Rehearing Denied June 24, 1985.
See
472 U.S.
1033.
On petition for writ of certiorari to the Supreme Court of
Louisiana.
The petition for a writ of certiorari is denied.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting
from denial of certiorari.
The petitioner Jimmy L. Glass has been condemned to death by
electrocution-"that is, causing to pass through the body of the
person convicted a current of electricity of sufficient intensity
to cause death, and the application and continuance of such current
through the body of the person convicted until such person is
dead." La.Rev.Stat.Ann. 15: 569 (West 1981). Glass contends that
"electrocution causes the gratuitous infliction of unnecessary pain
and suffering and does not comport with evolving standards of human
dignity," [ Glass v. Louisiana
471
U.S. 1080 (1985) ][1080-Continued.]
and that this method of officially sponsored execution therefore
violates the Eighth and Fourteenth Amendments. Pet. for Cert. 27.
The Supreme Court of Louisiana held that this claim must summarily
be rejected pursuant to "clearly established principles of law" and
observed that, in any event, the claim is wholly lacking in medical
or scientific merit.
455 So. 2d
659, 660, 671 (1984).
I adhere to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments, Gregg v. Georgia,
428 U.S.
153, 227, 2950, 49 L. Ed. 2d 859 (1976) (BRENNAN, J.,
dissenting), and would therefore grant certiorari and vacate Glass'
death sentence in any event. One of the reasons I adhere to this
view is my belief that the "physical and mental suffering" inherent
in any method of execution is so "uniquely degrading to human
dignity" that, when combined with the arbitrariness by which
capital punishment is imposed, the trend of enlightened opinion,
and the availability of less severe penological alternatives, the
death penalty is always unconstitutional. Furman v. Georgia,
408 U.S. 238,
287-291, 92 S. Ct. 2726, 2751-2753 (1972).
Even if I thought otherwise, however, I would vote to grant
certiorari. Glass' petition presents an important and
unsettling
Page 471 U.S.
1080 , 1081
question that cuts to the very heart of the Eighth Amendment's
Cruel and Unusual Punishments Clause 1-a question that demands
measured judicial consideration. Of the 42 officially sponsored
executions carried out since the Court's decision in Gregg v.
Georgia, supra, 31 have been by means of electrocution. [
Footnote 2] And since Gregg, an
ever-increasing number of condemned prisoners have contended that
electrocution is a cruel and barbaric method of extinguishing human
life, both per se and as compared with other available means of
execution. As in this case, such claims have uniformly and
summarily been rejected,3 typically on the strength of this Court's
opinion in In re Kemmler,
136 U.S. 436 (1890),
which authorized the State of New York to proceed with the first
electrocution 95 years ago. Kemmler, however, was grounded on a
number of constitutional premises that have long since been
rejected and on factual assumptions that appear not to have
withstood the test of experience. I believe the time has come to
measure electrocution against well-established contemporary Eighth
Amendment principles.
Page 471 U.S.
1080 , 1082
I
Electrocution as a means of killing criminals was first
authorized by the New York Legislature in 1888, and resulted from a
lengthy investigation to identify "the most humane and practical
method known to modern science of carrying into effect the sentence
of death in capital cases." 4 In In re Kemmler, supra, this Court
rejected a constitutional attack on New York's statute by William
Kemmler, who was scheduled to be the first person put to death by
electrocution. The Court emphasized that, because the Eighth
Amendment was not applicable to the States, "[t]he decision of the
state courts sustaining the validity of the act under the state
constitution is not reexaminable here." Id., at 447.5 In dicta, the
Court also followed a "historical" interpretation of the Cruel and
Unusual Punishment Clause as it governed executions carried out by
the Federal Government, suggesting that the constitutionality of a
particular means of execution should be determined by reference to
contemporary norms at the time the Bill of Rights was adopted. See
id., at 446-447-934. In addition, the Court approvingly observed
that the state court had concluded that " 'it is within easy reach
of electrical science at this day to so generate and apply to the
person of the convict a current of electricity of such known and
sufficient force as certainly to produce instantaneous, and,
therefore, painless, death.' " Id., at 443 (emphasis added).
State and federal courts recurrently cite to Kemmler as having
conclusively resolved that electrocution is a constitutional method
of extinguishing life, and accordingly that further factual and
legal
Page 471 U.S.
