Bench Memos

Judge Kozinski on Death by Lethal Injection

Ninth Circuit chief judge Alex Kozinski, in dissent from the denial of rehearing en banc in Wood v. Ryan, opined that Arizona “should and will prevail” in its effort to carry out the death sentence. At the same time, he offered some noteworthy comments on why, in his judgment, execution by lethal injection is “an enterprise doomed to failure”:

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.… 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. 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.

After proposing firing squads as the “most promising” means of execution, Kozinski observed:

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.

I think that Kozinski’s observations deserve serious attention.

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