When Police Volunteer to Kill

Authors

Alexandra L. Klein, Washington and Lee University School of LawFollow

Document Type

Article

Publication Title

Florida Law Review

Publication Date

2022

Abstract

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible--and probable--method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the consequences of relying on police officers as executioners. Police participation in executions deserves the same scrutiny as physician participation in executions. Using police officers as executioners is inconsistent with the normative and idealized functions of policing, but consistent with the culture and powers of policing. This Article explores the potential consequences of using police officers as executioners. Relying on police officers as executioners will destabilize policing because it encourages negative aspects of policing culture and undermines officers' ability to work within their communities.

This practice also risks adding impermissible features to executions, further undermining the retributive justifications for capital punishment. Using police officers from the jurisdiction where the crime occurred has a significant association with retributive and expressive functions of punishment. Pain alone should not be the primary way to assess the constitutionality of an execution. The Eighth Amendment prohibits punishment that fails to serve legitimate purposes. The Supreme Court has justified capital punishment as an expression of a community's moral outrage and a way to preserve the legitimacy of the justice system by preventing vigilantism and mob violence. This means that punishment must not be undertaken in a way that endorses vigilantism and vengeance. Relying on police officers as executioners in firing squads illustrates that the search for a less painful method of execution may not be without its own serious constitutional defects.

Recommended Citation

Alexandra L. Klein, When Police Volunteer to Kill, 74 Fla. L. Rev. 205 (2022).