1080 , 1083
consideration of the issue is unnecessary. See n. 3, supra. But
Kemmler clearly is antiquated authority. It is now well established
that the Eighth Amendment applies to the States through the
Fourteenth Amendment. See, e.g., Gregg v. Georgia, 428 U.S., at 168
(opinion of Stewart, POWELL, and STEVENS, JJ.); Robinson v.
California,
370 U.S.
660 (1962). Moreover, the Court long ago rejected Kemmler's
"historical" interpretation of the Cruel and Unusual Punishments
Clause, emphasizing instead that the prohibitions of the Clause are
not "confine[d] . . . to such penalties and punishment as were
inflicted by the Stuarts." Weems v. United States,
217 U.S.
349, 372, 551 (1910). This is because "[t]ime works changes,
[and] brings into existence new conditions and purposes. Therefore
a principle to be vital must be capable of wider application than
the mischief which gave it birth." Id., at 373. The Clause thus has
an "expansive and vital character," id., at 377, 30 S. Ct., at 553,
that "draw[s] its meaning from the evolving standards of decency
that mark the progress of a maturing society," Trop v. Dulles,
356 U.S.
86, 101, 598 (1958) (plurality opinion). 6 Accordingly, Eighth
Amendment claims must be evaluated "in the light of contemporary
human knowledge," Robinson v. California, supra, 370 U.S., at 666,
rather than in reliance on century-old factual premises that may no
longer be accurate.
To be sure, legislative decisions concerning appropriate forms
of punishment are entitled to considerable deference. But in common
with all constitutional guarantees, "it is evident that legislative
judgments alone cannot be determinative of Eighth Amendment
standards since that Amendment was intended to safeguard
individuals from the abuse of legislative power ." Gregg v.
Georgia, supra, 428 U.S., at 174, n. 19, n. 19 (opinion of Stewart,
POWELL, and STEVENS, JJ.); see also Weems v. United States, supra,
217 U.S., at 371-373-551.7 "[T]he Constitution contemplates that in
the end [a court's] own judgment will be brought to bear on the
question of the acceptability" of a challenged punishment, guided
by "objective
Page 471 U.S.
1080 , 1084
factors to the maximum possible extent." Coker v. Georgia,
433 U.S. 584,
592, 597, 2866, 2869 (1977) (plurality opinion). Thus it is firmly
within the "historic process of constitutional adjudication" for
courts to consider, through a " discriminating evaluation" of all
available evidence, whether a particular means of carrying out the
death penalty is "barbaric" and unnecessary in light of currently
available alternatives. Furman v. Georgia, 408 U.S., at 420, 430,
2824 (POWELL, J., dissenting).
What are the objective factors by which courts should evaluate
the constitutionality of a challenged method of punishment? First
and foremost, the Eighth Amendment prohibits "the unnecessary and
wanton infliction of pain." Gregg v. Georgia, supra, 428 U.S., at
173 (opinion of Stewart, POWELL, and STEVENS, JJ.). See also Coker
v. Georgia, supra, 433 U.S., at 592 (plurality opinion) (a
punishment is excessive if it is "nothing more than the purposeless
and needless imposition of pain and suffering"); Louisiana ex rel.
Francis v. Resweber,
329 U.S.
459, 463, 67 S.Ct., 374, 376 (1947) ("The traditional humanity
of modern Anglo-American law forbids the infliction of unnecessary
pain in the execution of the death sentence"). The Court has never
accepted the proposition that notions of deterrence or retribution
might legitimately be served through the infliction of pain beyond
that which is minimally necessary to terminate an individual's
life. 8 Thus in explaining the obvious unconstitutionality of such
ancient practices as disembowelling while alive, drawing and
quartering, public dissection, burning alive at the stake,
crucifixion, and breaking at the wheel, the Court has emphasized
that the Eighth Amendment forbids "inhuman and barbarous" methods
of execution that go at all beyond "the mere extinguishment of
life" and cause "torture or a lingering death." In re Kemmler, 136
U.S., at 447. It is beyond debate that the Amendment proscribes all
forms of "unnecessary cruelty" that cause gratuitous "terror, pain,
or disgrace." Wilkerson v. Utah,
99 U.S.
130, 135-136, 9 Otto 130, 135-136 (1879).9
Page 471 U.S.
