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Death Penalty

Kozinski dissent: 'Firing squads can be messy' but they are better than lethal injection

A dispute over a death-row inmate’s claimed First Amendment right to information on execution drugs heads to the U.S. Supreme Court after a federal appeals court declined to hear the case en banc, spurring an unusual dissent calling for a return to the firing squad.

The Arizona Attorney General’s office has announced it will ask the U.S. Supreme Court to intervene in the case of convicted double murderer Joseph Rudolph Wood, the Associated Press reports. The San Francisco-based 9th U.S. Circuit Court of Appeals issued an injunction on Saturday that stayed Wood’s execution until he receives information about the source of the drugs, the credentials of the executioners, and the development of Arizona’s death-penalty drug protocol.

On Monday, the 9th Circuit declined to rehear the case en banc, spurring a dissent by Chief Judge Alex Kozinski. He said he has “little doubt that the Supreme Court will thwart this latest attempt” to interfere with Wood’s execution, but he went on to criticize the “misguided” switch to execution drugs from other more traditional methods of execution. Among the publications with stories are AP, the Wall Street Journal Law Blog and NBC.

“Whatever happens to Wood,” Kozinski wrote, attacks on execution drugs will not stop because “the enterprise is flawed.” He continued:

“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.

“If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. …

“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.

“While I believe the state should and will prevail in this case, I don’t understand why the game is worth the candle. A tremendous number of taxpayer dollars have gone into defending a procedure that is inherently flawed and ultimately doomed to failure. If the state wishes to continue carrying out executions, it would be better to own up that using drugs is a mistake and come up with something that will work, instead.”

Subsequent coverage:

ABAJournal.com: “SCOTUS allows execution of inmate, vacates 9th Circuit decision that he had a right to drug info”

ABAJournal.com: “Execution takes nearly two hours; PD filed emergency motion after first hour”

Updated to add subsequent coverage on July 24.