Updated:
Original:

Killing Them Softly With Utah’s Guns

The Utah legislature has voted to reinstate the firing squad as a means for carrying out the death penalty.

The Utah legislature has voted to reinstate the firing squad as a means for carrying out the death penalty in the last state to abolish the firing squad, which Utah did in 2004. Utah’s action is the latest symptom of capital punishment’s medicalization coming undone.

Lethal injection had made the execution process the same as is common for putting down a beloved but terminally ill pet and the apparently peaceful passing has a lot to recommend it over the frantic and expensive attempts to stave off the inevitable that are the normal American way of dying. The medical profession has objected to being drafted to kill from the beginning, and allied professions have lined up behind the doctors.

Any doctor who participates in a governmental killing violates the oath attributed to Hippocrates, revered as the father of western medicine, primum non nocere. “First, do no harm” was traditionally rendered in Latin, which is ahistorical. The original oath was written in Greek and did not contain the phrase at all.

Still, the traditional form of the Hippocratic Oath is a guiding principle in modern medical practice that was rescued from a trend toward disuse when doctors in Hitler’s Third Reich did not take the oath and were shown to have participated in terrible atrocities on behalf of the Nazi state, up to and including the vivisection of human beings, usually Jewish.

The ethical imperative to refuse the executioner’s role has spread to the nursing profession and, belatedly, to pharmacists, whose Code of Ethics admonishes them to place “concern for the well-being of the patient at the center of professional practice” and to be “dedicated to protecting the dignity of the patient.”

The retreat of medical professionals from the process is, some say ironically, thwarting efforts to make executions more humane.

Because most manufacturers of drugs are transnational corporations and the U.S. stands outside an international consensus that the death penalty is barbarism, drug companies will not knowingly sell their wares to kill rather than to heal. Both the UK and the European Union have banned export of drugs for the purpose of capital punishment. The result is a nationwide shortage of the chemicals commonly used for lethal injection.

Efforts to expand the alternatives for a lethal but not painful drug cocktail have resulted in what amounts to medical experimentation on the occupants of death row. Last year was the worst in the history of lethal injections, with lengthy and apparently painful results in Ohio, Arizona, and Oklahoma.

The Utah legislature has enabled a return to the firing squad if Utah runs out of execution drugs. Before the trend to make execution appear to be a medical procedure, Utah allowed the condemned to choose hanging, firing squad, or decapitation.

The last hanging was in 1958. Condemned persons usually chose the firing squad before lethal injection. Shooting was pretty reliable save for the botched execution of Wallace Wilkerson in 1879. They missed his heart and he took 27 minutes to bleed to death.

The beginning of Utah’s colorful history with capital punishment illustrates a major objection to the penalty, that it most often falls upon classes of people at the bottom of the power structure. In Utah, “land of the Utes,” that has been Indians.

The very first recorded execution by the political entity called Utah happened in 1850, the same year the Utah Territory was organized. A Ute called Patsowits was executed by garrote. It seems unlikely that Utah created a garrote machine like the one used for many years in Spain to kill one Indian, so Patsowits was probably killed by a rope around his neck tightened by a stick. It is unclear how this method came to be used because the law of Utah Territory provided a choice for the condemned between hanging and the firing squad.

The second and third individuals executed by Utah were also Indians, Antelope and Long Hair, who were hanged. It’s rational to ask whether Antelope and Long Hair were given the option in Utah law, because, over the years, the preference for firing squad is clear. There were 38 shootings and only six hangings before the penalty went on legal hiatus between 1972 and 1976. A botched hanging results in slow strangulation if the drop is too short or decapitation if the drop is too long.

Decapitation was also an option between 1851 and 1888 but no condemned person chose to lose his head. No woman has ever been executed in Utah, reflecting a common U.S. bias toward state killing of nonwhite males. It would not take many dead Indians to show bias in a state where the population is 98 percent white and Indians outnumber blacks almost two to one.

The lack of women in the body count may be a reflection of a state justice system still dominated by the Church of Jesus Christ of Latter-day Saints. Fordham University law professor Deborah Denno commented to The Christian Science Monitor on decapitation and shooting in Utah history, “The Mormons believed that shedding of blood is a marker of protection of sort of religious redemption, so you had the firing squad and guillotine for that reason – it’s very much a Mormon influence.”

The death penalty’s national hiatus ended very publicly on January 17, 1977 with the shooting of Gary Gilmore, who was a “volunteer” in that he halted his appeals and submitted to being killed. Gilmore’s shooting created legal precedents that have paved the way for other “volunteers” by denying standing to anti-death penalty organizations and activists. The process that ended Gilmore’s life was chronicled in Norman Mailer’s Pulitzer Prize winning book, The Executioner’s Song.

Utah’s return to the firing squad reflects a general disenchantment with lethal injection. Arkansas is considering a turn to firing squads and Tennessee has brought back the electric chair. The most innovative idea has come from the location of one of the most horribly botched lethal injections, Oklahoma. The proposal is nitrogen hypoxia, a method that would avoid the dangers of using a gas chamber containing hydrogen cyanide.

Once more, though, Oklahoma would be conducting a medical experiment on living humans with which the medical profession will not cooperate. Dr. Joel Zivot of the Emory University School of Medicine told HuffPost that no doctor may conduct experiments and there’s no medical literature on the method because, “There’s no therapeutic use of nitrogen gas, and there’s no way to ethically or practically test if nitrogen gas is a humane alternative."

The United States and the several states keep running up against the reality that most of the world considers the death penalty to be barbarism, with only 18 percent of nations maintaining state killing in both law and practice. All of the routinely killing governments are in Asia or Africa and most are Muslim. All nations on the North and South American continents have abolished the death penalty either by law or by practice. The last execution on those two continents was by Guatemala in 2000.

The only American Indian nation to opt into the federal death penalty is the Sac and Fox. The other tribal governments may be driven by general opposition or by the historical fact that Indians, now less than one percent of the population, represent 19 percent of all persons executed by the federal government, part of the 61 percent who were nonwhite. The first Indian legally executed by the colonists was Nepauduck, who was beheaded in 1639. The first Indian woman was Waisoiusksquaw, who was hanged in 1711.

Since Utah shot Gary Gilmore in 1977, 144 persons have been released from death row after being shown to be not guilty, a fact that might also have motivated tribal governments to stand clear of the federal death penalty. Tribal governments staying away from the death penalty is understandable in light of historical Indian executions, including the first three persons killed by Utah.

Utah’s reasons for returning to the firing squad are understandable in light of the modern trend away from state killing and the medical profession’s refusal to participate. It’s always hard to swim against the current.