The Firing Squad as a 'Known and Available Alternative Method of Execution' Post-Glossip

Abstract

In Glossip v. Gross, the United States Supreme Court’s most recent effort to review a state’s lethal injection protocol, the Court affirmed Oklahoma’s use of a drug called midazolam and also stressed that petitioners had failed to “identify a known and available alternative method of execution that entails a lesser risk of pain.” This Article proposes that the Glossip Court’s “known and available alternative method of execution” requirement, however objectionable, adds another dimension to execution method challenges that attorneys must address. As Justice Sonia Sotomayor’s dissent in Glossip notes, the requirement also strengthens the viability and suitability of the firing squad as an appropriate means of execution. For example, the firing squad has a long history and world-wide application, making it a “known” method; it is also an easily “available” method, given the pervasive use of firearms in our society for purposes such as law enforcement and self-protection. There is also ample evidence suggesting that the firing squad is currently the most humane and reliable method of execution and that it meets the “lesser risk of pain” standard. Indeed, the primary hurdle faced by advocates of the firing squad is the method’s “primitive” or “violent” image. Yet this Article contends that there is no evidence that such an image is deserved, quite the contrary. Witnesses to modern firing squad executions describe a process that may be far more sterile in perception and procedure than lethal injection — a viewpoint that may come to be shared by the public and prisoners alike. In Glossip, Justice Sotomayor’s dissent briefly yet convincingly touches on reasons why death row inmates may prefer the firing squad over lethal injection, marking the first time that a Justice proactively and favorably compared the firing squad — or any other execution method — to lethal injection. Such practicality may with time trump perceived barbarity in favor of the firing squad as states are increasingly unable to obtain acceptable lethal injection drugs.

Keywords: death penalty, firing squad, execution methods, Eighth Amendment, Supreme Court