authorize that method of execution: Idaho, Mississippi, Oklahoma, South Carolina and Utah. Below, I’ll summarize what the judges in each of those states had to say about the topic and let you come to your own conclusions about whether those conversations make you uncomfortable too.
To begin, Idaho’s appellate courts have only mentioned firing squads twice. This makes sense considering the fact that HB 186 didn’t pass until last week and won’t take effect until this summer. Nevertheless, one of the two cases mentioning the subject, State v. Pizzuto, only referenced firing squads in the context of a statement from the victim’s family member about wanting a defendant to “get death by firing squad….”
The second case, Sivak v. State, was similarly unremarkable. In that case, the Supreme Court of Idaho expressly declined to address whether “the contingency method of execution by firing squad constitutes cruel and unusual punishment in violation of the eighth amendment to the United States Constitution” because it saw “no reason why such [lethal injection] would be impractical in th[e] case, particularly in light of its successful use in many other states.”
The only appellate court in Mississippi to mention firing squads was the Supreme Court of Mississippi in a case called Jones v. State. In an admittedly confusing concurrence, one justice mentioned firing squads while comparing the Eighth Amendment’s “cruel and unusual punishment” provision with the requirement under Mississippi law that a capital offense be “especially heinous, atrocious or cruel” before a prosecutor may seek a death sentence.
Only one judge has mentioned firing squads in Oklahoma. In a case called Lockett v. Evans, the Supreme Court of Oklahoma was tasked with deciding whether Oklahoma’s so-called “secrecy” provision, a state law prohibiting the disclosure of “[t]he identity of all persons who participate in or administer the execution process and the persons who supply the drugs, medical supplies or medical equipment for the execution,” was unconstitutional.
Long story short, Oklahoma’s Supreme Court rejected the constitutional challenge. In doing so, the Supreme Court emphasized the fact that the state’s Department of Corrections had already disclosed the drugs it would use: “By the time of that decision, the DOC had already disclosed its new execution protocol and the identity of the drug or drugs to be used in its choice of five different drug or drug combinations.”
In a concurrence addressing whether the appeal belonged in the Supreme Court or the Criminal Court of Appeals, a judge mentioned firing squads in passing. But that judge wasn’t addressing the method of execution itself. Instead, that judge was bemoaning the “frivolous” nature of the case.
“It is my view that from the very beginning this so called ‘civil’ litigation has been frivolous and a complete waste of time and resources of the Supreme Court of Oklahoma,” the judge wrote. “The plaintiffs have no more right to the information they requested than if they were being executed in the electric chair, they would have no right to know whether OG & E or PSO were providing the electricity; if they were being hanged, they would have no right to know whether it be by cotton or nylon rope; or if they were being executed by firing squad, they would have no right to know whether it be by Winchester or Remington ammunition.”
Like Mississippi and Oklahoma, only one case in South Carolina has addressed firing squads as well: Owens v. Stirling. That case arose out of a declaratory relief action filed by four prisoners challenging two of execution methods, the electric chair and a firing squad, permitted under South Carolina’s death penalty statute. The trial court ruled that “carrying out executions by either firing squad or electrocution violates the prohibition on the inflicting of cruel, corporal, or unusual punishment” in South Carolina’s state constitution.
The Supreme Court did not substantively address that issue in the appeal, however. It only addressed a related discovery dispute.
Utah caselaw talks about firing squads more than the others. Most are unremarkable. For instance, in State v. Brown, the Supreme Court of Utah mentioned that the defendant challenged his “sentence of death by firing squad….” Likewise, in State v. Holland, the Supreme Court discussed a decision to “impose the death penalty upon the defendant … by the firing squad or the administering of lethal intravenous injection, that being at the option of the defendant.”
Two judges made similarly unremarkable comments about firing squads in State v. Houston. There, a concurring justice and a dissenting justice both mentioned firing squads while discussing Wilkerson v. Utah, a decision in which the the U.S. Supreme Court affirmed a sentence of death by firing squad and specifically rejected an argument that the sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment.
But several other Utah cases address firing squads in somewhat more meaningful ways. For instance, in State v. Rettenberger, the Supreme Court analyzed whether a police officer’s comment about firing squads — “You’re looking at a firing squad, what are the other choices, is that it?” — during an interrogation rendered the a confession involuntary. “[S]tanding alone,” they did not. But, “when considered in light of the totality of circumstances,” the Court held that they “strongly weigh[ed] against the conclusion that the confession was voluntary.”
In a similar situation in State v. Leiva-Perez, the Court of Appeals of Utah reached the opposite conclusion where police told a suspect that he’d benefit from “a difference in the law … when someone comes forth and stands tall for the mistakes they’ve made, versus someone who doesn’t.” The Supreme Court considered similar comments by police during interrogations in State v. Bolsinger, State v. Fullerton and State v. Ashdown. But those cases are unremarkable too.
We’re already having complicated conversations about firing squads in this country. Judges should have them too.
There isn’t much to take away from these cases. Out of all five states who use firing squads to carry out executions, there are only a handful of cases mentioning them. And, most of the time, those mentions are unremarkable — and never as complicated as the conversations that are taking place outside of courtrooms. Until judges are tasked with meaningfully addressing the complicated conversations surrounding firing squads, those out-of-courtroom conversations will continue.
Right now, it seems like those conversations are primarily in support of bringing firing squads back as the “more humane” option for the government to kill someone. Ronnie Lee Gardner was one of the people persuaded by those conversations. “I like the firing squad,” he said prior to his death. “It’s so much easier … and there’s no mistakes.”
But there are mistakes — like when Utah officials executed Eliseo Mares in 1951 using a firing squad. As VICE’s Gabrielle Caplan wrote in this article last year, “Mares died “silently and horribly” when the shooters, positioned just 15 feet away, missed his heart and hit him in the hip and abdomen instead.” “Several minutes passed before Mares bled to death,” Caplan wrote.
The difference between what happened to Mares and what Gardner believed about firing squads is demonstrative of how complicated the conversations around firing squads are. Having those complicated conversations is extremely important. But judges should be having them too. They aren’t.