Friday, March 27, 2015

The Fifth Bullet

When Utah resumes executing condemned prisoners by firing squad, four of the five rifles will each be loaded with a single live bullet. But not the fifth rifle. One rifle will hold a special bullet— an “ineffective” round which, unlike a blank, has the same recoil as a live round. Its purpose is to allow each shooter to be able to believe he might not have fired the fatal shot.


Unlike jury duty, no one is forced to serve on a firing squad. One must volunteer. The shooters must want to kill someone. So why the psychological escape hatch?

The reason for the fifth bullet is to instill doubt. It leaves open the door of conscience, by a crack. But why should a volunteer marksman carrying out a lawful execution of a convicted criminal have a guilty conscience? Is he not merely administering justice in a lawful manner? The citizens of the jury returned a death verdict under the auspices of a judge; the legislature enacted the prescribed method of execution;  the court held it constitutional; and the governor refused to stay the execution. Thus, the people and all three branches of government – judicial, legislative, and executive – have spoken. So why should any rifleman feel guilt over executing the law… or a fellow human?

Perhaps, the fifth bullet is a tacit recognition – or admission – that there is something to feel guilty about. Guilt is the emotion we punish ourselves with when we have done something wrong. Something morally wrong, even if not legally wrong. Because deep down, we all know being Swiss-cheesed with bullet holes is not how any of us wants to die. It sounds horrible. Some might even call it cruel and unusual punishment.

Throughout history, many nations have executed their criminals... and also their political dissenters, oppressed minorities, and innocent men wrongfully declared guilty. But I won’t digress to discuss totalitarian justice, or lynchings in the Wild West or the backwoods of Mississippi, or those poor souls unfortunate enough to be saddled with a bad lawyer or an even worse jury. No, lets stick to the scum who deserve to die. How can we, as a civilized society, end their lives in a manner that conforms with our constitutional values – in other words, in a way that is not cruel and unusual punishment?

I think we can all agree that crucifixion, disembowelment, drawing and quartering, keelhauling, impalement, flaying, boiling, and death by torture all qualify as cruel and unusual punishment. What’s left? America has used the electric chair, the firing squad, the gas chamber, hanging, and lethal injection. None of them sound particularly pleasant. Admittedly, punishment is not supposed to be pleasant, but neither should it be gruesome. Saudi Arabia carries out executions by beheading. France was infamous for the guillotine. Stoning is currently a preferred method of execution under Sharia law in Brunei, Pakistan, Sudan, Somalia, and the United Arab Emirates. While all of the above forms of execution are cruel, they are obviously not unusual, so I suppose they would pass constitutional muster under the Eighth Amendment.

Still, they all seem wrong on some level, whether immoral or gruesome. Ever wonder why executioners either wear hoods or place them over the people they kill? Is it because they don’t want anyone to know who they are, or because they can’t look those they kill in the eye? The truth is, there is no good way to kill someone. It will always be messy and painful. But then, that’s the whole idea of execution: it’s supposed to act as a deterrent to others who contemplate the same act as the condemned. There will always be individuals who commit acts so heinous that they must be permanently removed from society. The death penalty is a cruel punishment; and it is also a necessary one in certain cases. Every society faces a choice: either accept that the death penalty is a cruel but necessary means of eliminating those who pose a threat to its members, or recognize that the guilt associated with carrying it out is proof of its immorality. One cannot have it both ways; there can be no fifth bullet.

Friday, March 20, 2015

Ready. Aim. Fire.

Utah wants to bring back its firing squad as a means of executing condemned prisoners, so I felt it appropriate that I also resurrect something from that era. Below is an editorial I wrote in January 1977, in response to Utah’s execution of murderer Gary Gilmore. The execution was newsworthy because it was the first in nearly 10 years following a U.S. Supreme Court ruling that the death penalty did not violate the Eighth Amendment’s prohibition against “Cruel and unusual punishment”. Utah lawmakers voted to re-institute the firing squad because of the difficulty in procuring lethal injection drugs. So as Utah sharpshooters ready their rifles, journey back with me to this contemporaneous reflection of the last time they cried, “Ready, Aim, Fire”:

By Keith Darrell  (originally published in The Phoenix, January 28, 1977)

Well, we've finally done it. American society has sunk to its lowest depths. In our continuing effort to make a mockery out of politics, political office, liberty, and justice, we have claimed another victim — the myth of a dignified death.

On January 17, 1977, Gary Mark Gilmore was executed by a firing squad — the first U.S. execution in 10 years. We do not want to glorify Gilmore. Gilmore cold-bloodedly murdered two men and freely admitted he would have continued his killing spree had he not been caught.

But even more cold-blooded acts were committed by the public, the press, and individuals, in response to Gilmore's impending execution. When Gilmore was selected to become the first man to be executed since the U.S. Supreme Court decision that the death penalty does not violate the Eighth Amendment's prohibition against "cruel and unusual punishment," a bloodthirsty public cried out for his death. But Gilmore surprised them — he agreed with their assessment of his guilt and their prescribed punishment.

Excited reporters immediately jumped on this. It was the legendary case of 'Man bites dog.' A man who wants to be executed! Gilmore made the network news every night and his two suicide attempts managed to bump every other story out of the headlines. Then the press began to glorify Gilmore — not Bennie Bushnell — not Max David Jensen — Gilmore's victims. Victims make poor heroes.

But martyrs don't. And Gilmore was martyrized. Every concerned citizen and organization rallied to his cause. But his cause was a death wish! "Oh, shut-up, Gary. We know what's good for you," they responded. His court-appointed lawyers tried to get him an appeal; he fired them. The American Civil Liberties Union was determined to save him; he denounced them. But Gary found a friend in neo-journalist Lawrence Schiller, who paid $1,000 for the rights to Gilmore. You see, Gilmore is a very marketable commodity. The rights to Gilmore include 16 taped conversations with the condemned man— later to be transformed into a Playboy magazine interview, books, movies, and Gilmore T-shirts. "The Gary Gilmore Story," or whatever they call the movie, will tell how Gilmore spent more of his life in prison with hardened criminals than outside in "decent" society. What can we infer from a criminal justice system that forces first-time offenders in with hardened criminals, and then when it fails to rehabilitate them due in part to its own structure, sentences them to be executed?

The thought of impending death is horrible enough, but in Gilmore's case, after he had resigned himself to his fate, he was tortured by constant appeals — that is the true "cruel and unusual punishment." Gilmore had accepted his sentence, which he undoubtedly deserved — he asked only for a dignified death. But society was not ready to give it to him.

The cameras whirred as four bullets sliced through Gilmore's heart. The film of the execution was cut up, as was Gilmore's body (he had willed his organs to a local hospital). It was over. Now the nation must begin its long wait for the movie.

*   *   *   *

The nation did not have long to wait. "The Executioner's Song", a made-for-TV movie adaptation of Norman Mailer's 1979 eponymous book was broadcast in 1982. The film was directed by Lawrence Schiller who, as my 1977 editorial noted, had purchased the rights to Gilmore for $1,000. I guess he got a good return on his investment.


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