What if he wants gas?

Executing people used to be so simple in Missouri. Take them to the gallows in the county seat. Put a rope around their necks. Open the trap door.
Then the state took over. Still pretty simple. Take them to the gas chamber. Strap them in the chair. Drop the tablets into the bucket of acid. They can’t hold their breath forever.
Until recently it still was pretty simple with lethal drugs. Strap them to a gurney, attach some tubes. Insert drugs. One. Two. Three. Or in the most recent circumstances, One.
If you’ve been paying attention, you know this whole drug protocol has become enormously contentious and complicated. In fact, the fight to keep Herbert Smulls from being dispatched on January 29th has shifted to Oklahoma, the place where the drug mixture the Corrections Department plans to use for Smulls was compounded. His lawyers say the drug has been stored improperly and furthermore it’s not FDA aproved and was not compounded by a Missouri-licensed pharmacy.
Rep. Rick Brattin thinks he can simplify things by legalizing a firing squad of five law enforcement officers picked by the Department of Corrections. That’s a new bill introduced in the House, HB 1407. It adds the firing squad to lethal injection or lethal gas. It preserves present wording that the names of the execution team members, appointed by the Director of Corrections, be kept secret. And it bars any professional licensing board from taking any action against any member of the execution team who takes part in killing someone–a pharmacist, a doctor, a nurse, and so forth.
But the bill as introduced leaves important questions unanswered:
Who decides which method will be used?
The old gas chamber is a tourist attraction at the old state penitentiary–or will be after the mold problems have been cleaned up and the place is safe for tours again. It won’t hold its gas anymore, meaning those who stand outside to witness the death happening inside it might themselves be executed. The last time it was used, the metal chairs had been removed and the chamber had been modified for lethal injection.
Herbert Smulls is scheduled to be executed on the 29th at the Bonne Terre prison. By lethal injection.
But what if Herbert Smulls decides he’d rather die from legal gas?
Current law is unclear on who gets to decide how an execution is carried out. The law allows both gas and drugs but it doesn’t say who gets to make that choice. Missouri has two legal means of execution but lacks the means to carry out both. Now, Rep. Brattin suggests a third choice. But he does not say in his introduced bill who gets to pick the method.
The issue can be taken care of during the legislative process through an amendment that ends that discussion, if the bill progresses through the process.
But suppose Herbert Smulls insists on gas? And what if he changes his mind at the last minute and says he wants drugs? And what if he changes his mind again and says he wants the bullet? And then he says at the last minute, “Wait a minute. I think drugs would be better.”
By which of these methods would YOU prefer to die? Should you be the one to decide that? Why should anybody else make this decision for you? It’s your death we’re talking about here.
If Missouri allows a firing squad, does a selected peace officer have to accept the job if he or she is appointed? It might trouble some police officers who otherwise would have no trouble drawing a gun in self-defense or in catching a suspect to be expected to cooly sight a high-powered rifle on a target pinned to the shirt of a condemned inmate strapped to a chair. Would a law enforcement officer have to believe in capital punishment to qualify to wear a badge in Missouri? Nevada confronted this issue in 1913 when the warden of the state prison could not find five men to shoot an inmate to death. A special shooting machine was created to do the job.
It is interesting that the bill requires the job be done by peace officers instead of member of the legislature. Given the enthusiastic support by many of them for pro-gun legislation and their resistance to any consideration for an end to the death penalty or at least a moratorium on executions, one might think those who pass execution protocol bills would be eager to use the weapons they pack during debate to get rid of those sentenced under the death penalty law they strongly protect.
Firing squads are legal in only two other states and even in those states, the practice is severely limited. Utah allows it only for inmates who had chosen that method before it was eliminated in 2004. Oklahoma allows it only if lethal injection and electrocution are declared unconstitutional.
Brattin’s bill has no such contingencies.
We reported last year that Attorney General Chris Koster was suggesting construction of a new gas chamber in case lethal injection was no longer possible. A few legislators have said they think that’s a good idea but there hasn’t been any rush of support.
Death isn’t simple anymore in Missouri.

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