A retired judge, once powerful enough to be appointed and promoted by two Republican presidents (Ronald Reagan and George W. Bush), seemed to subtly troll President Donald Trump’s defense secretary, Pete Hegseth, in a Monday statement. When discussing Hegseth’s decision to air live the execution of terrorist and mass murderer Nidal Malik Hasan, most have focused on the fact that America’s military has not publicized an execution in nearly a century.
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Alex Kozinski, on the other hand, praised Hegseth for executing Hasan by firing squad — which Kozinski points out is actually more humane than the most popular execution method, lethal injection.
“It borrows medicine’s costume without the people and safeguards that make medicine work,” Kozinski wrote in The Wall Street Journal. “Physicians are barred by the American Medical Association’s ethics code from participating in executions; similar constraints apply to nurses. The job therefore falls to law-enforcement personnel, who must obtain the drugs, find a vein, insert a catheter, and administer the substances in the right quantities and sequence. If the first attempt fails, they try again.”
After describing the botched executions of two convicted murderers — first Joseph Rudolph Wood II in 2014 in Arizona, who only died after 15 injections of midazolam and hydromorphone over almost two hours, and then more recently Christa Pike, who survived two pentobarbital injections in Tennessee — Kozinski cited his own work on the Wood case when declaring firing squad more humane than lethal injection.
“Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time,” Kozinski had written. “There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.”
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Kozinski closed by reaffirming his statement from the Wood case.
“Deserving as Mr. Hasan may be of his punishment, no one merits a lingering, possibly excruciating death,” Kozinski concluded. “I have some doubts whether livestreaming the execution is advisable, but Mr. Hegseth should be commended for his honesty, and for showing Mr. Hasan mercy.”
Few are arguing that Hasan — who murdered 13 people and injured 32 others at a military base in Fort Hood, Texas as a terrorist act — should be spared. Leading evangelicals are joining hands with legal scholars to oppose the act of publicly displaying Hasan’s execution on humanitarian grounds, as well as on the practical matter of the act turning Hasan into a martyr.
“The idea seemed to shock even some of his colleagues in the administration,” reported The New York Times’ Peter Baker on Friday. “Vice President JD Vance cast doubt that it would be livestreamed, telling reporters that “I don’t know that that’s going to happen” and adding that he would not watch if it does.”
Baker continued, “But Mr. Trump said he signed off on it. ‘Did I approve’ he said. ‘Absolutely I did.'” He pointed out that “no public execution has been conducted in the United States in 90 years, and the decision to conduct this one in front of an audience would put the country in the company of Afghanistan, Iran, North Korea and Somalia.”
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