Ready, Aim, Fire! — Execution By Firing Squad Given A Shot

Asked to name current execution methods in the U.S., most citizens will cite either the electric chair or lethal injection. But a few states have turned to Door C–death by firing squad. And to no one’s surprise, death penalty opponents characterize this third method as unconstitutional cruel and unusual punishment. Should the old-time execution method of a firing squad be given a shot?

The question has come to a head in South Carolina where a death warrant for 57-year-old Richard Moore was issued. The set execution date of April 29th is on hold with the South Carolina Supreme Court approving a temporary stay of execution. Should the execution go forward in the intended manner, Moore would become the first inmate to be put to death by firing squad in that state. The proposed manner of his execution has become the target (pun intended) of death penalty protestors who’ve labeled this method as unconstitutional.

What does the Constitution have to do with executions, you ask? Six words in the Eighth Amendment, a part of the Bill of Rights which was ratified in 1791, come into play: “nor cruel or unusual punishments inflicted.” Firing squad opponents hang their arguments on these words to shoot down this execution method.

Unfortunately, the Founding Fathers didn’t provide a glossary behind the Constitution and its amendments, so it’s impossible to know exactly what they meant by either “cruel” or “unusual.” But whipping, stocks, and branding with a hot iron were in use during their time. The drafters of the Eight Amendment wanting to avoid the public shame and pain such punishments brought is a reasonable assumption with their use of the terms “cruel” and “unusual.”

Death by firing squad has been an accepted method for executions for quite some time, particularly for the military. It was deemed a fitting punishment for the offenses of treason, desertion, and mutiny, among others. Numerous soldiers were executed in this way during the Civil War. According to historians, 433 of the 573 soldiers executed in that time faced a firing squad. (Would this historical evidence be characterized as a “smoking gun?”)

The term “squad” is appropriate because more than one shooter is utilized, and all shooters fire simultaneously. Traditionally, not all the shooters are given live rounds, allowing them to preserve deniability for the death. In South Carolina, three shooters are used to execute the condemned, but all are provided weapons having live ammo. Squad members are volunteers from the Department of Corrections trained in the use of weapons. (Translate: Trained marksmen = less chance of botched execution.)

Forget the dramatic scenes from movies where the condemned stands in a field, is shot, and falls to the ground or in a pit or grave behind him which has already been dug. In South Carolina, the condemned is strapped into a metal firing squad chair in the “death chamber.” A metal chair sounds stark, but comfort really isn’t a concern at that point. A hood is placed over the condemned’s head, and a small “aim point” (perhaps an “X?”) is placed over his heart. The firing squad stands 15′ away behind a wall of the chamber and fire rifles through an aperture in that wall. Bulletproof glass in the chamber protects those witnessing the execution in an adjoining area.

Using a firing squad is cheaper than maintaining an electric chair or purchasing lethal drugs, but is this method “cruel?” Legal debates rage, but one U.S. Supreme Court Justice Sonia Sotomayer seems favorable to the method. She wrote in a 2017 opinion that “In addition to being more instant, death by shooting may also be comparatively painless.” Using “Old Sparky,” the nickname given most electric chairs, in contrast might be more painful with electricity surging through the condemned’s body.

Undoubtedly, the firing squad method reduces the time for suffering, assuming any occurs. The gunshot is delivered to a vital organ, i.e., the heart, bringing quick death. A doctor’s experiment during an execution of a Utah inmate in the 1930’s supports this conclusion. The prisoner allowed the doctor to hook him up to an electrocardiogram as he faced the firing squad. The device registered 15.6 seconds before his heart stopped after being shot. (NOTE: This is a fine example of multitasking–execution and science experiment rolled into one.)

A lethal injection, in contrast, takes several minutes for death to occur, and instances of botched executions in that manner have been reported. In 2014, an Oklahoma prisoner writhed, groaned, and convulsed for over forty minutes. While the man surely wanted to live longer, he certainly didn’t want to do so under excruciatingly painful circumstances.

Why a return to execution by firing now? One driving factor is the lack of availability of the drugs needed for a lethal injection. Typically, a three-drug cocktail is utilized for executions, and South Carolina hasn’t possessed a usable dose of lethal injection drugs since 2013. Lack of these drugs is attributable to drug companies’ reluctance to have their products used to kill people, leading to a shortage.