1080 , 1085
The Eighth Amendment's protection of "the dignity of man," Trop
v. Dulles, supra, 356 U.S., at 100 (plurality opinion), extends
beyond prohibiting the unnecessary infliction of pain when
extinguishing life. Civilized standards, for example, require a
minimization of physical violence during execution irrespective of
the pain that such violence might inflict on the condemned. See,
e.g., Royal Commission on Capital Punishment, 1949-1953 Report 732,
p. 255 (1953) ( hereinafter Royal Commission Report). Similarly,
basic notions of human dignity command that the State minimize
"mutilation" and "distortion" of the condemned prisoner's body.
Ibid. These principles explain the Eighth Amendment's prohibition
of such barbaric practices as drawing and quartering. See, e.g.,
Wilkerson v. Utah, supra, 99 U.S., at 135, 9 Otto at 135.
In evaluating the constitutionality of a challenged method of
capital punishment, courts must determine whether the factors
discussed above- unnecessary pain, violence, and mutilation-are
"inherent in the method of punishment." Louisiana ex rel. Francis
v. Resweber, supra, 329 U.S., at 464 (emphasis added). A single,
unforeseeable accident in carrying out an execution does not
establish that the method of execution itself is unconstitutional.
Cf. Estelle v. Gamble,
429 U.S.
97, 105, 291 (1976). Thus in Louisiana ex rel. Francis v.
Resweber, supra, the Court allowed a State to proceed with a second
effort to electrocute a prisoner after a mechanical failure had
interrupted the first attempt. [
Footnote 10] The Court emphasized that the initial
failure had been an "unforeseeable accident," 329 U.S., at 464, and
Justice Frankfurter's concurrence stressed that the failure had
been an "innocent misadventure," id., at 470.
A different case would be presented, however, if the Court were
confronted with "a series of abortive attempts." Id., at 471.
Page 471 U.S.
1080 , 1086
This is because the Eighth Amendment requires that, as much as
humanly possible, a chosen method of execution minimize the risk of
unnecessary pain, violence, and mutilation. [
Footnote 11] If a method of execution does not
satisfy these criteria-if it causes "torture or a lingering death"
in a significant number of cases, In re Kemmler, 136 U.S., at
447-then unnecessary cruelty inheres in that method of execution
and the method violates the Cruel and Unusual Punishments
Clause.
II
Because contemporary courts have summarily rejected
constitutional challenges to electrocution, the evidence respecting
this method of killing people has not been tested through the
adversarial truthfinding process. There is considerable empirical
evidence and eyewitness testimony, however, which if correct would
appear to demonstrate that electrocution violates every one of the
principles set forth above. [
Footnote 12] This evidence suggests that death by
electrical current is extremely violent and inflicts pain and
indignities far beyond the "mere extinguishment of life." Ibid.
[
Footnote 13] Witnesses
routinely report that, when the switch is
Page 471 U.S.
1080 , 1087
thrown, the condemned prisoner "cringes," "leaps," and " 'fights
the straps with amazing strength.' " 14 "The hands turn red, then
white, and the cords of the neck stand out like steel bands." 15
The prisoner's limbs, fingers, toes, and face are severely
contorted. [
Footnote 16] The
force of the electrical current is so powerful 17 that the
prisoner's eyeballs sometimes pop out and "rest on [his] cheeks."
18 The prisoner often defecates, urinates, and vomits blood and
drool. [
Footnote 19]
"The body turns bright red as its
temperature rises," and the prisoner's "flesh swells and his skin
stretches to the point of breaking." 20 Sometimes the prisoner
catches on fire, particularly "if [he] perspires excessively." 21
Witnesses hear a loud and sustained sound " like bacon frying," and
"the sickly sweet smell of burning flesh" permeates the chamber.
[
Footnote 22] This "smell of
frying
Page 471 U.S.
