The 9th Circuit Court of Appeals Chief Judge, Alex Kozinski, caused a stir in legal circles this week, when he used a dissent in a death penalty case to call on states to ditch lethal injection and bring back old execution methods.
Assuming the guillotine—"the best" method—is out of the question, Kozinski settled on the firing squad as "the most promising."
Legal scholars say the judge's splashy approach is aimed less at shocking the public than asking it to confront its own relationship with the death penalty.
The dissenting opinion came in the case of an Arizona inmate scheduled to be executed by lethal injection on Thursday. Joseph Rudolph Wood, convicted of killing his ex-girlfriend and her father, sought a delay on the grounds that Arizona has refused to disclose details of their execution protocol. Wood won the stay, and the 9th Circuit decided not to review his case--a decision Judge Kozinski disagreed with on the cases' legal merits.
Kozinski used his dissenting opinion, however, to launch into a bit of a tangent on lethal injection—the preferred execution method of all state's that have the death penalty. Firing squads may be disturbing, he said, but unlike lethal injection, they're relatively fool-proof.
The judge wrote:
"Whatever the hopes and reasons for the switch to drugs, they proved to be misguided. Subverting medicines meant to heal the human body to the opposite purpose was an enterprise doomed to failure. 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—like something any one of us might experience in our final moments.
But executions are, in fact, nothing like that...They 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...
Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all."
Kozinski, it should be noted, is not a death penalty opponent.
In fact, George Washington Law Professor Orin Kerr said Kozinski's unconventional opinion might be an effort at steering the lethal injection cases currently weighing down the legal system in a different direction. At the moment, several states, including California, lack the drugs necessary to carry out an execution. Companies that produce the standard execution drugs have stopped manufacturing them. And challenges to lethal injection procedures have stayed executions indefinitely in many states, including Kozinski's home state of California. (A federal judge in Orange County last week declared California's death penalty system irreparably broken last week due to its arbitrary, heavily delayed executions.)
"I think it was actually a serious discussion of what are the alternatives, if the state is going to execute somebody, how should they do it," Kerr said. "It's really an effort, I think, to change the debate on lethal injections and maybe sidestep lots and lots of cases going through the courts that are about lethal injection, how it's implemented, how the chemicals are obtained, how much information people should know. The courts have really gotten bogged down in these questions and I think Kozinski is trying to sidestep those."
UC-Berkeley Law Professor Franklin Zimring said part of the opinion was just "Just Kozinski being Judge Kozinski." (The judge has a reputation for being outspoken and controversial.)
But mainly, Zimring said, he's attacking America's ambivalence towards the death penalty. Southern states tend to be less ambivalent—accounting for most of the country's executions. But places like California are most comfortable with simultaneously leaving the penalty on the books, while executing very few people.
"In a state like California, where we provide good defense services, the good lawyers that the state pays for fight the system to a draw and create these endless delays," Zimring said. "Turns out most Californians are pretty comfortable with that. We have the largest death row in the world but we haven't had an execution in seven years. And not too many people are getting upset about that."
Lethal injection was a product of this indecision—a way to make the process seem more humane, regulated, and move away from the visible pain of electrocution and the World War II association with gas chambers, Zimring said.
The recent botched lethal injection in Oklahoma put a final dent in lethal injection's public relations strategy, Zimring said.
Now, he said, Kozinski's calling lethal injection's bluff—and trying to steer the discussion towards the real question of whether we want executions or not. But it probably won't work.
"I don't think a switch to firing squads would change American's ambivalence towards capital punishment," Zimring said.
What's more likely to prevail, he said, is "consistent ambivalence creating de facto approval of a dysfunctional system."