Clinging to Capital Punishment

By Lisa Ebersole

Last week the Utah state legislature passed a law that would reinstitute death by firing squad as an option for capital punishment if the state were unable to maintain adequate supplies of lethal injection drugs. Many are skeptical of this seemingly barbaric and primitive method of execution—in a recent poll only 12 percent of respondents said that they would support this type of substitution. Some contend, however, that death by firing squad is actually the quickest (and therefore most humane) way to kill someone. To date, it is unclear whether Utah’s Governor Herbert will sign the bill into law.

Utah is not alone in trying to preserve its capital punishment regime. In 2013, Georgia passed a law prohibiting the state government from releasing information about where it obtains its lethal injection drug components in an effort to protect suppliers from public pressure. On March 2, 2015, Kelly Gissendaner’s execution was delayed in Georgia because the lethal injection fluid “appeared cloudy.” Seven days later, Ms. Gissendaner’s lawyers filed a new suit challenging the secrecy law, arguing that they need to know more information about the drugs, including where they are from, to ensure that inmates on death row are not subjected to cruel and unusual punishment, as defined by the Eighth Amendment, during their execution. The complaint also alleges that the state subjected Ms. Gissendaner to punishment that exceeded her sentence, namely, hours of intense anxiety and “mortal fear” while officials decided whether she would be put to death.

Following Georgia’s lead, the Alabama House of Representatives passed their own secrecy law this week to protect those who provide the state with lethal injection drugs. (The same provision also declared the electric chair the state’s new back-up method of execution.) The Alabama Department of Corrections has already refused records requests from the Associated Press on execution protocol, arguing that such information is confidential.

The Alabama and Georgia secrecy initiatives present a host of issues, including attempting to circumvent the Freedom of Information Act. And, the return to old methods of execution appears not only desperate, but also to ignore the fact they have been tried throughout history, and abandoned due to gruesome failures.

Over the past two decades, support for the death penalty has declined by nearly 20 percentage points. Currently, 63 percent approve of its use against convicted murderers. This support could explain why states have pursued such great lengths to exact capital punishment. Perhaps, however, the larger trend should be the more salient indicator. Surely, ignoring the growing global disapproval—evidenced by the European Union ban on the export of such drugs—in favor of the stubborn pursuit of the firing squad and electric chairs nicknamed Yellow Mama, will come out on the wrong side of history.