1080 , 1088
human flesh in the immediate neighbourhood of the chair is
sometimes bad enough to nauseate even the Press representatives who
are present." 23 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." 24 The body frequently is
badly burned and disfigured.25
The violence of killing prisoners through electrical current is
frequently explained away by the assumption that death in these
circumstances is instantaneous and painless. [
Footnote 26] This assumption, however, in fact
"is open to serious question" and is "a matter of sharp conflict of
expert opinion." 27 Throughout the 20th century a number of
distinguished electrical scientists and medical doctors have argued
that the available evidence strongly suggests that electrocution
causes unspeakable pain and suffering. Because " '[t]he current
flows along a restricted path into the body, and destroys all the
tissue confronted in this path . . . [i]n the meantime the vital
organs may be preserved; and pain, too great for us to imagine, is
induced. . . . For the sufferer, time stands still; and this
excruciating torture seems to last for an eternity.' " 28 L.G.V.
Rota, a renowned French electrical scientist, concluded after
extensive research that
"[i]n every case of electrocution, .
. . death inevitably supervenes but it may be very long, and above
all, excruciatingly painful . . . . [T]he space of time before
death supervenes varies according to the subject. Some have a
greater physiological resistance than others. I do not believe that
anyone killed by electrocution dies instantly, no matter how weak
the
Page 471 U.S.
1080 , 1089
subject may be. In certain cases death will not have come about
even though the point of contact of the electrode with the body
shows distinct burns. Thus, in particular cases, the condemned
person may be alive and even conscious for several minutes without
it being possible for a doctor to say whether the victim is dead or
not. . . . This method of execution is a form of torture." 29
Although it is an open question whether and to what extent an
individual feels pain upon electrocution, there can be no serious
dispute that in numerous cases death is far from instantaneous.
Whether because of shoddy technology and poorly trained personnel,
or because of the inherent differences in the "physiological
resistance" of condemned prisoners to electrical current, see n.
29, supra, it is an inescapable fact that the 95-year history of
electrocution in this country has been characterized by repeated
failures swiftly to execute and the resulting need to send
recurrent charges into condemned prisoners to ensure their deaths.
[
Footnote 30] The very first
electrocution required multiple attempts before death resulted,31
and our cultural lore is filled with examples of at-
Page 471 U.S.
1080 , 1090
tempted electrocutions that had to be restaged when it was
discovered that the condemned "tenaciously clung to life." 32
Attending physicians routinely acknowledge that electrocutions must
often be repeated in order to ensure death. [
Footnote 33] It is difficult to
Page 471 U.S.
1080 , 1091
imagine how such procedures constitute anything less than "death
by installments"-"a form of torture [that] would rival that of
burning at the stake." Louisiana ex rel. Francis v. Resweber, 329
U.S., at 474, 476, 382 (Burton, J., dissenting).34
This pattern of "death by installments" is by no means confined
to bygone decades. Here is one eyewitness account of Alabama's
electrocution of John Louis Evans on April 22, 1983:
"At 8:30 p.m. the first jolt of 1900 volts of electricity passed
through Mr. Evans' body. It lasted thirty seconds. Sparks and
flames erupted from the electrode tied to Mr. Evans' left leg. His
body slammed against the straps holding him in the electric chair
and his fist clenched permanently. The electrode apparently burst
from the strap holding it in place. A large puff of greyish smoke
and sparks poured out from under the hood that covered Mr. Evans'
face. An overpowering stench of burnt flesh and clothing began
pervading the witness room. Two doctors examined Mr. Evans and
declared that he was not dead.
"The electrode on the left leg was refastened. At 8:30 p.m. [
sic ] Mr. Evans was administered a second thirty sec-
Page 471 U.S.
1080 , 1092
ond jolt of electricity. The stench of burning flesh was
nauseating. More smoke emanated from his leg and head. Again, the
doctors examined Mr. Evans. The doctors reported that his heart was
still beating, and that he was still alive.
"At that time, I asked the prison commissioner, who was
communicating on an open telephone line to Governor George Wallace
to grant clemency on the grounds that Mr. Evans was being subjected
to cruel and unusual punishment. The request for clemency was
denied.
"At 8:40 p.m., a third charge of electricity, thirty seconds in
duration, was passed through Mr. Evans' body. At 8:44, the doctors
pronounced him dead. The execution of John Evans took fourteen
minutes." 35
Similarly, this was the scene at Georgia's electrocution of
Alpha Otis Stephens just last December 12th:
"The first charge of electricity administered today to Alpha
Otis Stephens in Georgia's electric chair failed to kill him, and
he struggled to breathe for eight minutes before a second charge
carried out his death sentence for murdering a man who interrupted
a burglary.
