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Could a firing squad be used for the death penalty? Ask the lawyer

Q: There is that horrific murder of four college kids in Idaho. I have seen news reports now that a state legislator there introduced a bill to have firing squads reinstated as a means of execution, if the chemicals for lethal injection are not available in a timely manner. It got me thinking that since we have no death penalty being enforced in California for now, and there is a lot of concern about using lethal injection, why not something as direct as a firing squad?

H.D., Cerritos

A: Research indicates that lethal injection is the “preferred method” of execution in states that have the death penalty. In recent years, however, there has been difficulty obtaining lethal injection drugs as pharmaceutical companies blocked their drugs from being so used. There have also been some instances where the injections did not work as anticipated; the inmate died in fits and starts.

Some states allow execution by electrocution, some by lethal gas. New Hampshire permits hanging as an option. There are a few states where a firing squad is a back-up execution method: Utah, Mississippi, Oklahoma and South Carolina. Utah has carried out the country’s last three executions by firing squad (since the 1970s), with the most recent in 2010.

But is a firing squad a form of  “cruel and unusual punishment?” The Eighth Amendment to our U.S. Constitution prohibits such conduct. There are protections here against inhumane treatment. Our government is not to impose a penalty that is either barbaric or far too severe for the crime committed.

A firing squad typically requires certain criteria, such as a number of persons who are armed and each presumably is an expert marksman. Is a firing squad too harsh? What if the shots do not immediately hit the target, or the inmate does not die instantly? Just how many persons should be shooting and how many times?

I believe one answer to your question, bottom line, is whether a firing squad is sufficiently certain to be quick and effective. Enthusiasm for the death penalty, however, seems to be waning, at least here in California.

Q: What is the rationale for the death penalty? What is going on with it here in California?

K.L., Van Nuys

A: “An eye for an eye” is a common phrase. If a person injures someone else, they should be punished similarly. The rationale is that certain conduct is so heinous (for example, murder of a police officer) that a person should lose their life for committing that crime.

As of last year, 27 states (and the U.S. military) authorize the death penalty. Research indicates the death penalty no longer has majority support in California. Back in 2014, a federal judge ruled that the California death penalty system is unconstitutional because it is arbitrary and plagued with delay. California has not executed a prisoner since 2006. In March 2019, Gov. Gavin Newsom issued an executive order that placed a moratorium on carrying out the death penalty, and California’s lethal injection protocol was repealed. As far as I can presently tell, there is not much movement in regard to developing a new protocol.

Ron Sokol has been a practicing attorney for over 35 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional. 

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Source: Orange County Register

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