Because of this drug shortage, in May of 2021 South Carolina’s governor signed a bill into law which allowed inmates to choose their method of execution–firing squad or electric chair. Talk about picking your poison….South Carolina is one of a handful of states authorizing this execution method; the others are Mississippi, Oklahoma, and Utah.

But just because the method is authorized doesn’t mean that it’s being used. According to the nonprofit Death Penalty Information Center, only three executions in the U.S. have been carried out by firing squad since reinstatement of the death penalty nationally in 1976. And all three of those executions were conducted in Utah. Nevertheless, no firing squad executions have occurred in over a decade.

While the acceptability of using a firing squad in general may not be resolved immediately, the life of at least one condemned S. C. prisoner hangs in the balance now. Hopefully a quick resolution of his case will take place. To me, it is cruel and unusual to have the condemned remain in limbo for an extended time as to whether he will live or be executed no matter by what method.

WONDER-ing Woman:

Is it the method itself or simply the fact someone is being put to death that’s the crux of death penalty opponents’ objections? If you were to be executed, what method would you select–injection, electrocution, or shooting? Should all shooters in a firing squad be given live ammo or should one receive a non-lethal bullet?

Pardon Me!

If you’ve heard the words “Pardon me” in our nation’s capital recently, it’s likely the phrase had nothing to do with being polite. Instead it was a plea to keep the requestor out of the big house, and I’m not referring to the White House. I mean prison. With the Trump administration drawing to a close, folks were eager to receive a presidential pardon. But exactly what is such a pardon and how does one obtain one? I’ll pardon your ignorance if you don’t know and enlighten you.

Ignorance may be bliss, but it also doesn’t help anyone understand what is going on in current events. While fully comprehending what a coronavirus is and how to combat it requires some scientific background, presidential pardons aren’t as difficult to wrap your brain around. In fact, a citizen can readily grasp the concept and its parameters without being Albert Einstein. All it takes is a short civics lesson.

Everyone’s heard of the Constitution, right? Sure. That important document contains the basis for the power of a president to issue a pardon. Article II, Section 2, Clause 1 of the Constitution states, “The President…shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of impeachment.” Short and sweet, isn’t it? It’s a mere one sentence long with no mention of spike proteins and antibodies to confuse us.

This succinct constitutional provision answers some important questions, i.e., who, what, and when. The who is the President of the United States. What he can do is to grant pardons for federal offenses except in impeachment cases. When he can do that is while he is POTUS. That’s why there was a buzz of activity to seek pardons as 2020 wound down and Inauguration Day (Biden’s not Trump’s) approached. Once sworn in, Biden is POTUS and possesses the power to pardon.

Note that Article II, Section 2, Clause 1 gives the president virtually unlimited power to issue pardons. The only restrictions on his power are that he hold the office of POTUS, that he cannot pardon state offenses, and that he cannot pardon offenses in impeachment cases. He does not have to give a reason for granting a pardon, and his action is not reviewable by other branches of the government.

Just whose idea was it to allow POTUS to have such great power? Think Broadway. The answer is Alexander Hamilton, a Founding Father made even more famous by Lin Manuel-Miranda’s smash musical “Hamilton.” Hamilton pushed for this presidential power and even advocated for it in the Federalist Papers. Somehow this portion of Hamilton’s career failed to rate a song in “Hamilton.” One can only hope for a sequel to the play to address this oversight.

If someone is pardoned, the punishment for the federal crime is set aside. But POTUS simply granting a pardon isn’t all that is necessary for the punishment to be avoided. The person to whom the pardon is granted must accept the pardon. The U.S. Supreme Court decision in U.S. v. Wilson in 1833 ruled that a pardon can be rejected by a convict, and that a pardon must be affirmatively accepted for the courts to recognize it.

Why in the world would someone reject a pardon? One reason is that applying for and accepting a pardon is seen as an admission of guilt. While a pardon provides a get out of jail (or don’t go to jail) card, there is still a stain on the individual’s record of having acknowledged he did wrong.

A pardon may be granted before an individual has been found guilty or even charged with the commission of a crime. These types of pardons are known as presumptive pardons. For example, in September 1974, President Gerald Ford pardoned his predecessor, Richard Nixon, for any offenses connected to the Watergate scandal. At that point, Nixon (not so fondly known as Tricky Dick) had been accused of obstruction of justice, but he had yet to be charged.

