A condemned Utah inmate's decision to die in a barrage of bullets fired by five unnamed marksmen has been vilified by many as an archaic form of Old West-style justice.
But some experts argue it is more humane than all other execution methods, without the court challenges of cruelty that have plagued lethal injection.
"Lethal injection, which has the veneer of medical acceptability, has far greater risks of cruelty to a condemned person," said Fordham University Law School professor Deborah Denno, who has written extensively on the constitutional questions that surround execution methods.
"It's not about the publicity. He just prefers it," attorney Andrew Parnes said.
Late Tuesday, Parnes appealed Gardner's case to both the 10th Circuit Court of Appeals in Denver and the U.S. Supreme Court, hoping to block the execution. Gardner, 49, was sentenced to death for a 1985 capital murder conviction stemming from the fatal courthouse shooting of attorney Michael Burdell during an escape attempt. Gardner was at the court because he faced a murder charge in the shooting death of bartender Melvyn Otterstrom.
Barring any last minute stays, when Gardner is killed on Friday he will be the first person to die by firing squad in the United States in 14 years. He will be the third man killed by that same method in Utah since a U.S. Supreme Court ruling reinstated capital punishment in 1976: Gary Gilmore on Jan. 17, 1977 — after famously uttering the last words, "Let's do it" — and John Albert Taylor on Jan. 26, 1996.
Of the 49 executions held in Utah since the 1850s, 40 were by firing squad. The method has also been widely used around the globe and was long the primary method of execution employed by the military, even in the U.S.
But lethal injection has become the primary method used by most of the 35 states that still have capital punishment, according to the Death Penalty Information Center website. Yet it isn't without controversy.
University of Colorado law professor Michael Radlet has been tracking botched executions in the U.S. and found some 42 cases that went wrong between 1982 and September of 2009. Of those executions, 30 were lethal injection, 10 were electrocution and two were from asphyxiation after exposure to lethal gas.
A court challenge of lethal injection in Kentucky essentially halted executions nationwide in 2007 as the U.S. Supreme Court grappled with whether a three-drug cocktail was more painful than just a single barbiturate. At the time, Kentucky had only had one execution by lethal injection — with no complications — but executions in Ohio and Florida had taken longer than usual and produced strong evidence that inmates had suffered severe pain in the process.
The court upheld Kentucky's use of the three drugs in 2008, clearing the way for capital punishment to resume, Denno said.
The firing squad has not been similarly challenged, and by all accounts, Utah's executions by firing squad were carried out without problems, Denno said.
"Even Gary Gilmore's father said it was a dignified execution," she said.
Utah's territorial government sought permission from the U.S. Supreme Court to use the firing squad back in the 1870s, according to Gillespie. The court said that "execution by shooting was not prohibited by the Eighth Amendment's cruel and unusual punishment clause, in that the method did not entail torture or unnecessary cruelty," Gillespie wrote in his book "The Unforgiven," which chronicles the history of capital punishment in Utah.
Historians say the method stems from 19th Century doctrine of the state's predominant religion. Early members of The Church of Jesus Christ of Latter-day Saints believed in the concept of "blood atonement" — that only through spilling one's own blood could a condemned person adequately atone for their crimes and be redeemed in the next life. The church no longer preaches such teachings and offers no opinion on the use of the firing squad.
Death penalty advocate Kent Scheidegger agrees that capital punishment should not amount to torture, but says the average person "is not really all that concerned with a murderer experiencing painless death."
Public debate is focused more on the larger issue of the death penalty and whether or not the punishment deters crime.
The barrage of publicity that follows the firing squad is largely what prompted Utah lawmakers to alter it's capital punishment law in 2004 to disallow the choice for inmates and make lethal injection the default method. Inmates sentenced before then — like Gardner — retain the choice.
In repealing the option, Utah lawmakers said they disliked the negative media attention that firing squads focused on the state, said Republican Rep. Sheryl Allen, who twice carried legislation to change the law.
In 1996, more than 150 media outlets descended on Utah to cover Taylor's execution, painting the firing squad as an Old West-style of justice that allows killers to go out in a blaze of glory that embarrasses the state.
Gardner is one of at least four of 10 men on Utah's death row who have said they want to die by firing squad.