Secretary of War Pete Hegseth’s intention to publicly live-stream the military’s December execution of American Muslim Nidal Hasan by firing squad proved to be too much even for President Donald Trump. Hasan, an Army psychiatrist, gunned down 13 people and injured 32 others when he opened fire in 2009 at Fort Hood, Texas. He said he had “switched sides” in the U.S.-Afghanistan war.
“Of course, we’re going to do it at Fort Hood, said Hegseth with relish. “We’re going to do it on a Thursday, we’re going to do it at 1 o’clock, which is when he did it, and it’s going to be soldiers with rifles executing the firing squad.” “People need to understand, he added, “there are serious consequences for these types of things.”
The White House put the kibosh on Hegseth’s guillotine fantasy. The argument that killing Hasan, now confined to a wheelchair, would only make him a martyr and endanger Americans proved too compelling even for a president who wears his bloodlust openly. The last documented public execution in the U.S. was the May 1937 Missouri hanging of Roscoe “Red” Jackson, preceded shortly before by the Kentucky public hanging of Rainey Bethea in August 1936.
Public executions (what comes to mind is the Reign of Terror in France) may have been the order of the day in 1789 at the time of the Constitution, but they have certainly been viewed as barbaric in contemporary times.
When the Hasan execution was still a live possibility, Vice President JD Vance said he doubted the livestream would take place, adding that he wouldn’t watch it anyway, as did Speaker Mike Johnson.
A poll released last Thursday showed Americans were overwhelmingly against the whacko idea.
Despite the cancellation, religious scholars worry it did damage. “I think one of the most worrisome parts of this development is that … it pushes the boundaries of what’s acceptable,” said Julie Ingersoll, a professor of religion at the University of North Florida who specializes in the religious right and Christian Reconstruction. “Just saying it out loud moves the boundary.”
Before the whole incident recedes too far in the rearview mirror as another bad Trump idea averted—invading Greenland, making former Representative Matt Gaetz the attorney general—it’s worth thinking about what might have happened had Trump and Hegseth gone forward.
It is doubtful the public execution’s legality would have been contested in court. Since his direct appeal became final, Hasan has not filed a single collateral attack on his conviction or sentence—either in the military justice system or in civilian courts. He could have filed a new one now, but since he was unlikely to have blocked his execution, why waste his time on blocking a public execution? If Hassan chose not to move against the sentence, it is hard to imagine anyone with “standing” to object.
Once, the Supreme Court might have found a live-streamed, public execution inconsistent with the “evolving standards of decency” that have provided the standard for what the Eighth Amendment’s Cruel and Unusual Punishments Clause prohibits. But ever since Justice Anthony Kennedy retired in 2018, the Court has embraced a 1791-style conception of which punishments are cruel and which are unusual. That our society has abandoned public executions (and the fuel such an execution would give terrorist arguments that America is barbarous) would, in the words of W.S. Gilbert, “matter, matter, matter.”
For decades, the Supreme Court recognized that, “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man,” so that the state’s power to punish must be “exercised within the limits of civilized standards.”
In a later case, the Court found that “[t]he clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures,” to determine whether a “national consensus” had formed against a given punishment. The Court stated that this inquiry does not “wholly determine the controversy,” because “the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability” of the punishment under the Eighth Amendment. The Court’s “own independent judgment” would turn on whether the penalty is disproportionate, with attention to the offender’s culpability and considerations of retribution and deterrence. In other words, the legal test is what the justices had for breakfast.
The methodology drew vigorous dissent—mostly from the originalist Justice Antonin Scalia, who objected that the Court was extracting “national consensus” from insufficient evidence of legislative action and ultimately substituting its own moral views for those of the legislatures authorizing the punishments.
No sooner did Justice Kennedy retire than Scalia’s dissent became the majority view. Justice Neil Gorsuch (on behalf of a 5-4 majority) sharply refocused the Eighth Amendment analysis on the Clause’s “original and historical understanding.” “Evolving standards of decency” was yesterday’s newspaper.
“The Eighth Amendment tolerated methods of execution, like hanging,” Gorsuch argued, “that involved a significant risk of pain, while forbidding as cruel only those methods that intensified the death sentence by ‘superadding’ terror, pain, or disgrace.” The Court also held that a prisoner must identify a “feasible and readily implemented alternative method” that would significantly reduce a substantial risk of severe pain and that the state has refused to adopt. Identification of the alternative-method requirement is “compelled by our understanding of the Constitution, not by mere policy concerns.” Isn’t it cruel and unusual by any standard to make the prisoner choose how he or she would like to die?
It is highly unlikely that this Court would identify an Eighth Amendment problem with either the military’s use of a firing squad or its public broadcast of an execution. In 1879, a unanimous Court upheld a death sentence, holding that “the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category” of cruel and unusual punishments. The Court noted that, “Soldiers convicted of … capital military offenses are in the great majority of cases sentenced to be shot.” And even outside the military context, the current Court has often pointed to firing squads as potentially better alternatives to some of the less effective methods states have pursued. It’s hard to see how the firing squad would raise an Eighth Amendment issue.
Were the “evolving standards of decency” to have any remaining currency, there might be an argument against public executions. But in the founding era, public executions were not considered either “cruel” or “unusual.” If this is the standard, Hasan’s execution could be posted to a Facebook reel.
As a former prosecutor who has dealt professionally with murders and murderers, I am not opposed to the death penalty in all cases. But I am disturbed by the frequency of botched executions, as most recently in the Christa Pike case in Tennessee, and the possibilities arising from advanced DNA findings of actual innocence. The whole idea is so repulsive that it is no wonder the late Justice Harry Blackmun declared he would “no longer tinker with the machinery of death.”
Sen. Mark Kelly, the Arizona Democrat, called on the Trump administration to remove Hegseth over the plan.
“There is no doubt that Nidal Hasan is a murderer who took the lives of 13 people and injured dozens. He should face justice for that. But a public execution? Here in the United States?” Kelly posted on X.
The Supreme Court would almost certainly say, “Ready, aim, stream it!”
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