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Back to the Firing Squad?


Professor Doug Berman at Sentencing Law and Policy has this entry today noting a NYT article about the possibility that states could, or should, return to the firing squad or other, past methods of execution in light of both the difficulty of obtaining the drugs used in the "three drug cocktail," and/or of the continuing, ceaseless litigation about whether states must use one particular kind of injection or another.

Lethal injection came about because our country was attempting to do what pro-defense groups wanted it to do, i.e., make executions less painful and more humane.

If it turns out that that agenda was only a head-fake, and was actually just the latest ploy to delay executions indefinitely (i.e., to impose a de facto moratorium without being honest enough to say so), society is not helpless.

[Editor's Note: If you have trouble accessing the NYT site, try the Texas Tribune.  Same story. -- KS]


As I noted in commenting on Doug's blog, here are the basics.

1. The public, by a fat 2-1 margin, supports capital punishment. 

2. The courts have determined that capital punishment is not a violation of the Eighth Amendment, see Gregg; Baze.

3. It will therefore continue for the indefinite future; indeed, there are some indications it will expand, see, e.g., here and here.

4. If method-of-execution challenges in the injection context turn out just to be abolitionism in disguise, they will be pushed aside, and the country will settle on a different method.

In turning to lethal injection, the country was trying to be accomodating to liberal concerns. If that's not working, OK, fine, we'll go back to what we had before. Not my choice, but I don't create the liberal agenda. Liberals do that.

One other note.  I suspect that the article Doug refers to appeared in the strongly abolitionist NYT, not as a helpful suggestion to death penalty states, but to arouse public angst at the prospect of violent executions.  The condemned, no matter how thoroughly evil and how deserving of his fate, is still a human being, and it's difficult for normal people to watch, or even contemplate watching, a human being's getting shot to death.  Accordingly, the real agenda here is not what liberals would have us believe.  The real agenda is to increase public opposition to the death penalty by focusing on the execution itself.

This is an old trick.  The object of the game is to persuade the public to ignore the reasons the condemned is where he is and attend only to the solemn moment he departs this life.  But thoughtful people do not forget the reasons for their law; to the contrary, they take pains to remember them.

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