A Blast from the Past: Capital Punishment 1890s Style

The execution of William Kemmler, 1890.

Firing squads are almost on the books again in several states. Bills to allow the use of firing squads in select cases are making their way through Utah and Wyoming legislatures, and lawmakers are considering similar options in Arkansas. In Oklahoma, legislators are considering a bill that would legalize the use of nitrogen gas for executing inmates.

The usual method of execution in states where capital punishment is legal is lethal injection. In 2011, however, the European Union stopped exporting sodium thiopental, one of three drugs essential to the lethal injection cocktail, on moral grounds. The same year, Hospira, the only US company authorized to manufacture sodium thiopental, shut down its production of the drug for the same reason.

As supplies of sodium thiopental dwindle, states have experimented with other drug combinations. This was most notably apparent with the botched execution of Clayton Lockett on April 29th, 2014 in Oklahoma.

Ten minutes after injecting Lockett with the substitute drug, doctors declared him unconscious and the other drugs were injected. Sometime after this, Lockett raised his head and said, “Oh man,” “I’m not…” and reportedly, “something’s wrong.” He began to writhe and at one point attempted to rise from the table. Thirty-three minutes into the procedure, the execution was halted. Ten minutes after that, Lockett died of a heart attack, after forty-three minutes of presumable agony.

Following this and multiple other high-profile botched executions, states have decided to turn to other methods instead. Laws legalizing the firing squad, gas chambers or the electric chair usually contain a statement indicating the methods will only be used in certain circumstances – if the drugs required for injection aren’t available a month before planned date of execution, or if lethal injection is declared unconstitutional. Given that suitable drugs are becoming harder and harder to find, it seems that reliance on these secondary procedures will be a pretty frequent occurrence.

The firing squad and the electric chair seem to be the methods of choice. Firing squads are already legal as a secondary means of execution in Oklahoma, and Utah, Wyoming and Arkansas may soon join the “Sooner State.”

One of the greatest issues with firing squads is the moral burden on the shooters themselves. Common procedure is to have one of the (usually five) rifles used have no bullet – this is sometimes called a “conscience round.” In the 2010 execution of Ronnie Lee Gardner, that blank was replaced with a wax bullet to increase the recoil and make it nearly impossible for the shooter to know whether or not he fired a fatal shot.

Other methods to preserve the psyches of the members of the firing squad include blindfolding the target or otherwise preventing them from knowing their killers’ identities. In the case of Gardner, the shooters were placed in a dark area and bright lights were focused on Gardner, effectively blinding him.

Another common complaint with firing squads is the media attention they attract. Because of the large amount of criticism that accompanies them, executions by firing squad often find themselves in the world’s spotlight. This creates too much fame and pity for the criminal – allowing them to “go out in a blaze of glory” – and erases the victims from the narrative.

I would also argue that the use of firing squads is unconstitutional, as it violates the 8th amendment, which prohibits “cruel and unusual punishment.” While previous cases before the Supreme Court on this subject have not ruled that way, the 8th amendment is subject to “evolving standards of decency” – this means that what is and isn’t constitutional under this amendment changes over time. It is my firm belief – and that of the ACLU – that firing squads now contravenes the 8th amendment. This issue will almost certainly be brought up in courts if firing squads were to return to the limelight.

The other primary substitute for lethal injections is electrocution. Inmates on death row in Alabama, Florida, South Carolina, Kentucky and Virginia can currently choose to be executed by electrocution rather than by lethal injection. The constitutionality of electrocution is constantly under debate, and hasn’t been visited by the Supreme Court in any meaningful way since In re Kemmler, a case from 1890 before the electric chair had ever been used.

There are numerous cases of botched executions with the electric chair, but none more infamous than the execution of John Louis Evans. The chair used to electrocute Evans in 1983 was constructed by an inmate in 1927 and named “Yellow Mama” for its yellow coat of paint. At 8:30pm on June 22nd, 1,900 volts of electricity were administered to Evans for a thirty second period. Despite one of the electrodes bursting off of his leg, he was not dead when it was over. The electrode was refastened and a second identical jolt of electricity was put through Evans. After this failed to kill him, the prison commissioner asked then-Governor George Wallace over the phone for clemency. The Governor denied the request, and Evans was jolted a third and fatal time. All told, it took fourteen minutes to kill John Louis Evans.

This is the method that many states may turn to if lethal injections are rendered unconstitutional or practically impossible to carry out. The other, the firing squad, is little better. I asked Kirk Bloodsworth what he thought of reverting to these old means of execution when he spoke at Amherst last week. Bloodsworth was the first man to be exonerated from death row on the basis of DNA evidence, and has spent his life campaigning to end the practice that nearly killed him and one hundred and forty-nine other innocent people.

“I mean come on, we can’t go back,” he said. “The death penalty has to go. That’s the only thing that needs to die.”