Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death Over the Century

Abstract

Electrocution has been used in the great majority of executions in this century. Today, it is second only to lethal injection as the preferred method of execution. At the same time, however, electrocution never has been scrutinized under modern Eighth Amendment standards. This circumstance persists despite substantial evidence that death by electrocution may inflict unnecessary pain, physical violence, and mutilation, rather than the mere extinguishment of life.

This Article provides the Eighth Amendment analysis of electrocution that the courts thus far have not approached. The analysis has two parts. The first inquires whether, according to available scientific evidence, electrocution amounts to cruel and unusual punishment even if it is administered as planned. The second inquires whether, in light of the frequency with which electrocutions are botched, continuing the practice amounts to cruel and unusual punishment even if the properly administered electrocution would not. Part I of this Article examines the philosophical, financial, and political forces preceding In re Kemmler, in which the United States Supreme Court bypassed determining the constitutional viability of electrocution by holding that the Eighth Amendment did not apply to the states . Part II analyzes the credibility and consequences of Kemmler, as well as the reasons for the defendant's botched execution. Part III discusses the Supreme Court's evolving execution jurisprudence and Kemmler's precedential force on 226 cases over the century. Part III also notes that courts have relied on Kemmler as constitutional support for all methods of execution as well as general Eighth Amendment propositions. Part IV evaluates the constitutionality of electrocution, providing the most thorough examination available of recent scientific and eyewitness evidence, as well as the means by which electric chairs are made and applied. Part IV ends with an account of the rise and fall of Fred A. Leuchter, also known as Dr. Death, formerly the primary manufacturer of execution equipment in this country. Part V describes eleven major botched electrocutions that have occurred since the death penalty was reinstated. Part VI suggests that electrocution does not appear to be a more humane execution method than hanging or shooting, the methods it was created to displace, and questions whether Kemmler warrants any further credibility.

This Article concludes that claims that electrocution, if properly administered, provides instantaneous and therefore painless death are contradicted by substantial evidence demonstrating that it may inflict unnecessary pain, physical violence, and mutilation. Moreover, even if a properly administered electrocution should not be considered unconstitutional, the practice amounts to cruel and unusual punishment because of the frequency with which electrocutions are, and likely will continue to be, botched. The fact that courts have continued to turn a wilfully blind eye toward states' use of electrocution in light of the century-long evidence of its cruelty, negligent application, and insupportable case law, constitutes a great judicial and legislative scandal.