* * * * *
". . . A few seconds after a mask was placed over his head, the
first charge was applied, causing his body to snap forward and his
fists to clench.
"His body slumped when the current stopped two minutes later,
but shortly afterward witnesses saw him struggle to breathe. In the
six minutes allowed for the body to cool before doctors could
examine it, Mr. Stephens took about 23 breaths.
"At 12:26 A.M., two doctors examined him and said he was alive.
A second two-minute charge was administered at 12:28 A.M." 36
Stephens " 'was just not a conductor' of electricity, a Georgia
prison official said." 37
Page 471 U.S.
1080 , 1093
Thus there is considerable evidence suggesting-at the very
least-that death by electrocution causes far more than the "mere
extinguishment of life." In re Kemmler, 136 U.S., at 447. This
evidence, if correct, would raise a substantial question whether
electrocution violates the Eighth Amendment in several respects.
First, electrocution appears to inflict "unnecessary and wanton . .
. pain" and cruelty, and to cause "torture or a lingering death" in
at least a significant number of cases. Gregg v. Georgia, 428 U.S.,
at 173 (opinion of Stewart, POWELL, and STEVENS, JJ.); In re
Kemmler, supra, 136 U.S., at 447. Second, the physical violence and
mutilation that accompany this method of execution would seem to
violate the basic " dignity of man." Trop v. Dulles, 356 U.S., at
100 ( plurality opinion). Finally, even if electrocution does not
invariably produce pain and indignities, the apparent century-long
pattern of " abortive attempts" and lingering deaths suggests that
this method of execution carries an unconstitutionally high risk of
causing such atrocities. Louisiana ex rel. Francis v. Resweber, 329
U.S., at 471, 67 S. Ct., at 380 (Frankfurter, J., concurring); see
also n. 11, supra. These features of electrocution seem so
"inherent in [this] method of punishment" as to render it per se
cruel and unusual and therefore forbidden by the Eighth Amendment.
Louisiana ex rel. Francis v. Resweber, supra, at 464.
Moreover, commentators and medical experts have urged that other
currently available means of execution-particularly some forms of
lethal gas and fast-acting barbituates-accomplish the purpose of
extinguishing life in a surer, swifter, less violent, and more
humane manner. [
Footnote 38]
Several state legislatures have abandoned electrocution in favor of
lethal injection for these very reasons; one of the architects of
this change has emphasized that it resulted precisely from the
recognition that the electric chair is "a barbaric torture device"
and electrocution a " gruesome ritual." 39 Other States have
rejected electrocution in favor of the use of lethal gas. [
Footnote 40]
For me, arguments about the "humanity" and "dignity" of any
method of officially sponsored executions are a constitutional
Page 471 U.S.
1080 , 1094
contradiction in terms. See supra, at ___. Moreover, there is
significant evidence that executions by lethal gas-at least as
administered in the gas chamber 41-and barbituates-at least as
administered through lethal injections 42-carry their own risks of
pain, indignity, and prolonged suffering. But having concluded that
the death penalty in the abstract is consistent with the "evolving
standards of decency that mark the progress of a maturing society,"
Trop v. Dulles, 356 U.S., at 101 (plurality opinion), courts cannot
now avoid the Eighth Amendment's proscription of "the unnecessary
and wanton infliction of pain" in carrying out that penalty simply
by relying on 19th- century precedents that appear to have rested
on inaccurate factual assumptions and that no longer embody the
meaning of the Amendment. Gregg v. Georgia, supra, 428 U.S., at 173
(opinion of Stewart, POWELL, and STEVENS, JJ.). For the reasons set
forth above, there is an ever-more urgent question whether
electrocution in fact is a "humane" method for extinguishing human
life or is, instead, nothing less than the contemporary
technological equivalent of burning people at the stake.
Footnotes
Footnote 1 The Eighth
Amendment provides: "Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted." (Emphasis added.)
Footnote 2 See American
Civil Liberties Union, Death-Row Census (Mar. 1, 1985 ). On the
prevalence of electrocution, see also The Death Penalty in America
16 (H. Bedau ed., 3d ed., 1982) (hereinafter Bedau); Gardner,
Executions and Indignities-An Eighth Amendment Assessment of
Methods of Inflicting Capital Punishment, 39 Ohio St.L.J. 96, 119,
and n. 164 (1978).
