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Column: Pondering The Niceties Of Executions (New York Law Journal)

by Christopher DunnA version of this article was published by the New York Law Journal on December 21, 2007.

Two weeks from today the Supreme Court is to hear oral arguments in a case that has brought death-penalty executions to a halt around the country. At issue in Baze v. Rees is whether lethal injection violates the Eighth Amendment’s proscription against cruel and unusual punishment.

Setting aside what may appear to some to be the absurdity of a system that allows the government to kill people but that purports scrupulously to assure that the killing is humane, the case marks the first time in over sixty years that the Supreme Court has confronted the constitutionality of a particular means of execution. And though the current controversy has received considerable public attention, few realize that disputes about the constitutionality of execution techniques date back to the nineteenth century.
These earlier cases provide an interesting historical perspective on the upcoming arguments.

Firing Squads and the West

The first time the Supreme Court passed on the constitutionality of a method of execution was in 1878, when it decided Wilkerson v. Utah.1 After being convicted of premeditated murder, the defendant was sentenced to “be taken from your place of confinement to some place within this district, and that you there be publicly shot until you are dead.”

The case made its way to the Supreme Court, which affirmed the sentence in an opinion that, perhaps characteristic of the time, relied not on a single judicial decision but instead entirely upon commentators. Though much of its discussion focused on issues of statutory authorization, the Court briefly touched upon whether shooting a prisoner amounted to cruel and unusual punishment.

As an initial matter, the Court did not even address the threshold question whether the Eighth Amendment even speaks to the propriety of any specific execution technique (as opposed to the propriety of the death penalty generally). Rather, the Court proceeded directly to the ultimate issue of whether shooting someone was cruel and unusual.

In concluding that it was not, the Court first pointed to reports from commentators that soldiers convicted of capital military offenses “are in the great majority of cases sentenced to be shot.” As for capital offenses in the civil context, commentators reportedly revealed that “in very atrocious crimes other circumstances of terror, pain, or disgrace were sometime superadded.” These included being “drawn or dragged to the place of execution”; being “embowelled alive, beheaded and quartered”; “public dissection”; and “burning alive in treason committed by a female.” All of these, the Court indicated, would be more than the Constitution would countenance:

Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.

Notwithstanding these limits, the Court noted, “still it by no means follows that the sentence of the court in this case falls within that category.” Indeed, the Court did not seriously consider arguments to the contrary, perhaps because the suggestion that death by shooting amounted to cruel and unusual punishment was “not pretended by the counsel of the prisoner.”

The Electric Chair and New York

In addition to bringing artificial illumination to the world, the harnessing of electricity wrought substantial changes in the administration of the death penalty. And this innovation spurred the Supreme Court’s second ruling on a particular method of execution.

In re Kemmler2, decided in 1890, presented the Court with the question of whether the then novel method of electrocuting people to death was cruel and unusual punishment. The sentence imposed on the defendant called for “causing to be passed through the body of him the said William Kemmler . . . a current of electricity of sufficient intensity to cause death, and that the application of such current of electricity be continued until he . . . be dead.”

Over the prosecution’s objections, Mr. Kemmler’s counsel had developed a factual record about “the effect of electricity as an agent of death.” In upholding the lower courts’ rejection of the defendants’ challenge, the New York Court of Appeals concluded that the evidence “removes every reasonable doubt that the application of electricity to the vital parts of the human body, under such conditions and in the manner contemplated by the statute, must result in instantaneous, and consequently in painless, death.”

The Supreme Court affirmed in an opinion that addresses, albeit fleetingly, the content of the ban on cruel and unusual punishment. It did allow that a state scheme of execution by “burning at the stake, crucifixion, breaking on the wheel, or the like” would run afoul of the Constitution. More broadly, the Court observed that “[p]unishments are cruel when they involve torture or a lingering death; but the punishment or death is not cruel within the meaning of that word . . . . It implies there something inhuman and barbarous, something more than the mere extinguishment of life.”

With these principles in mind, the Court expressed no reservation about electrocution, relying on the Court of Appeals’ analysis. And that analysis was premised on the notion that electrocution was an effective technique of causing “instantaneous” and thus “painless” death.

