With execution methods coming under intense scrutiny in recent months, Federal Judge Alex Kozinski has a modest proposal: Bring back the guillotine. Or maybe the firing squad.
"If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution,” Kozinski, a federal judge on the Ninth Circuit Court of Appeals, wrote in a dissent released Monday.
Kozinski was dissenting from a decision made by the Ninth Circuit against reevaluating a reversal of a lower court ruling. The court had dismissed Arizona death row inmate Joseph Wood’s lawsuit seeking information about the drug cocktail to be used in his execution. Rather than simply dissenting from the majority decision, Kozinski’s dissent considered alternative death penalty methods and criticized the use of lethal drugs as a misguided attempt to make executions seem humane.
"If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all."'
“If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf," he wrote, adding that “the guillotine is probably best but seems inconsistent with our national ethos.”
“And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all," he wrote.
Arizona was set to execute Wood, who was convicted for killing his girlfriend and her father in 1989, on Wednesday. In June, after the state withheld information about the manufacturers of the lethal drugs to be used in Wood’s execution, and the qualifications of the individuals assigned to administer them, Wood and five other prisoners filed suit alleging that the state had violated their First Amendment rights. Wood is also arguing in a separate proceeding that the attorney who represented him during sentencing failed to present evidence of mental illness, including brain damage. The ruling prevents the state from carrying out the execution.
"One of the things we looked at was the transparency of the execution process. We requested information about the manufacturers of the drugs as well as the qualifications of the people who were going to be carrying out the execution," said Dale Baich, the attorney who began representing Wood eight weeks ago. "The state did not provide the information to us, and we believe Mr. Wood has a First Amendment right to this information." Arizona could ask the Supreme Court to intervene, or it could try to prevail against Wood on the merits.
Activists opposed to the death penalty have had success in targeting the manufacturers of drugs used in executions, which is one reason why states want to keep them secret. Lethal injections have come under increased scrutiny and criticism since the botched execution of Clayton Lockett in Oklahoma in April.
A lower court judge dismissed Wood's claim, but he appealed to the Ninth Circuit. A three judge panel reversed that ruling and said Wood's claim could proceed without ruling on the merits. Judge Jay Bybee, known for his authorship of Bush-era memos justifying the use of torture against suspected terrorists, dissented, writing that "the First Amendment has been co-opted as the latest tool in this court’s ongoing effort to bar the State from lawfully imposing the death penalty."
Arizona sought to have the Ninth Circuit rehear the case and possibly overrule the three judge panel, but on Monday that request was denied. That's when Kozinski, dissenting from the decision not to rehear the case, issued his dissent discussing alternatives to lethal injection.
"Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments," Kozinski wrote. "But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it.”
Kozinski is known as an eccentric judge. In 2008, Los Angeles Times reporters found him posting sexually explicit material on his website while presiding over an obscenity case. The material included "a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal."
"Kozinski has always been a judge willing to push the boundaries. He'll say things others are thinking but are afraid to admit," said Adam Winkler, a law professor at UCLA. "Whether one agrees with his endorsement of firing lines, he's making an important point. We keep the death penalty, but try to mask it's brutality."
When it comes to the death penalty, there's no reason to believe the almost Jonathan Swift-like tone of his dissent is meant in jest. As Emily Bazelon noted in a lengthy profile, Kozinski is a supporter of the death penalty, writing in 1997 that "Whatever qualms I had about the efficacy or the morality of the death penalty were drowned out by the pitiful cries of the victims screaming from between the lines of the dry legal prose."
Asked what he thought of Kozinski's dissent, Baich said, "I'm not going to comment on that.”