Faced with dwindling sources for execution drugs and a pending Supreme Court review of the constitutionality of using the tranquilizer midazolam, some death penalty states are looking back to the future for alternative methods of killing inmates.

Hello, firing squad and the electric chair.

In Utah – which dropped the firing squad in 2004 for future cases – and Wyoming, state legislators have proposed bringing back the bullet if executioners can’t procure drugs in the states’ approved lethal-injection protocols. In Tennessee, legislators last year adopted the electric chair for their Option B, though inmates have filed a legal challenge.

Why did states move away from firing squads and electric chairs in the first place? Bad optics, as the public relations folks like to say. Particularly when flames erupted from an inmate’s head as he was electrocuted. The passage of time hasn’t made those execution methods any less barbaric.


That a supposedly civilized country is going to such lengths to find palatable ways of killing its own citizens should give us pause. And yes, the “kill ‘em all crowd” would be happy with drawing-and-quartering on the village green. But that’s not the behavior of an advanced, mature culture.

Author Radley Balko, who opposes the death penalty, nevertheless suggests the firing squad might indeed be the quickest and most effective method of execution (9th Circuit Court of Appeals Chief Judge Alex Kozinski thinks so, too). Perhaps. Or maybe we should return to the French Revolution’s Reign of Terror with its insatiable guillotine.

But is this a political debate we want to have? Arguing over the best way to kill someone? Exploring the minutiae of how people die to distill the most humane method of committing an inhumane act?

Harvard law professor Carol Steiker said recently she believes the death penalty may be on its way out, but not for another decade or so.


“It would not surprise me if the death penalty were constitutionally invalidated sometime in the next couple of decades,” she said. “The Supreme Court has been on a trajectory of narrowing and questioning the death penalty. In 2002, it held that people with mental retardation, now called intellectual disability, couldn’t get the death penalty. In 2005, it held that juvenile offenders couldn’t get the death penalty. In 2008, it held that people who commit crimes other than murder — even the crime of aggravated rape of a child — couldn’t get the death penalty. These are really significant limitations on capital punishment.”

I hope the court moves down that path more quickly than Steiker suggests, though given the current makeup it’s hard to see a majority that would find capital punishment to be inherently unconstitutional. Though the ruling last year by federal Judge Cormac J. Carney that California’s death penalty is unconstitutional may offer a path.

Carney found that the state’s execution system had so many delays - mostly a function of too little state funding - that it has lost any pretense of serving a penological function. California has executed no one since 2006, and the death penalty is on hold while the state tries to resolve constitutional problems with the adoption of its lethal-injection protocol.

Given the delays in executions, California has a “system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed,” Carney said.


The problems aren’t California’s alone. It’s a corrupted practice, unevenly applied in a system in which the truth is too easily manipulated. Executions aren’t acts of justice; they are political acts. The Death Penalty Information Center reported two years ago that all of the nation’s death row cases came from only 20% of the nation’s counties.

So how’s that for arbitrary: Whether a killer receives a death sentence in California or Texas or any other state with capital punishment, depends in large part on what county the crime occurred in, not the crime itself.

Maybe the Supreme Court will have trouble reconciling that with the concept of cruel and unusual punishment, not to mention equal protection of the law.

Follow Scott Martelle on Twitter @smartelle.