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Is it time to bring back the guillotine and firing squad?

Chief Judge Alex Kozinski suggests the guillotine or bringing back the firing squad to perform executions
Chief Judge Alex Kozinski suggests the guillotine or bringing back the firing squad to perform executionsNinth Circuit Court of Appeals

‘Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions …’

On Tuesday, July 22, the U.S. Supreme Court rejected Joseph Rudolph Wood, III’s last minute appeal to stay his execution, siding with the Arizona Attorney General.

It seems as though the newest trend in arguments to delay executions is to challenge the secrecy surrounding the drugs used, with attorneys arguing death row inmates have a First Amendment right to know who the supplier is, the drugs’ expiration dates and/or the qualifications of the person administering them.

However, last week, the Supreme Court upheld Arizona’s privacy laws, overturning the Ninth Circuit’s grant of a stay.

When the warrant of execution was issued on May 28, 2014, ordering the execution to take place Wednesday, July 23, it provided Wood with a choice of execution by either lethal injection or lethal gas.

The warrant stated if Wood failed to choose one or the other and notify the Department of Corrections of his decision, “the penalty of death shall be inflicted by lethal injection.”

Wood, 55, was convicted in 1991 of murdering his 29-year old girlfriend, Debbie Dietz and her father Gene Dietz, 55, back in August 1989.

Wood’s execution commenced at 1:52 p.m. on Wednesday, July 23, with radically varying accounts of what happened next and until Wood was pronounced dead one hour and 57 minutes later.

The Arizona Supreme Court convened a telephonic hearing with Wood’s defense lawyer and an attorney for the state while the execution was underway with Wood’s attorney attempting to halt the execution.

He claimed in his filing, “He has been gasping for more than an hour. He’s still alive.”

The court was informed of Wood being pronounced dead while the hearing was still in progress.

The DOC issued a statement following the execution saying it had followed protocol in the execution of Wood, re-affirming his “deep-sedation” seven times before he was pronounced dead, claiming aside from snoring, Wood did not make grimaces or otherwise move.

Governor Jan Brewer also issued a statement following the execution of Wood, stating, “I am concerned by the length of time it took for the administered drug protocol to complete the lawful execution of the convicted double murderer, Joseph Wood. While justice was carried out today, I directed the Department of Corrections to conduct a full review of the process.

“One thing is certain, however, inmate Wood died in a lawful manner and by eyewitness and medical accounts he did not suffer. This is in stark comparison to the gruesome, vicious suffering that he inflicted on his two victims – and the lifetime of suffering he has caused their family.”

On July 21, dissenting from the en banc denial to rehear the case, Ninth Circuit Court of Appeals Chief Judge Alex Kozinski stated he had little doubt the Supreme Court would thwart the latest attempt to interfere with Arizona’s efforts to carry out its lawful sentence of execution, and wrote, “I take the occasion to point out how we got here.”

Kozinski wrote, “Until about three decades ago, executions were carried out by means designated for that purpose alone: electric chairs were the most common, but gas chambers, hanging and the occasional firing squad were also practiced.”

Despite most of those methods being unsuccessfully challenged on Eighth Amendment grounds, beginning in the late 1970s states began moving away from those traditional methods of execution and began employing drugs for that purpose.

Kozinski said it might have been done with the belief it would forestall another constitutional challenge, that it was more humane or perhaps because it seemed less brutal.

Whatever the reason, he said all states that have retained capital punishment authorize the use of drugs to carry out executions and it is generally the default method, as it is in Arizona.

Calling the switch to drugs “misguided,” Kozinski said, “subverting medicines meant to heal the human body to the opposite purpose was an enterprise doomed to failure.”

He called Wood’s case “only the latest in an unending effort to undermine and discredit this method of carrying out lawful executions.”

And because California state officials are either unwilling or unable to come up with an execution protocol, Kozinski stated, “Old age, not execution, is the most serious risk factor for inmates at the San Quentin death row.”

Kozinski said, regardless of what happened in Wood’s case, the attacks will not stop because the “enterprise is flawed.”

He said, “Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful …”

Kozinski stated executions are “brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.”

He suggested states wishing to continue carrying out the death penalty “should turn away from this misguided path and return to more primitive – and foolproof – methods of execution.”

Calling the guillotine the best method but “inconsistent with our national ethos,” Kosinski noted the electric chair, hanging and the gas chamber are each subject to occasional mishaps.

He called a return to firing squads as the most promising, pointing out “eight or 10 large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time,” and said there are plenty of people employed by the state who can pull the trigger and have the training to hit their target.

“And,” he said, “nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets.

Yes, it’s messy, but according to Kozinski, if we’re willing to carry out executions, we shouldn’t shield ourselves from the reality we are shedding human blood.

Kozinski also pointed out a tremendous amount of taxpayer resources have gone toward defending a procedure that he calls “inherently flawed and doomed to failure,” and said the state would be better to “own up that using drugs is a mistake and come up with something that will work, instead.”