Unresolved is whether a president can pardon himself. This issue has never been tested in the courts because, to date, no president has taken such action. That step was considered by Nixon’s lawyer and rumors swirled that President Trump might attempt that action, but no self-pardons materialized.

How does one request a pardon from POTUS? Applications for pardon must be submitted to the creatively named (NOT!) Office of the Pardon Attorney for review and recommendation as for the action to be taken. POTUS, of course, does not have to follow the recommendation of the OPA (Office of Pardon Attorney). He can also elect to pardon an individual on his own initiative. For example, on December 22, 2020, President Trump issued 20 pardons; of those pardons, only three were tied to petitions submitted to the OPA.

To no one’s surprise, presidential pardons are often controversial. Just two days before Christmas, POTUS delivered a very special present to two men to which he is connected. He pardoned Charles Kushner, his son-in-law’s father, and Paul Manafort, his former campaign manager. That wasn’t jingle bells these men heard but the sound of freedom from punishment.

But President Trump is hardly the only president to use his pardon power to take controversial actions. On his last day in office, President Jimmy Carter pardoned his own brother who was serving time for a federal drug-related offense. President Clinton pardoned billionaire tax evader and fugitive Marc Rich and his wife Denise, generous donors to Bill and Hillary. Boy did those donations ever pay off!

While President Trump issued a flurry of pardons before leaving office, including 52 on the day prior to Biden’s inauguration, he did not use the power excessively. Only 112 can be attributed to him. FDR, in contrast, issued the most pardons of any president–3,687. President Obama ranks #4 on the list of presidential pardons granted with 1,927.

Whether you agree with the existence of this presidential power or to whom the pardons are granted, having presidential pardons in the news is a positive thing. The topic provides Americans with the opportunity for a civics lesson. Even better, it offers something other than COVID and contested elections to hear about. Pardon me if I am thankful for that development!

Just WONDER-ing:

Is the presidential pardon power too broad? Does it pass the sniff test for presidents to pardon family members and political donors? Does it surprise you that Alexander Hamilton was the Founding Father who proposed the granting of this power?

Fun Constitutional History We The People Didn’t Learn In School

 

Americans are more likely to know that September 18th is National Cheeseburger Day than that September 17th is Constitution Day. Why is that? Because eating good food is enjoyable. History is perceived as dry and boring. But maybe we think of history that way because we didn’t learn all the facts. Let’s take a look at a few fun facts about the signing of the U.S. Constitution that we didn’t learn in school.

Politicians today cannot make the slightest move without it being all over the media. So were the media front and center at the Constitutional Convention of 1787? Nope. Delegates to the convention voted to keep their deliberations secret. Reporters and other visitors were barred from convention sessions. Eavesdropping wasn’t an option either. Windows at the convention hall were kept shut throughout the entire hot summer the convention took place.

OK, so the media was kept at bay, but certainly things were handled in a PC manner, right? Nope again. All 55 delegates to the Constitutional Convention were white and male. There were no women and no minorities among the delegates.

But back in the day, everyone got along, didn’t they? Certainly it wasn’t divisive and contentious like things are today. Wrong. Things haven’t changed much over the years. Rhode Island didn’t even send a delegate to the convention because it was opposed to overhauling the framework of the national government. Of the 55 delegates who did participate in the convention, only 39 of them actually signed the Constitution. While .710 is a great batting average for baseball, it was a far cry from unanimity among constitutional convention delegates.

One of the delegates to the Constitutional Convention and a signer of the document was beloved American historical figure Benjamin Franklin. Ben held an honorary position and rarely engaged in debate. Well, you have to give the guy a break. At over 80 years old, he was the oldest delegate in attendance. He was so infirm that he had to be carried to the convention sessions in a sedan chair.  Had Jimmy Carter been around then, he probably would’ve used poor old Ben as Exhibit A for Carter’s contention that 80 years old is too old for filling an important political position.

But not all the convention delegates were OLD, white men. One was a YOUNG white man. Jonathan Dayton of New Jersey, age 26, was the baby of the group. The remainder of the white male delegates averaged age 42.

Anyone who knows anything about U.S. history is aware that the U.S. Constitution is an important document. But how was that document produced? It was 1787, after all, so there were no computers, typewriters, or even fountain pens. The U.S. Constitution was produced the old fashioned way–it was handwritten.

