Mississippi Law Would Revive Firing Squad Executions

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By Lance J. Rogers

April 1 — Mississippi may soon have the option of executing prisoners by firing squad if lethal injection drugs become unavailable under a bill that's working its way through the state Legislature.

Only two other states offer the firing squad option: Oklahoma and Utah.

A similar proposal to add death-by-firing-squad to the execution menu failed in Wyoming in 2015.

Humane or Barbaric?

Death penalty opponents are calling the firing squad proposal barbaric.

“I find it frankly disgusting that in the week we're commemorating the execution of Jesus of Nazareth, the Mississippi Legislature is so devoted to vengeance that they want to bring Mississippi back to the 19th century,” Jim Craig, co-director of the Roderick & Solange MacArthur Justice Center at New Orleans, said in a statement

But proponents of the measure say that the firing squad is an efficient and humane solution.

“It has been used for centuries and is one of the most efficient, effective and ‘humane' ways to execute a prisoner,” said Rep. Robert Foster (R), the state legislator who introduced the handwritten amendment.

Political Roadblocks

The problem with resurrecting the firing squad is both legal and political, Robert Dunham, executive director of the Death Penalty Information Center, told Bloomberg BNA.

Studies show that the majority of Americans don't think it's cruel and unusual to “put someone to sleep,” Dunham said. “But that support plummets when you talk about putting a bullet in someone's head.”

Shooting someone to death seems antiquated and savage and conjures images of totalitarian regimes, he added

Utah is the only state that has executed someone by firing squad over the last 40 years, Dunham said. The most recent execution came in 2010.

Dunham predicted that any efforts to resume using the firing squad will face daunting legal challenges that create as much controversy and delay as has the battle over lethal injection.

‘Fallback' Position

The Mississippi bill, SB 2237, began life in the state Senate and was originally designed to shield the identities of the people who take part in the executions, as well as the vendors who supply the lethal injection drugs.

It morphed into something bigger, however, when the bill reached the House and Foster tacked on the amendment allowing the state to resort to “death by firing squad” if the chemicals necessary for lethal injection become unavailable or too expensive. The proposal states that the decision to use a firing squad rests in the hands of the state attorney general and the department of corrections commissioner.

The proposal grew out of all the controversies surrounding execution protocol and the chemical mixtures used in the lethal injection cocktail, Foster said in a statement posted to his Facebook page.

Mississippi Attorney General Jim Hood (D) had previously urged state lawmakers to explore alternative means of execution, including nitrogen hypoxia, electrocution or firing squad.

The state needs a “fallback position” in the event that lethal injection is held unconstitutional, Hood explained at a Jan. 27 news conference

Governor Says He'll Sign the Bill

Mississippi Gov. Phil Bryant (R) said he would sign the bill if it crosses his desk.

“If the senate passes a firing squad bill, I’ll certainly sign it,” he said. “My belief is we need to carry out a capital punishment that when the courts say that it’s necessary and if it takes a firing squad we’ll do exactly that.”

Mississippi isn't the only state developing backup plans to cope with the shortage of lethal injection chemicals, Dunham said.

New Hampshire allows the state to hang prisoners if lethal injection drugs aren't viable. In Oklahoma, the gas chamber is an option and Tennessee designates electrocution as the backup.

Some states allow the inmate to choose between lethal injection and another method, such as electrocution , hanging or gas .

Other Developments

A lower court judge in Mississippi ruled in 2015 that the state department of corrections had to disclose information about its execution procedures and the name of the execution-drug supplier in response to a public records request filed by the Roderick & Solange MacArthur Justice Center.

The Mississippi Supreme Court heard arguments in that case on Nov. 17, 2015, but hasn't yet issued an opinion.

The Mississippi Department of Corrections has been under siege in federal court as well.

Most recently, the U.S. Court of Appeals for the Fifth Circuit in February overturned a lower court order that had enjoined the state from using “compounded pentobarbital” or midazolam in its execution protocol and required the state to submit any other proposed method of execution to the district court for approval.

The U.S. Supreme Court in 2015, by a narrow 5-4 vote, ruled in Glossip v. Gross, 2015 BL 206563 (U.S. 2015) , that Oklahoma's lethal-injection protocol—specifically the use of the controversial drug midazolam—doesn't violate the constitutional ban on cruel and unusual punishment.

The death of Justice Antonin Scalia, however, leaves the court divided evenly on the issue raised in that case, if not capital punishment in general.

In his dissent, Justice Stephen G. Breyer—joined by Justice Ruth Bader Ginsburg—called for renewal of the legal debate about the constitutionality of the death penalty itself and suggested that prevailing notions of what qualifies as “cruel and unusual” have evolved significantly since the justices revived the death penalty in Gregg v. Georgia, 428 U.S. 153 (1976).

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

A copy of the amended Mississippi bill is available at http://src.bna.com/dT9.