Electrical Malfunction in Louisiana

New York’s prediction of instant and painless death turned out to be far from true for Willie Francis, a man sentenced to death in Louisiana in 1945. His plight led to the Supreme Court’s decision in Louisiana ex rel. Francis v. Resweber 3, its third and most recent decision about a method of execution. Unlike the unanimous decisions in Wilkerson, and In re Kemmler, Francis prompted a serious split in the Court

Having been sentenced to death, “Francis was prepared for execution . . . and placed in the official electric chair of the State of Louisiana in the presence of the authorized witnesses. The executioner threw the switch but, presumably because of some mechanical difficulty, death did not result.” An affidavit in the record from one of the witnesses explained,

I saw the electrocutioner turn on the switch and I saw his lips puff out and swell, his body tensed and stretched. I heard the one in charge yell to the man outside for more juice when he saw that Willie Francis was not dying and the one on the outside yelled back he was giving it all he had. Then Willie Francis cried out, “Take it off. Let me breath[e].” Then they took the hood from his eyes and unstrapped him.

When Louisiana sought once again to electrocute Francis, he challenged it on the grounds, amongst others, that to re-electrocute him would be cruel and unusual. In a plurality opinion, the Court brushed this aside, finding that “nothing in what took place here . . . amounts to cruel and unusual treatment in the constitutional sense.” After reiterating the standards set out in In re Kemmler, the plurality obliquely reasoned as follows:

Petitioner’s suggestion is that because he once underwent the psychological, strain of preparation for electrocution, now to require him to undergo this preparation again subjects him to a lingering or cruel and unusual punishment. Even the fact that petitioner has already been subjected to a current of electricity does not make his subsequent electrocution any more cruel in the constitutional sense than any other execution. The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely. (Emphasis added)

Four Justices vigorously dissented, arguing that the only form of electrocution approved by the Court was electrocution that “eliminates suffering” through “instantaneous death.”

Lethal Injection in Kentucky

Reflecting the purported evolution towards ever more humane forms of execution, virtually every state has abandoned the electric chair in favor of lethal injection, leading to the case to be argued in two weeks. The Supreme Court of Kentucky, whose ruling is before the Supreme Court, described the lethal injection procedure at issue as follows:

Three grams of sodium thiopental, commonly referred to as Sodium Pentathol, are then injected. This drug is a fast acting barbiturate that renders the inmate unconscious. At this level of injestion, the person is rendered unconscious for hours. . . . .
Fifty milligrams of pancuronium bromide, commonly referred to as Pavulon, follows. This drug causes paralysis. The purpose is to suspend muscular movement and to stop respiration or breathing. . . .
Finally, 240 milligrams of potassium chloride is injected. This chemical disrupts the electrical signals required for regular heart beat and results in cardiac arrest.

As originally challenged, Kentucky’s administration of this lethal injection regime provided for the insertion of an intraveneous catheter into the prisoner’s neck. A lower court had found that specific aspect of the execution method to create, as described by the Kentucky Supreme Court, “a substantial risk of wanton and unnecessary infliction of pain” and declared that it amounted to cruel and unusual punishment. Before the case reached the Kentucky Supreme Court, the state changed the injection procedure, so the only issue before the court was whether the regime was unconstitutional.

Without mention of Wilkerson, In re. Kemmler, or Francis, the Kentucky Supreme Court devoted three paragraphs to the cruel and unusual punishment claim. At the outset, after stating that Sodium Pentathol renders the prisoner unconscious, the court explained that “[t]he prohibition is against cruel punishment and does not require a complete absence of pain. Conflicting testimony prevents us from stating categorically that a prisoner feels no pain.” The court then described the only prior Kentucky execution using lethal injection, in which the prisoner reportedly “went to sleep within 15 seconds to one minute from the moment that the warden began the execution and never moved or exhibited any pain whatsoever subsequent to losing consciousness.” Finally, the court string-cited four other state and federal cases rejecting challenges to lethal injection.

Looking Forward to the Supreme Court

The Supreme Court’s decision to accept for review the Kentucky lethal injection case may be a seminal development in the death penalty area. Given how little Supreme Court case law or doctrine exists about the issue of specific methods of execution, the Court is essentially writing on a blank slate. And though the little existing law in this area from the Court’s three earlier rulings does not bode particularly well for a challenge to lethal injection, the fact that the Court has effectively halted executions across the country in anticipation of deciding Baze v. Rees tantalizingly suggests that five members of the Court may be ready to change the course of death penalty jurisprudence in this country.





1 99 U.S. 130 (1878).

2 136 U.S. 436 (1890).

3 329 U.S. 459 (1947).


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