Harkening back to the 1800s, Tennessee Governor Bill Haslam signed a bill into law on May 22, 2014 that brings back the electric chair – a method of execution plainly fraught with error and considerable suffering. The new law allows Tennessee to electrocute death row inmates if the state is unable to obtain lethal injection drugs or if lethal injection is deemed unconstitutional. Lethal injection is currently the standard method of execution in Tennessee, as it is in all states that permit capital punishment. Existing Tennessee law allowed inmates convicted of an offense prior to 1999 to choose electrocution, although virtually no one did. The new law changes matters in that the state will be able to impose electrocution without providing inmates with any choice. The law becomes effective on July 1, 2014, and will apply to any person sentenced to death after that date.
The Tennessee law passed largely because of current complications surrounding lethal injections. The drugs required for lethal injection are becoming increasingly scarce and difficult to obtain. Foreign government regulations, European Union restrictions, and the refusal of drug companies to sell lethal injection drugs to states have limited the supply of such drugs. As a result, states have begun experimenting with untested and unchartered drug combinations and protocols to administer lethal injections. Compounding this issue is the fact that many states, including Oklahoma, Missouri, and Texas, are obtaining drugs for lethal injection without disclosing the source. These new protocols have resulted in multiple botched executions, including that of Clayton Lockett last month.
Recent accounts of failed lethal injections are sadly reminiscent of botched electrocutions of the past. The electric chair, first introduced in the late 1800s, replaced hanging as the “preferred” method of execution. At the time, electrocution was considered a more humane alternative, but multiple accounts of the gruesome effects of electrocution make it clear that use of the electric chair is untenable. Based on empirical evidence and eyewitness testimony, Justice William Brennan described execution by electric chair as follows:
. . . death by electrical current is extremely violent and inflicts pain and indignities far beyond the “mere extinguishment of life.” Witnesses routinely report that, when the switch is thrown, the condemned prisoner “cringes,” “leaps,” and “fights the straps with amazing strength.” “The hands turn red, then white, and the cords of the neck stand out like steel bands.” The prisoner’s limbs, fingers, toes, and face are severely contorted. The force of the electrical current is so powerful that the prisoner’s eyeballs sometimes pop out and “rest on [his] cheeks.” The prisoner often defecates, urinates, and vomits blood and drool. “The body turns bright red as its temperature rises,” and the prisoner’s “flesh swells and his skin stretches to the point of breaking.” Sometimes the prisoner catches on fire, particularly “if [he] perspires excessively.” Witnesses hear a loud and sustained sound “like bacon frying,” and “the sickly sweet smell of burning flesh” permeates the chamber. This “smell of frying human flesh in the immediate neighbourhood of the chair is sometimes bad enough to nauseate even the Press representatives who are present.” In the meantime, the prisoner almost literally boils: “the temperature in the brain itself approaches the boiling point of water,” and when the postelectrocution autopsy is performed “the liver is so hot that doctors have said that it cannot be touched by the human hand.” The body frequently is badly burned and disfigured. Glass v. Louisiana, (dissent from denial of certiorari) (citations omitted).
In 2001, Georgia’s Supreme Court held the electric chair to constitute cruel and unusual punishment (Dawson v. Georgia, 554 S.E.2d 137 (Ga. 2001))
At least in part due to these problems states began turning to lethal injection, and by the 1990s it displaced the electric chair as the United States’ favored means of execution. Again, this new alternative was seen as a more humane method of execution. However, as recent botched lethal injections make grimly obvious, lethal injection is also an untenable means of execution. Rather than face this reality, Tennessee has attempted to maintain the death penalty through a regressive law that reinstates the inhumane practice of electrocution.
Tennessee’s reinstatement of the electric chair will certainly face legal challenges. And supporters of capital punishment will no doubt cite In re Kemmler, an 1890 Supreme Court decision, as support for the constitutionality of the electric chair. But the decision does not stand for such a proposition. Kemmler declined to consider the validity (and thereby constitutionality) of electrocution. Kemmler simply held that the Eighth Amendment’s protections were not applicable to state actions through the Fourteenth Amendment (a holding that the Supreme Court has since reversed). Kemmler did observe, however, that “[p]unishments are cruel when they involve torture or a lingering death . . . .”
The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Supreme Court has observed that the Eighth Amendment reaffirms the duty of government to respect the dignity of all persons, even those who commit heinous crimes. The Court has held that when determining whether a punishment is unconstitutional as “cruel and unusual,” it must look to the “evolving standards of decency that mark the progress of a maturing society.” In recent years, the Court has applied this standard to limit the scope of capital punishment. For example, in Atkins v. Virginia (2002), the Supreme Court held that intellectually disabled individuals could not be sentenced to death, as to do so was a form of cruel and unusual punishment that did not conform with “evolving standards of decency.” And just last month, in Florida v. Hall, the Court held that a Florida law that defined intellectual disability based strictly on a rigid IQ cutoff “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” The Hall decision reiterated the Court’s commitment to the evolution of “[t]he Eighth Amendment’s protection of dignity,” which, as Justice Kennedy said in his majority opinion, “reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.”
Although the Supreme Court, in Baze v. Rees (2008), declined to hold lethal injection unconstitutional, that decision rested largely on the lack of sufficient “evidence regarding alleged defects in [lethal injection] protocols.” Recent events, namely the scarcity of lethal injection drugs and botched lethal injections inflicting severe and unnecessary pain, have provided just such evidence.
So where are we now? The answer to problems with lethal injection is not to regressively turn back to the electric chair, as Tennessee has done – both of these methods of execution have been shown to be cruel and inhumane. Indeed, the search for a “humane” way to execute people is a fool’s errand, certain to fail. If we are to live up to the Constitution’s protection of human dignity and recognition of evolving standards of decency, so that we can become the nation we aspire to be, the only answer is to recognize the unconstitutionality of capital punishment. The current state of capital punishment has reached its limit, and the nation should, as Justice Blackmun suggested 20 years ago, discontinue our “tinker[ing] with the machinery of death.”
The United States ratified the International Covenant on Civil and Political Rights (ICCPR), which prohibits torture or to cruel, inhuman or degrading treatment or punishment, understood by the United States to mean the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States. The Advocates for Human Rights submitted a shadow report to the United Nations Human Rights Committee, the treaty body that oversees compliance with the ICCPR, detailing how the death penalty in the U.S. violates basic human rights, including the right to be free from cruel, inhuman, or degrading treatment or punishment. The Advocates was present at the Committee’s 100th session in Geneva, Switzerland in March, when the Committee took the U.S. to task on the death penalty and other issues. In its concluding Observations, the Committee urged that measures be taken to ensure that the death penalty is not carried out in a racially biased or erroneous manner and that lethal injection drugs come from legitimate sources.
 The United States has also ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, but issued a reservation stating, “That the United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty.”
By: Steven M. Pincus, shareholder with the Anthony Ostlund Baer & Louwagie law firm. His pro bono practice has included representing death row inmates from both Louisiana and Mississippi in post-conviction proceedings. Pincus is one of the lawyers who won the release of Albert Burrell from Louisiana’s death row. Burrell was exonerated and freed from the Louisiana State Penitentiary at Angola in January 2001, after spending more than 13 years on death row for a crime that he did not commit.
Laura Gordon, a summer associate with Anthony Ostlund Baer & Louwagie, contributed to the blog post.