Of course, the problem with handwritten papers is that sometimes they cannot be read. What a waste of time the Constitutional Convention would have been if all that was produced after meeting in Philadelphia from May 25th through September 17th was an illegible document. Riding in to save the day and win a penmanship award was Jacob Shallus. Mr. Shallus, the son of German immigrants who was employed by the Pennsylvania General Assembly as an assistant clerk, was hired to physically write the Constitution from drafts provided by the delegates. He was paid the handsome sum of $30 for his efforts in writing 4,543 words (less than a penny a word) on four sheets of parchment paper in two days’ time. Although Mr. Shallus had good handwriting, he wasn’t perfect. An errata paragraph was placed between the end of the articles and the delegates’ signature. These errors were mostly words or phrases left out. And for all his efforts, Mr. Shallus’ name appears nowhere on the document.

And exactly what did Mr. Shallus write 4,543 words on? Parchment paper with the dimensions of 28 3/4″ x 25 5/8″ was used to record these important words.Parchment is a general term for animal skin prepared for writing or printing; the animal skin is treated with lime and stretched. While parchment is expensive, it does last for a long time. The type of animal that gave its life for the production of the constitution is unknown; a calf, a goat, and a sheep are possibilities.

Mr. Shallus used a quill pen with which to write the 4,543 of the U.S. Constitution. A turkey or goose feather quill was likely utilized. (Thankfully, our national bird, the bald eagle, was spared the indignity of having a tail feather pulled for this purpose.) The feather would have been cut so a nub would be available to hold ink and with which to write. Since the feather could not hold a reserve of ink, the quill would have to be dipped in the ink every few words.

Iron gall ink, a purple or brownish-black ink, was the type of ink commonly used for producing important documents at the time the convention took place. Due to its solubility, this type of ink would penetrate the surface of the parchment paper making it difficult to erase or alter. Iron gall ink was made from iron salts and tannins derived from vegetable sources, specifically galls which were most commonly found on oak trees.

A subtle message might be found in the type of ink utilized. The delegates avoided the use of red ink, perhaps not wanting to set a poor precedent for future generations of American citizens. If the Constitution creating the appropriate government framework was awash in red ink, wouldn’t it be okay for the operating government to operate with red ink?

While the constitutional delegates may have had some creative ideas about future government operations, they were still creatures of habit. The constitutional convention was held in the same location where the Declaration of Independence was debated and adopted. In fact, a number of the delegates at the constitutional convention, such as Ben Franklin, had also been in attendance at the same building for the proposal and signing of the Declaration of Independence back in 1776.

The delegates to the convention were wise enough to recognize that they could not devise a perfect governmental plan, and that future circumstances might call for changes to the framework which they would establish. Wisely they aimed to create a “more perfect union” instead of a perfect union. They included procedures in Article V as to how amendments to the document could be added. Over the years, that procedure has been utilized 27 times to amend the original Constitution.

The convention’s final product lives on 232 years later. A hard original copy is on display in Washington, D.C. at the National Archives. But, more importantly, the governmental plan set forth in the Constitution continues to operate. In fact, the U.S. Constitution is the oldest written national constitution in existence today. Maybe we should consume a cheeseburger to celebrate that achievement.

JUST WONDER-ING:

What new facts about the constitutional convention have you learned by reading this blog? Was Ben Franklin too old at 81 to have made a difference at the constitutional convention? Is your view of the Constitution one of an organic document subject to change over time? Would a different governmental plan have been devised if women and minorities had been among the delegates to the convention?

 

 

 

 

 

 

Counting On Census Controversy

How high can you count? If you are an enumerator (fancy schmanzy way of saying census taker) you better be able to count into the multi-millions since the current U.S. population is estimated to be around 329,000,000. What enumerators may or may not be able to find out in the upcoming 2020 census is how many citizens and non-citizens dwell in the U.S. Yes, sir;  count on census controversy on that question.

A census is nothing new. Why the Romans took one back in Biblical times when Joseph and his pregnant fiancée, Mary, had to go to Bethlehem for a head count. Unfortunately, the gospels provide no information about what questions the Roman enumerators asked. Perhaps it was a hot-button topic  whether the occupying Romans could ask if someone was a Roman citizen.

Flash forward to more modern times. Census taking was conducted in this country prior to the ratification of the U.S. Constitution. The Constitution itself recognized the need for a population count because the legislative framework called for was congressional districts based on the number of people in an area. Article 1, Section 2 called for an “Enumeration” (read “census”) every ten years; therefore, a decennial census is constitutionally mandated.

