18

Imagine the fictional situation: someone (e.g. a U.S. citizen) commits a capital offense, he is arrested and legally sentenced to death.

Then he somehow escapes.

His hiding place is discovered, and the only way to kill him is by a drone attack.

Can it be done? Is it a legal execution?

6
  • 4
    Question was motivated by this.
    – Gray Sheep
    Aug 15 at 23:05
  • 1
    Would you consider a drone carrying a and capable of firing a lethal dose of injection instead of explosives or bullets? Aug 16 at 19:55
  • Oh, I had not followed the link before I answered -- I was more on the money than I thought ;-) Aug 16 at 22:12
  • What about the child who is also there? Collateral damage? Aug 16 at 22:44
  • 1
    Is the hiding place in the US? Or did he flee the country, and join a terrorist organization in a hostile country? Because at that point, he could maybe be considered an enemy combatant, which is about the only scenario in which a drone strike might be legal. Aug 17 at 13:45
21

No, not in anyway. I have not reviewed the other death-sentence states but assume they will follow similar procedures:

Article 43.19 of the Texas Code of Criminal Procedure defines the place of execution:

The execution shall take place at a location designated by the Texas Department of Criminal Justice in a room arranged for that purpose.

Although there may be some convoluted scenario where the escapee could end up in such a room, a drone strike falls outside of the permitted method of execution found at Article 43.14(a):

Whenever the sentence of death is pronounced against a convict, the sentence shall be executed at any time after the hour of 6 p.m. on the day set for the execution, by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such convict is dead, such execution procedure to be determined and supervised by the director of the correctional institutions division of the Texas Department of Criminal Justice.

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    Although there could be some convoluted and hypothetical scenario where the drone injects the escapee in a designated room, which is remotely monitored by the director, but he'd probably die of old age before it could be arranged.
    – Rock Ape
    Aug 16 at 8:39
  • 2
    So... a drone with a dartgun loaded with poison darts would be a legal method of execution in Texas, as long as the Texas Department of Criminal Justice has designated the room you're in as suitable for execution?
    – nick012000
    Aug 16 at 15:41
  • 1
    @nick012000 another requirement is that the governor will have had to sign a warrant for the execution.
    – phoog
    Aug 16 at 18:28
  • 3
    @nick012000 not just "designated suitable for execution," but "a room arranged for that purpose." That is, the room has to be specifically designed for carrying out the death penalty and designated for such use by the Texas Department of Criminal Justice.
    – reirab
    Aug 17 at 8:19
  • 3
    @nick012000: Article 43.14 of the Texas Code of Criminal Procedure requires that execution be done by "intravenous injection of a substance or substances in a lethal quantity sufficient to cause death". Intravenous injection is different from intramuscular injection (which would be much easier for a drone.) Your drone would have to be pretty accurate to hit a blood vessel. Aug 18 at 19:05
47

No

Law enforcement are allowed to use “reasonable force” to effect an arrest. They are also allowed to use reasonable force to prevent imminent harm to people or property.

As described, the felon is not a danger to other people or property and a drone strike would be an ineffective means of effecting an arrest. The force used is not reasonable.

Nor can the drone be used as a means of lawfully carrying out the sentence. An execution in the USA is a highly formalised legal process and must be done strictly in accordance with the law to ensure it is not "cruel and unusual". Blowing people up with high explosives which may or may not kill them is not an authorized method of legal execution.