Footnote 3 See, e.g.,
Sullivan v. Dugger,
721 F.2d
719, 720 (CA11 1983) ( order); Spinkellink v. Wainwright,
578 F.2d
582, 616 (CA5 1978), cert. denied, 440 U.S. 976 (1979); Dix v.
Newsome,
584 F.
Supp. 1052, 1068 (ND Ga.1984); Mitchell v. Hopper,
538 F. Supp.
77, 94 (SD Ga.), supp. op. sub nom. Ross v. Hopper,
538 F.
Supp. 105 ( 1982), aff'd in part and vacated in part on other
grounds sub nom. Spencer v. Zant,
715 F.2d
1562 (CA11), and aff'd in part and rev'd in part on other
grounds,
716 F.2d
1528 (1983); McCorquodale v. Balkcom,
525 F.
Supp. 408, 430-431 (ND Ga.1981), aff'd in part and rev'd in
part,
705 F.2d
1553 ( CA11), on rehearing,
721 F.2d
1493 (1983), cert. denied, 466 U.S. 954 (1984); Ruiz v. State,
265 Ark. 875, 900-901,
582 S.W.2d
915, 927-928 (1979), cert. denied, 454 U.S. 1093 (1981); Booker
v. State,
397 So. 2d
910, 918 (Fla.), cert. denied, 454 U.S. 957 (1981); Godfrey v.
Francis, 251 Ga. 652, 670,
308 S.E.2d
806, 820, cert. denied, 466 U.S. 945 (1984); State v. Shaw, 273
S.C. 194, 206,
255 S.E.2d
799, 804-805, cert. denied, 444 U.S. 957, 62 L. Ed. 2d 329
(1979); Martin v. Commonwealth, 221 Va. 436, 439,
271 S.E.2d
123, 125 (1980).
Footnote 4 See Report of the
Commission to Investigate and Report the Most Humane and Practical
Method of Carrying Into Effect the Sentence of Death in Capital
Cases 3 (transmitted to the Legislature of the State of New York,
Jan. 17, 1888). See generally Bedau 15; L. Lawes, Life and Death in
Sing Sing 183-186 (1928) (hereinafter Lawes); N. Teeters, Hang By
The Neck 446 (1967) (hereinafter Teeters); Beichman, The First
Electrocution, 35 Commentary 410, 411 (1963). Some contemporary
observers described the so-called Electrical Execution Law as a
means to ensure "euthanasia by electricity." Id., at 411.
Footnote 5 The Court
concluded that the challenged statute was reviewable only to
determine whether its enactment "was in itself within the
legitimate sphere of the legislative power of the State, and in the
observance of those general rules prescribed by our systems of
jurisprudence." 136 U.S., at 449. See also McElvaine v. Brush,
142 U.S.
155, 158-159, 157-158 (1891).
Footnote 6 See also Estelle
v. Gamble,
429 U.S.
97, 102, 290 (1976) (methods of punishment cannot trangress
contemporary " 'broad and idealistic concepts of dignity, civilized
standards, humanity, and decency' ").
Footnote 7 Were it
otherwise, the Cruel and Unusual Punishments Clause would be
rendered "little more than good advice," Trop v. Dulles,
356 U.S.
86, 104, 599 (1958) (plurality opinion), and "[i] ts general
principles would have little value and be converted by precedent
into impotent and lifeless formulas," Weems v. United States, 217
U.S., at 373.
Footnote 8 See, e.g., Furman
v. Georgia,
408 U.S.
238, 392, 2805 (1972) (BURGER, C.J., dissenting) ("The dominant
theme of the Eighth Amendment debates was that the ends of the
criminal laws cannot justify the use of measures of extreme cruelty
to achieve them ").
Footnote 9 See also id., at
279 (BRENNAN, J., concurring); id., at 430 (POWELL, J., dissenting)
("[N]o court would approve any method of implementation of the
death sentence found to involve unnecessary cruelty in light of
presently available alternatives "); Louisiana ex rel. Francis v.
