(Chicago) The image of a row of gunmen firing in unison into the chest of a condemned prisoner can evoke a bygone, less enlightened era.
But the idea of using firing squads is making a comeback. Idaho lawmakers this week passed a bill to add the state to the list of those that allow firing squads, including Mississippi, Utah, Oklahoma and South Carolina .
This new interest comes as states scramble to find alternatives to lethal injections after pharmaceutical companies banned the use of their drugs.
Some, including a few Supreme Court justices, consider firing squads less cruel than lethal injections, despite the violence involved in riddled bodies with bullets. Others say the issue is open or that there are other factors to consider.
Ronnie Lee Gardner was executed at Utah State Prison on June 18, 2010, for killing a lawyer during an attempted escape from the courthouse.
Gardner sat in a chair, sandbags around him and a target pinned to his heart. Five prison staff, chosen from among volunteers, fired .30 caliber rifles from a distance of about 8 meters. Gardner was pronounced dead two minutes later.
Utah is the only state to have used firing squads in the past 50 years, according to the Washington-based Death Penalty Information Center.
According to the Idaho bill, firing squads would only be used if it is impossible to obtain the drugs needed for lethal injections.
When lethal injection became the main method of execution in the 2000s, pharmaceutical companies began banning the use of their drugs, claiming they were meant to save lives, not take them.
States have struggled to obtain the cocktail of drugs they have long used, such as sodium thiopentone, pancuronium bromide and potassium chloride.
Some states have opted for more accessible drugs, such as pentobarbital or midazolam, both of which critics say can cause excruciating pain.
Other states have looked to other solutions, with some re-authorizing the use of electric chairs and gas chambers or at least considering doing so. This is where firing squads come in.
Sonia Sotomayor, a Supreme Court justice, is among those who think they probably are.
“In addition to being near-instantaneous, death by gunshot can also be relatively painless,” Ms. Sotomayor wrote in a dissenting opinion in 2017.
His comments related to the case of an Alabama inmate who had asked to be executed by firing squad. The majority of the Supreme Court declined to hear his appeal.
Ms. Sotomayor acknowledged in her dissent that lethal drugs can mask intense pain by paralyzing inmates while they are still awake.
“What a cruel irony that the method that seems most humane could turn out to be our cruelest experience yet,” she wrote.
In a 2019 federal case, prosecutors presented statements from anesthesiologist Joseph Antognini, who said painless deaths by firing squads were not guaranteed.
Detainees can remain conscious for up to ten seconds after being shot, depending on where the bullets hit, Dr. Antognini said, and those seconds can be “severely painful, particularly due to the bursting of the bone and spinal cord damage”.
Others point out that executions by firing squad are visibly violent and bloody compared to lethal injections, which can traumatize victims’ relatives and other witnesses, as well as any personnel involved in the execution.
If reliability means convicts are more likely to die as expected, that argument can be made.
Austin Sarat, professor of political science and law at Amherst College, studied 8,776 executions in the United States between 1890 and 2010; he found that 276 of them were sloppy, or 3.15% of the time.
Executions that went wrong include 7.12% of all lethal injections―in a famous 2014 case in Oklahoma, Clayton Locket twisted and clenched his teeth after being administered midazolam―as well as 3.12% of hangings and 1.92% of electrocutions.
The Death Penalty Information Center, however, has identified at least one execution by firing squad that went wrong: In 1879, in Utah Territory, riflemen missed the heart of Wallace Wilkerson and he took 27 minutes to die.
They have never been a predominant method of executing civilians on death row and are more closely associated with the military, especially the execution of Civil War deserters.
From colonial times until 2002, more than 15,000 people were put to death, according to data compiled by researchers M. Watt Espy and John Ortiz Smykla, specialists in the death penalty. Only 143 were shot, compared to 9322 hanged and 4426 electrocuted.
Supreme Court rulings have required inmates who oppose an existing method of execution to offer an alternative. They must prove that the alternative is “significantly” less painful and that the infrastructure exists to implement the alternative method in practice.
In 2019, the Supreme Court ruled in Bucklew v. Precythe that some pain did not automatically mean that a method of execution constituted “cruel and unusual” punishment, which is prohibited by the Eighth Amendment.
The Constitution “does not guarantee a prisoner a painless death — which, of course, many people are not guaranteed,” Judge Neil Gorsuch wrote for a 5-4 majority.
Key factors in determining whether a method is “cruel and unusual” include whether it adds additional pain “beyond what is necessary to carry out a death sentence,” Gorsuch said.