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    It is not about the arrest, it is about the sentence. The execution would be done by drone, in the lack of other means.
    – Gray Sheep
    Aug 16 at 1:05
  • 27
    Which state allows execution by drone?
    – Dale M
    Aug 16 at 1:07
  • 41
    @GraySheep there isn't. The people in the article you linked to under the question aren't necessarily even charged with a crime, much less convicted. It's an entirely different context. Those drone strikes are entirely extrajudicial. Nobody denies that. They're arguably military strikes, which (if you accept the argument) puts them in an entirely different legal framework. Attempting to put them in the context of a judicially imposed death sentence does not elucidate the law that the government claims to be applicable.
    – phoog
    Aug 16 at 6:13
  • 2
    You assume that the drone operator would be "law enforcement," but in the "fictional situation" described by the OP, the operator probably would be a court-appointed executioner. Of course, everything else you said about it is true... For now. Aug 16 at 12:15
  • 7
    @vsz the question is basically whether, in the case of an escaped convict sentenced to death, it is permissible to forget about trying to arrest the person and instead just trying to kill him for the purpose of carrying out the sentence. In that light, "reasonable force" is no longer a concern, so it doesn't matter whether circumstances might exist in which a drone strike is reasonable force. It's an entirely different question. Whether a drone strike is ever reasonable force in arresting an escaped prisoner does not depend on the person's sentence.
    – phoog
    Aug 16 at 18:27
12

There is a special case to consider which you probably didn't have in mind but which may be relevant anyway.

American citizens have been killed by targeted drone strikes. The government reasoned that they were combatants in an armed conflict with the United States. This designation as well as the decision to eliminate the target is made by the executive alone.

A conviction by a regular court would probably not legally prevent the government to eliminate a target as part of a military operation, including targeted drone strikes. Of course the legitimization would come from the target's military status, not from their criminal conviction. Such a case could arise if the target had been convicted of a terrorist act that can be regarded part of an armed conflict with the United States.

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    @Peter-ReinstateMonica That is generally not the case with regard to military actions. The Army and the Air Force are specifically forbidden by law from use in enforcing domestic laws. The Navy (and, as part of the Department of the Navy, the Marines) are banned from doing so by DoD regulation. The CIA is also generally banned from conducting offensive operations domestically (or even conducting intelligence operations on U.S. citizens abroad.)
    – reirab
    Aug 17 at 8:40
  • 2
    @Leherenn Generally, allowing the military to act inside the country against citizens is bad idea, as this suddenly transforms a justice system with checks and balances and safeguards into arbitrary execution, which in the case of the US (and many other countries) is clearly forbidden by the Fifth Amendment. I don't think anyone (military included) wants to cross that line. This is a job for the FBI and other civilian agencies. But of course in dire situations, anything can happen (but we're straying quite far from the original question).
    – jcaron
    Aug 17 at 10:04
  • 2
    @reirab The legitimization for the drone killings (also in my answer here) is not through criminal law but through the (possibly, of course, pretended or mis-conceived) military requirements of an armed conflict. In this respect it probably misses the gist of the question (and I wrote it without reading the background link the OP had in the comments). Back to your comment: True, the U.S. army cannot regularly domestically act as law enforcement; but it can certainly defend against an attack on U.S. soil, which my hypothetical drone killing scenario is framed as. Aug 17 at 10:10
  • 2
    @jcaron Domestic military intervention is a bad idea during peace time; but I think it is unanimously accepted as a necessity and privilege when under attack ;-). Aug 17 at 10:11
  • 2
    @AlexanderThe1st Reirab mentioned that already, and my comment no. 2 was incorrect in that respect. But the act "limits the powers of the federal government in the use of federal military personnel to enforce domestic policies"... that is not what this answer discusses. Aug 18 at 20:31
5

Additional NO:

While the Federal Government does retain the death penalty, it is rarely used and since Gregg v. Georgia, only sixteen people have been put to death by the Feds. All have been by lethal injection. The vast majority of Post-Gregg executions are done by state governments. The U.S. Military has not used the death penalty since 1961.

Since its the Federal Government, via the military, that would be flying armed drones capable of this, they would have to pull the trigger on a drone strike. Several laws like the Posse Comitatus Act prevent the U.S. military from engaging in Law Enforcement actions in the U.S., which this scenario would certainly be. The responsible agency of government would likely be state or local police OR the U.S. Marshal Service if the escapee has crossed State Lines (Possibly FBI if they are following new crimes).

While it's likely that the use of lethal force is authorized, it would be police shooting the escapee, not the military drone strike.