Resweber,
329 U.S.
459, 473-474, 381 (1947) (Burton, J., dissenting) ("Taking
human life by unnecessarily cruel means shocks the most fundamental
instincts of civilized man. It should not be possible under the
constitutional procedure of a self-governing people. . . . The
all-important consideration is that the execution shall be so
instantaneous and substantially painless that the punishment shall
be reduced, as nearly as possible, to no more than that of death
itself").
Footnote 10 The issue in
Resweber was whether repeated attempts to electrocute a person were
unconstitutional, not whether electrocution was per se cruel and
unusual punishment. The plurality obviously believed that
electrocution in the abstract was not constitutionally forbidden,
and even the dissent assumed that electrocution generally was so "
instantaneous" and "painless" that it would not present
constitutional difficulties. Id., 329 U.S., at 474 (Burton, J.,
dissenting).
Footnote 11 We have
emphasized in procedural contexts that the Eighth Amendment
requires that all feasible measures be taken to minimize the risk
of mistakes in administering capital punishment. See, e.g., Zant v.
Stephens,
462 U.S.
862, 884-885, 2746-2747 ( 1983); Eddings v. Oklahoma,
455 U.S.
104, 118, 878, 71 L. Ed. 2d 1 (1982) (O'CONNOR, J.,
concurring). See also Royal Commission Report 729, at 255
(importance of determining "which method [of execution] is most
likely to avoid mishaps").
Footnote 12 Details
concerning the actual process of electrocution are not widely
known, primarily because "executions are carried out in private;
there are few witnesses; pictures are not allowed; and newspaper
accounts are, because of 'family newspaper' requirements of taste,
sparing in detail." Hearings on H.R. 8414 et al. before
Subcommittee No. 3 of the House Committee on the Judiciary, 92d
Cong., 2d Sess., 308 (1972) ( hereinafter 1972 Hearings). See also
Furman v. Georgia, supra, 408 U.S., at 297 (BRENNAN, J.,
concurring); Camus, Reflections on the Guillotine, in Resistance,
Rebellion, and Death 187 (1961) ("The man who enjoys his coffee
while reading that justice has been done would spit it out at the
least detail").
Footnote 13 The technical
aspects of electrocution, briefly stated, are that the authorities
bind the condemned to a wooden chair with leather straps, affix
electrodes to his shaven head and right leg, and partially cover
his face with a mask. When the switch is thrown, an "initial
voltage of 2,000 to 2,200 and amperage of 7 to 12" are sent
"hurtling through the prisoner's body," and the voltage and
amperage subsequently "are lowered and reapplied at various
intervals" until the prisoner is dead. Lawes 170.
Footnote 14 Hearings on
S. 1760 before the Subcommittee on Criminal Laws and Procedures of
the Senate Committee on the Judiciary, 90th Cong., 2d Sess., 20
(1968) (hereinafter 1968 Hearings) (statement of Clinton Duffy,
former Warden of San Quentin); Lawes 170; 1972 Hearings, at 305.
See also Teeters 448 (" 'The figure in the chair gives one terrific
lurch against the straps, every muscle contracting and straining.
The face-all that can be seen from mouth to throat-turns crimson'
") (quoting Dr. Amos Squire, Sing Sing prison).
Footnote 15 Lawes
170.
Footnote 16 C. Duff, A
Handbook on Hanging 119-120 (1974) (hereinafter Duff).
Footnote 17 "The force of
the death-dealing blow the condemned prisoner receives is more
easily understood when it is realized that this amount of
electricity, transferred into mechanical power, would be equivalent
to 884, 400 foot-pounds per minute, or enough electrical energy to
light 800 lights in the average home." Lawes 189.
Footnote 18 1968
Hearings, at 20 (statement of Clinton Duffy); see also Rubin, The
Supreme Court, Cruel and Unusual Punishment, and the Death Penalty,
15 Crime and Delinquency 121, 129 (1969). In addition, the force of
the current is so strong that it sometimes literally ruptures the
prisoner's heart. Duff 120.
Footnote 19 Tyler,
Electrocution As a Spectator Sport, 2 Fact 47, 50-51 (Mar.- Apr.
1965); see also 1968 Hearings, at 20 (statement of Clinton
Duffy).
Footnote 20 Gardner, 39
Ohio St.L.J., supra n. 2, at 126; 1968 Hearings, at 20 (statement
of Clinton Duffy). See also G. Bishop, Executions: The Legal Ways
of Death 27 (1965).
