Firing squads could return as states debate the death penalty | Analysis
Twenty-seven states allow capital punishment, but public support for it has declined
The gurney in the execution chamber at Rockview State Prison in Centre County, (Pa. Dept. of Corrections photo)
By Noelle Straub
Idaho wants to bring back the firing squad.
The state House last week approved a bill that would allow the execution method as an alternative to lethal injections. Idaho has had trouble getting the drugs needed to kill inmates on its death row.
Lawmakers in other Republican-led states likewise want to expand or reinstate the death penalty, for a mixture of practical and political reasons. Some leaders in Democratic-led states, meanwhile, are working to abolish it, following the longer-term trend of declining use of capital punishment throughout the country.
Twenty-seven states and the federal government have the death penalty, but only a handful use it regularly, according to the Death Penalty Information Center, which collects and analyzes data on capital punishment.
Support for the death penalty has been falling over the decades. The majority of Americans, 55%, favor the death penalty for convicted murderers, according to an October Gallup poll. But that’s the second-lowest support since 1972, and well below peak support of 80% in 1994. The decline has come mostly from Democrats’ diminished support, while Republicans remain in favor, Gallup found.
The issue came to a head in Idaho in December, when a death row inmate got a reprieve because the state was unable to obtain the needed lethal drugs; the execution has been rescheduled for March 23.
Republican state lawmakers introduced a bill that would allow for death by firing squad if lethal injection is not available or if a court rules that lethal injection is unconstitutional. Firing squads were legal — though never used — in Idaho until 2009, when the legislature repealed the practice.
The Idaho House passed the bill 50-15 last week, with five Republicans joining all Democrats present in opposition.
“This is a rule of law issue; our criminal system should work and our penalties should be exacted,” GOP state Rep. Bruce Skaug, the bill’s sponsor, said at a committee hearing last month. “When promised and deserved, the death penalty should be duly invoked.”
He also said he considers the firing squad a better execution method.
“I find it to be, in my personal view, more humane than lethal injection,” he said. “Lethal injection gets botched about 6 to 8% of the time and is a mess.”
But Idaho House Minority Leader Ilana Rubel said she had a “visceral aversion” to the proposal. She said lawmakers saw “grotesque” photos of the most recent American to die by firing squad, in Utah in 2010.
“If you’re gonna go down the path of firing squad, you know, why stop there?” she said in an interview with Stateline. “I mean, why not bring back the guillotine and hanging and drawing and quartering and you know, all of the gruesome methods of bygone centuries, because that really feels like what we’re returning to with this.”
She argued the “temporary problem” of getting the necessary drugs doesn’t require a permanent change in law and objected to allowing a judge to impose the method. “It’s one thing to have a person choose it; it’s another thing to have that method be forced on them by the state.”
‘It really is the practical thing’
Deborah Denno, a Fordham University law professor who studies the death penalty, said states have been turning to other methods “simply because they don’t know what else to do” when they having trouble accessing drugs. “It really is a practical thing.”
She said there have been no botches with the firing squad, which kills quickly, and is the only method where experienced experts are available to carry it out. Mississippi, Oklahoma, South Carolina and Utah allow the firing squad, though it’s only been used three times, and only in Utah, since the 1970s.
“The most humane method of execution is the firing squad. There’s no question about that,” she said. “It really should be brought back, in my mind, if we’re going to continue to have the death penalty.”
Alabama is readying a new execution method that would deploy nitrogen gas, depriving the inmate of oxygen. Republican Gov. Kay Ivey paused executions in November for a review after multiple lethal injections failed because of trouble starting intravenous lines. She announced last month that the state would resume executions.
In Tennessee, after a lawmaker introduced a bill to allow firing squads, Republican state Rep. Paul Sherrell asked whether “hanging by a tree” also could be a state method. He later apologized, after Black lawmakers expressed outrage in a state with a history of lynching.
Laws in Flux
Capital punishment has a long and complicated history. In 1972, the U.S. Supreme Court ruled that the death penalty was unconstitutional as it had been carried out in three cases, which put a moratorium on the practice nationwide. But in 1976, the court ruled that capital punishment was constitutional in limited circumstances. Many state policies likewise have remained in flux.
Supporters say the death penalty deters and punishes the worst crimes and that it brings justice to the victims’ families. But opponents note that it has been applied unevenly, disproportionately affecting people of color and those with low incomes, that a significant number of death row inmates have been exonerated, and that the lengthy court process costs states more than non-capital cases.