Of key importance is that the word “citizen” is not used when the Constitution refers to the enumeration of people for determining congressional districts. The U.S. Census is a population census aiming to get a bottom line tally of the actual number of people living in this country. But while all residents are people, not all residents are citizens. This distinction is where the controversy arises.

The Census Bureau, which falls under the Commerce Department, is gearing up for the 2020 census. Commerce Secretary Wilbur Ross has proposed adding a citizenship question to the 2020 census: “Is this person a citizen of the U.S.?”. This question, the last one to be asked on the census form, will ask all those living in the United States if they are citizens.

While the question may appear to be simple, the possible answers are not simply “yes” or “no.” One of five possible answers can be selected. One is negative, i.e., not a citizen. The four “yes” answers determine if the citizen was:

  1. born in the USA (a great song title, don’t you think?);
  2. born in a U.S. territory such as Puerto Rico, the U.S. Virgin Islands, etc.;
  3. born abroad to a U.S. parent or parents; or
  4. naturalized to become a citizen.

Is anyone shocked that a government form would not have merely a “yes” or “no” response? I’m not.

A firestorm of controversy has erupted over this eight word question. And when I say firestorm, I mean lawsuits, (more) political bickering, and congressional inquiries. Court cases seeking to block the asking of .this citizenship question allege Commerce Secretary Ross intended to discriminate against minorities by adding the citizenship question to the 2020 census.

Is asking if a person is a citizen such a radical question? Well, not historically. A citizenship question was included in each U.S. census from 1890 to 1950. The question initially began to be asked during a time of high immigration to the U.S.. Moreover, the question has appeared on every American Community Survey since 2005. In addition, other countries such as Canada, Spain, and Germany ask a citizenship question on their version of a census.

Opponents of the citizenship question’s inclusion on the census argue that those who are in this country illegally would hesitate to participate in the census for fear the information given might be used against them. While this argument seems superficially appealing, it doesn’t really hold up under scrutiny. In the first place, the question asked is only if one is a citizen. It does not ask if a citizen is in the country legally. The “no” answer merely means that one is not a citizen. There are any number of individuals who are in this country as non-citizen legal residents (think green card) or long-term visitors.

In addition, who will use this information against the illegal immigrants? The information gathered in a census is confidential. It is illegal to share a census response with law enforcement or immigration agencies. Courts have upheld that no agency, including the FBI, has access to census data. (That’s legal access, of course.) Moreover, the so-called “72 Year Rule” (Public Law 95-416) provides that the government cannot release personally identifiable information about an individual to any other agency of individual for 72 years after it is collected for the census. Seventy-two years from now any illegal immigrant responding to the 2020 Census could be dead or perhaps have obtained citizenship by then..

Why is an accurate population count so crucial? The census figures are used for the distribution of federal funds and to draw state and congressional legislative districts. California’s attorney general opposed the proposed question noting that if the immigrant population is undercounted, then the census would be an incomplete count.  With an estimated 11 million immigrants in the U.S. illegally, an undercount could have a significant impact on states with large immigrant populations. California would be one of those states, hence the Golden State’s interest in the issue.

To date three federal judges (in New York, California, and Maryland) have ruled to block the administration’s plans to include the citizenship question on the 2020 Census. The addition of the question was challenged not only as discriminating against minorities but also for being added in violation of administrative law procedures. I don’t know for sure, but I speculate that the administrative procedures are as clear and easy to understand as tax laws and procedures.

Enter the Supremes! The Commerce Department sought, and was granted, an expedited appeal by the highest court in the land. Oral arguments were presented to the U.S. Supreme Court in April, and a decision is expected to be rendered by late June. Time is a factor here as the Census Bureau is facing a June 30th deadline to finalize the census questionnaire for printing.

With a Supreme Court decision looming, it means those on both sides of the issue are counting right now, and it isn’t residents or even citizens who are being counted. Opponents and proponents of the citizenship question are counting the possible votes on the Court based on how the oral arguments went and the track records of the justices. They are also counting down the days until a decision is reached. No matter what decision is rendered by the Supreme Court, you can count on one thing. The issue will remain controversial to citizens and non-citizens alike regardless of how the Supremes rule.

Just WONDER-ing:

Should the government have the right to ask those living in the country whether or not they are citizens? Is the historical use of a citizenship question in past censuses and surveys relevant to the use of such a question in our country today? How accurate is any census no matter what is asked?