Cleveland State Law Review Volume 50 Issue 3 Article 3 2003 Nothing Less than the Dignity of Man: Evolving Standards, Botched Executions and Utah's Controversial Use of the Firing Squad Christopher Q. Cutler Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the Criminal Law Commons, and the Criminal Procedure Commons How does access to this work benefit ou?y Let us know! Recommended Citation Christopher Q. Culter, Nothing Less than the Dignity of Man: Evolving Standards, Botched Executions and Utah's Controversial Use of the Firing Squad, 50 Clev. St. L. Rev. 335 (2002-2003) This Article is brought to you for free and open access by the Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact [email protected]. NOTHING LESS THAN THE DIGNITY OF MAN: EVOLVING STANDARDS, BOTCHED EXECUTIONS AND UTAH’S CONTROVERSIAL USE OF THE FIRING SQUAD CHRISTOPHER Q. CUTLER1 Human justice is sadly lacking in consolation; it can only shed blood for blood. But we mustn’t ask that it do more than it can.2 I. INTRODUCTION .................................................................... 336 II. HISTORICAL USE OF UTAH’S FIRING SQUAD........................ 338 A. The Firing Squad from Wilderness to Statehood ................................................................. 339 B. From Statehood to Furman ......................................... 347 1. Gary Gilmore to the Present Death Row Crowd ................................................ 357 2. Modern Firing Squad Procedure .......................... 363 III. EIGHTH AMENDMENT JURISPRUDENCE ................................ 365 A. A History of Pain ......................................................... 366 B. Early Supreme Court Cases......................................... 368 C. Evolving Standards of Decency and the Dignity of Man................................................ 373 D. Current Eighth Amendment Methodology................... 377 1. Evolving Standards of Decency ........................... 379 a. Historical Review .......................................... 380 b. Legislation..................................................... 381 c. Juries ............................................................. 383 d. Other Indicia ................................................. 385 2. The Dignity of Man .............................................. 387 E. Choice-of-Execution Statutes....................................... 389 IV. CONSTITUTIONALITY OF THE FIRING SQUAD ....................... 397 A. Decency........................................................................ 397 1. History .................................................................. 398 2. Legislative Action ................................................ 401 3. Jury ....................................................................... 404 1Mr. Cutler graduated from J. Reuben Clark School of Law at Brigham Young University. Currently, Mr. Cutler resides in Houston, Texas. Mr. Cutler expresses his thanks to those who aided in the preparation and publication of this article. 2 ALEXANDRE DUMAS, THE COUNT OF MONTE CRISTO 115 (Bantan Books ed. 1981) (1846). 335 Published by EngagedScholarship@CSU, 2003 1 336 CLEVELAND STATE LAW REVIEW [Vol. 50:335 4. Other Factors ........................................................ 405 a. International Community .............................. 405 b. Professional and Religious Organizations................................................ 408 c. Prosecutorial Discretion ............................... 409 d. Polls............................................................... 410 5. Synthesis of the Evolving Standards .................... 411 B. Dignity ......................................................................... 412 1. Excessiveness ....................................................... 412 2. Nexus.................................................................... 414 3. Individual View of Dignity .................................. 415 a. Of the Executed ............................................. 419 b. Of the Executioner......................................... 421 c. Of the Enabler ............................................... 422 V. CONCLUSIONS AND REFLECTIONS........................................ 