Since 1976, there have been 1,565 executions in the United States, according to the Death Penalty Information Center. Since 1973, more than 190 people have been released from death row “with evidence of their innocence,” the center said.
Denno said the long-term trend is a decline in executions and a movement of states to get rid of the death penalty. “It’s pebble by pebble; it’s very slow.”
Rapid changes in state policies began in 2009 and 2010, after one of the needed trio of execution drugs became scarce, Denno said. “That’s when all hell broke loose and the chaos really started. And ironically the botches became more pronounced than ever before, which I thought was really inconceivable.”
Florida has seen numerous changes in its death penalty rules over the decades. Now, Republican Gov. Ron DeSantis and some state lawmakers want to make it easier for juries and judges to impose it. Republicans introduced legislation that would end a requirement for a unanimous jury vote to impose the death penalty, instead setting the bar at 8-4. It also would allow judges to overturn juries’ recommendation of a life sentence and instead impose the death penalty.
Backers cite the gunman who killed 17 people at Marjory Stoneman Douglas High School in Parkland, Florida, in 2018. The jury split on the death penalty, with three against, leading to a life sentence for the shooter instead. The outcome drew criticism from some of the victims’ families.
Backed by DeSantis, Republican lawmakers also introduced legislation that would allow the death penalty for adults who sexually abuse children younger than 12. But the U.S. Supreme Court in 2008 ruled that states could not apply the death penalty in the case of a child rape that didn’t result in the victim’s death.
The new Florida bill text argues the high court’s decision and a 1981 Florida Supreme Court decision both were “wrongly decided and an egregious infringement of the states’ power to punish the most heinous of crimes.”
Richard Dieter, executive director of the Death Penalty Information Center, said officials in some states, including Florida and Alabama, are trying to look tough on crime.
“It’s not necessarily that, ‘We thought this through, we think this is the best way the criminal justice system can act,’” Dieter said in an interview with Stateline. “Rather, that it’s the best symbol that we can latch on to that represents our cause or our beliefs.”
Last month, Florida executed a convicted murderer by lethal injection, the first prisoner killed there since 2019.
Iowa doesn’t have the death penalty, but some Republican lawmakers support new legislation that would allow it in limited cases: when an adult kidnaps, sexually abuses and murders a minor. But the bill is unlikely to advance because of opposition from another Republican, House Judiciary Committee Chair Steve Holt.
Oklahoma Attorney General Gentner Drummond, a Republican, recently sought and won permission from the Oklahoma Court of Criminal Appeals to slow the pace of executions in his state from every 30 days to every 60 days. He called the pace “unsustainable” and said it was “unduly burdening” the corrections department personnel who must train for and carry out the executions.
Attempts to Abolish
In Pennsylvania, Democratic Gov. Josh Shapiro last month called on the General Assembly to abolish the death penalty and announced he would not sign any death warrants.
Previously the state’s attorney general, Shapiro said in his announcement that he used to support capital punishment. After a gunman killed 11 people at the Tree of Life synagogue in Pittsburgh in 2018, he said his first reaction was that the killer should be put to death. But members of the synagogue told him they didn’t support that, Shapiro said, which moved him.
But Senate Majority Leader Joe Pittman, a Republican, said he learned of Shapiro’s decision only minutes before it was announced, which he called “a rash approach to an issue of this magnitude.”
Pennsylvania’s last execution was in 1999. In 2015, then-Democratic Gov. Tom Wolf placed a moratorium on the practice, while urging a review and changes to the system.
Pennsylvania Democratic lawmakers are proposing bills to end capital punishment. Democratic state Rep. Christopher Rabb said it was his fourth time introducing the bill.
“Our government doesn’t have the moral authority to decide who should die,” Rabb said in an interview with Stateline.
He noted exonerations in the state. “There are no do-overs. If the government messes up, we can’t bring someone back to life.”
He also cited the significant legal and administrative costs, saying Pennsylvania taxpayers have spent more than $1 billion over 40 years to address death penalty cases in the state.
“Should we govern based on vengeance? Or should we govern based on evidence-based research to suggest what works best to keep us safe and what is the best way to steward taxpayers’ money?”
The legislation could pass in the now Democratic-controlled Pennsylvania House, though it will be a heavier lift in the Republican-controlled Senate, Rabb acknowledged. And some Republicans are drafting bills to keep the death penalty.
In Delaware, which no longer uses the death penalty after the state Supreme Court struck it down in 2016, the law remains on the books. State lawmakers have introduced legislation that would formally abolish it.
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