Fordham Law

Utah convict's choice of firing squad focuses spotlight on death penalty

Deborah W. Denno in The Kansas City Star, June 16, 2010

Media Source

The Kansas City Star

Ronnie Lee Gardner used a gun to end a man’s life in a botched courthouse escape attempt.

Now the condemned prisoner has chosen to die by gunfire, too.

He is scheduled to be executed Friday by a firing squad, an anachronistic tradition offered by the state of Utah as an alternative to lethal injection. It’s been 14 years since a Utah death row inmate chose the firing squad option, and Gardner’s decision has thrust him into the international spotlight.

Could the same spectacle be repeated in Kansas or Missouri?

No and yes, possibly.

In Kansas and most other capital punishment states, lethal injection is the sole method of execution.

But Missouri is among a handful of states that — at least on paper — offer alternatives. Missouri law authorizes death by either lethal injection or the gas chamber, a method the state last employed in 1965.

However, Missouri no longer has a functioning gas chamber. And prison officials say that, unlike Utah, the decision on what method to use belongs to the Department of Corrections and not the inmate.

What if a condemned inmate tried to pick the gas chamber?

“They would get lethal injection,” said Jacqueline Lapine, public information officer for the Missouri Department of Corrections.

But some national death penalty experts say Missouri’s law is unclear on that point and no inmate has pushed the issue.

“The statute on executions doesn’t specify who makes the choice between lethal injection and lethal gas,” said Richard Dieter, executive director of the Death Penalty Information Center. “So, an inmate might assert a right to choose in a motion to the court.”

Though a court might find that the statute’s intention was to give discretion to the warden, based on other parts of the statute, it’s possible a judge would rule otherwise, he said.

Deborah Denno, a professor at Fordham University Law School who has studied Missouri’s statute, agreed that it is vague. “Given that the statute is unclear, they should either have a gas chamber or the legislature should change the law,” Denno said.

Missouri built its gas chamber on state penitentiary grounds in Jefferson City in 1937. Between 1938 and 1965, authorities used the chamber to execute 38 men and one woman.

A 1972 U.S. Supreme Court ruling halted capital punishment in the country for a number of years. Missouri did not execute another prisoner until 1989, when George “Tiny” Mercer became the first in the state killed by lethal injection.

As preparations were being made to execute Mercer, prison officials tested the old gas chamber by setting off a smoke grenade inside. The chamber leaked badly, prompting the corrections officials to develop the lethal injection procedure instead.

Since then, there have been 66 lethal injection executions in Missouri.

Even if a prisoner did have a choice, some experts say it’s hard to imagine why they would opt for the vicious suffocation by poison gas over the quiet drift into death afforded by lethal injection.

“I don’t really see that as a viable possibility,” said veteran capital punishment litigator Sean O’Brien, an associate professor at the UMKC Law School.

But as Gardner, whose execution is scheduled for Friday, demonstrates, some inmates are willing to choose less humane methods of death.

Two men in recent years, including a prisoner in Virginia earlier this spring, have elected to be put to death by the electric chair, which by all accounts is a gruesome and violent means of demise.

Part of that may be because of concerns raised in recent years about the possible risk of pain during the lethal injection process.

Dieter, from the Death Penalty Information Center, thinks part of it may have to do with a prisoner exercising the little bit of control he has over his own fate. “Plus it gives them a chance to put the state in an embarrassing light,” he said.

The last man in Utah to elect to die by firing squad in 1996 was quoted as saying he wanted to make a statement that the state was sanctioning murder.

Gardner has not said what his motivation is, but his attorney said he is not trying to make any kind of statement.

“It’s not about the publicity, he just prefers it,” said Andrew Parnes.

If Gardner were to be executed by lethal injection, it would have gotten little notice outside Utah, but Dieter said he has been getting calls from media around the world. Although Utah changed its law in 2004 to do away with the firing squad as an option, Gardner still had the choice because he was sentenced to death before the law changed.

“It will have a big ripple effect in the public,” Dieter said. “Utah will be known as the state that carried out an execution by firing squad.”