423 I. INTRODUCTION No trip to London would be complete without paying a visit to Madame Tussaud’s Wax Museum. After purchasing tickets, the visitors are ushered into an elevator that ascends to the top floor. There, they are greeted by hundreds of life-like reproductions of the famous and the infamous, the celebrated and condemned. At Madame Tussaud’s, history finds itself enveloped in wax. Descending from the top floor, a veritable history lesson enfolds, with the people who defined world history enshrined in cold reproduction. Finally, one arrives at the museum’s basement. There, suitably, is the chamber of horrors. Entering the chamber of horrors, the squeamish are given fair warning. And such warning is clearly understated. The chamber is a shrine to the macabre. Relics from the French Revolution spark the imagination–repulsion grows in the pit of the stomach when staring at the blade that sliced through Marie Antoinette’s neck. The cold steel of the guillotine is joined by bloody recreations of Jack the Ripper’s nightly adventures and Charles Manson’s family outings. There, among the grizzly and the damned, is a reenactment of an execution so influential as to warrant a place in horror’s hall of fame. Thousands of spectators each year watch as the wax likeness of Gary Gilmore is shot in the heart. In 1978, four shots in Utah were heard “round the world.” After a decade-long silence, Utah ushered in the modern death penalty era by firing squad. The resumption of executions garnered considerable international attention. Gilmore’s execution became a world sideshow attraction, not only for its distinction as the first execution in the United States in over a decade, but several other factors also made the execution notorious. Aside from its significance as the first post-Furman execution, the method of Gilmore’s death fascinated the world. Madame Tussaud and the world obsessed with Gilmore’s killing because the State of Utah tore into his flesh with bullets, spilling his blood on the ground. In the history of this nation, the tools placed before the executioner have rarely been so uniform. Due to statutory revision and public outcry, the predominant– nearly exclusive–manner of killing is that referred to by the condemned as the https://engagedscholarship.csuohio.edu/clevstlrev/vol50/iss3/3 2 2002-03] NOTHING LESS THAN THE DIGNITY OF MAN 337 “ultimate high.”3 Lethal injection has become the modern guillotine, accepted by the populace as the “humane” manner by which the State may lawfully extinguish life. Today potassium chloride lubricates the death machine. Despite an increasingly successful movement, particularly in the southern “death-belt” states,4 to curtail the use of the electric chair and the gas chamber, some states still maintain an alternative to lethal injection, though most remain unused. While not predominant in controversy, Utah’s use of the firing squad continues to incite commotion. In 1608, the first recorded execution in the American colonies occurred. George Kendall, one of the original councillors of the Virginia colony, became the nation’s first firing-squad victim for plotting to betray the colony to Spain. Since then, 143 people have been killed by American firing squads.5 Many firing squad executions arose during colonial days or during periods of territorial governance. Currently, three States allow for execution by firing squad: Utah,6 Idaho,7 and Oklahoma.8 Idaho and Oklahoma maintain the firing squad option as an alternative if lethal injection were ruled unconstitutional or became impracticable.9 Utah is the only State that actively executes by firing squad. 3 See JAMES A. INCIARDI, CRIMINAL JUSTICE 503 (3d ed. 1990). 4Of the 711 executions in the United States between 1976 and 2001, 579 occurred in the South. See Nancy Benac, A Profile of the Nation=s Executed: Poor, White Southern Dropouts, HOUSTON CHRONICLE May 8, 2001, at A4. Of those executed in the South, 246 of the executions occurred in Texas. See id. In 2001, 79% of all executions occurred in the South. See Death Penalty Information Center, available at www.deathpenaltyinfo.org/ YearEndReport2001.pdf (last visited Oct. 8, 2003). 5 See M. WATT ESPY AND JOHN ORTIZ SMYKLA, EXECUTIONS IN THE UNITED STATES: 1608- 1987 (1987) (hereinafter “Espy file”). The Espy file data counts those firing squad executions in the Colonies, the territories, and the States. Since the creation of the Espy file, Utah executed John Albert Taylor by firing squad. There have also been many military firing squads in our Nation=s history that are not included in the Espy file data. For instance, at least 185 men were executed by firing squad during the Civil War. 6 See UTAH CODE ANN. ' 77-18-5.5 (West 1999). 7 See IDAHO CODE ' 19-2716 (Michie 1982). 8 See OKLA. STAT. ANN. Tit. 22 ' 1014. Also, any federal death sentence under the Federal Death Penalty Act of 1994 could result in an execution by firing squad if prosecuted in a jurisdiction allowing for that method. See Christopher Q. Cutler, Death Resurrected: The Reimplementation of the Federal Death Penalty, 23 SEATTLE U. L. REV. 1189, 1214 (2000). 9Idaho