2
  • It doesn't have to be a missile-firing military controlled drone. There are plenty of commercially available UAVs capable of carrying a payload to its intended target.
    – Rock Ape
    Aug 16 at 13:28
  • @RockApe The question is about legality, which rules out a commercial drone loaded with explosives or firearms as that's illegal.
    – barbecue
    Aug 16 at 17:04
5

If the escaped convict is reasonably capable of being arrested without the use of deadly force, then as mentioned above, the use of a drone to apply deadly force would be excessive force. This could result in judgments against the agencies and individuals responsible for the use of excessive force. Just because the escapee is sentenced to death doesn't authorize other people (even law enforcement) to administer that sentence.

It is interesting to note that there is one very close precedent for the use of a drone to apply deadly force by a law enforcement agency that I'm aware of in US History, which I've not seen brought up anywhere else here. On July 7 2016, Micah Johnson killed five police officers in Dallas and injured several more before barricading himself. Negotiations were attempted and deemed to be ineffective, so a decision was made to use a bomb disposal robot armed with C-4 to kill Johnson without further law enforcement casualties. To my knowledge, this is still the only instance of a robot or drone being used for deadly force by a law enforcement entity in the United States, and I've never seen a good argument for it being unreasonable under the extremely unusual and specific circumstances in that situation. There is quite reasonably plenty of concern about the precedent it set, but it's never been deemed excessive or unreasonable by the courts.

In terms of its relation to the original question, if the hypothetical escapee were barricaded and seemingly incapable of being arrested without further casualties, this precedent might be one that a law enforcement agency would point to when making the call to use deadly force, though it's certainly not legally settled ground. In that circumstance though, the escapee's death sentence wouldn't really be a justification for the use of deadly force.

-1

Counterargument: Yes, in the sense that those involved would be very unlikely to face criminal prosecution, although the taxpayers of the police force responsible might have to pay damages.

The obvious precedent is the MOVE bombing, but similar considerations of excessive force and starting a fire which results in the deaths of those under siege apply. I would say the preconditions were:

  • be within the US
  • be a police force (not the military, although given the lack of conviction for Kent State shootings this might also be possible)
  • actually have a drone
  • attempt enough of a siege to make it look like a peaceful arrest was possible
  • encounter armed resistance
  • argue that the drone was used against a building and not against a person

The situation of drone strikes outside the US is different. It is not, in general, against US law to commit crimes overseas, unless it's specifically provided for in US law or affects the US. US police forces do not have overseas jurisdiction. The US Supreme Court has declined to review the test case which concluded that military action is not subject to court review, so it would appear that it's entirely legal under civilian law for the US military to murder people overseas, provided it complies with military law.

(It is of course almost certainly against Yemeni law for the US to murder people in Yemen, but they lack the power to do anything about it)

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    OP asks "legally". Was the MOVE bombing legal? And your third point should be clarified to be an armed drone. Many local authorities have drones, but few if any have armed drones.
    – gerrit
    Aug 16 at 13:54
  • 2
    @gerrit wikipedia says "The MOVE Commission issued its report on March 6, 1986. The report denounced the actions of the city government, stating that dropping a bomb on an occupied row house was unconscionable.[14] Following the release of the report, Goode made a formal public apology.[15] No one from the city government was criminally charged in the attack." "No criminal charges" is not the same as "legal", but it's a partial answer to what you asked. Aug 16 at 14:45
  • 2
    @RossPresser I saw that, but it doesn't say that it was legal. It looks like the legality was never tested in criminal court.
    – gerrit
    Aug 16 at 14:48
  • 1
    I don't think just because there was no criminal prosecution means it's legal. On a much smaller scale, I would probably get away with going 5mph over the speed limit, but that doesn't make it legal.
    – PC Luddite
    Aug 16 at 15:35
  • 1
    The MOVE case is distinguishable from the hypothetical in question by the fact that none of the people who died in Philadelphia was awaiting execution for a crime for which they'd been duly convicted in court.
    – phoog
    Aug 16 at 18:32

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