Footnote 21 Rubin, 15
Crime and Delinquency, supra n. 18, at 128; see also 1972 Hearings,
at 305; Teeters 448.
Footnote 22 Tyler, 2
Fact, supra n. 19, at 50. One veteran observer once commented:
"Only the greenhorns sit in the first row. We sit behind. The smell
is too bad." Id., at 49. See generally 1968 Hearings, at 20 (
statement of Clinton Duffy); Bedau 16; Teeters 449; Rubin, 15 Crime
and Delinquency, supra n. 18, at 128.
Footnote 23 Duff 119.
Footnote 24 Lawes 189;
1968 Hearings, at 20 (statement of Clinton Duffy). "[ T]he
electrodes making contact may reach a temperature high enough to
melt copper (1,940 degrees Fahrenheit) and . . . the average body
temperature will be in the neighbourhood of 140 degrees Fahrenheit.
. . ." Lawes 188.
Footnote 25 Bedau 16;
1968 Hearings, at 20 (statement of Clinton Duffy).
Footnote 26 Lawes
188-189; Teeters 447-448.
Footnote 27 1972
Hearings, at 305; Note, The Death Penalty Cases, 56 Calif.L. Rev.
1268, 1339 (1968). "No one knows whether electrocuted individuals
retain consciousness until dead. . . ." 1972 Hearings, at 306. See
also Bedau, General Introduction, in Capital Punishment 7, 17-18,
22-23 (J. McCafferty ed. 1972); G. Scott, The History of Capital
Punishment 219 ( 1950).
Footnote 28 Teeters 447
(quoting Nicola Tesla).
Footnote 29 Quoted in
Duff 118-119. See also Lawes 187 ("[T]he resisting power of the
human body is very high and it requires a voltage comparatively
large or small, depending entirely upon the resistance and
contacts, to force this amount of current through a circuit in
which the body, with its contacts, constitutes the
resistance").
Footnote 30 See Duff 122
("Experience proves that human beings vary enormously in their
powers of resistance to electrocution, which depends upon the
strength of current and not upon voltage pressure: hence, several
shocks may be required to produce what medical experts can
reasonably define as death, which means that doctors have to stand
by with stethoscopes at the ready to apply to the victim's chest
when he or she has been given one or more doses of current")
(emphasis in original).
Footnote 31 See generally
Teeters 446-447; Beichman, 35 Commentary, supra n. 4, at 417-419.
George Westinghouse, founder of Westinghouse Electric Company,
"thought that the job could have been 'done better with an axe.' "
Voices Against Death xxxii (P. Mackey ed. 1976) (hereinafter Voices
Against Death). The New York Press asserted that "the age of
burning at the stake is past; the age of burning at the wire will
pass also." Beichman, supra, at 417. Another newspaper
editorialized: "[I]t is not improbable that the first will prove
the last. . . . Dr. E.A. Spitzka, the celebrated expert, who was
present, unhesitatingly pronounced the experiment a failure and
declared it his belief that the law should be repealed and no more
experiments made with electricity as a means of execution." Teeters
446-447. A note in the Harvard Law Review from the time suggested
that the judicial approval of electrocution "might well be changed
in the light of subsequent experiment." 4 Harv.L.Rev. 287
(1891).
Footnote 32 R. Elliott,
Agent of Death 66 (1940) (hereinafter Elliott). See generally Bedau
15; Duff 121; J. Pritchard, A History of Capital Punishment 65
(1932); Teeters 448-449; Gardner, 39 Ohio St.L.J., supra n. 2, at
126; 1972 Hearings, at 305-306. Robert Elliott, Sing Sing's long-
time electrocutioner, described in his memoirs a number of failed
attempts to electrocute prisoners. See especially Elliott 57
("Fred's heart, larger than that of any other person electrocuted
up to that time, was still beating, and he was alive. There was
only one thing to do: put him in the chair again, and pass current
through his body until he was dead"); id., at 66 (describing the
execution of another condemned prisoner in which "six shocks [were]
necessary before he was pronounced dead"); id., at 147-148.
A noted instance of this phenomenon occurred when Ethel
Rosenberg was electrocuted for treason: five consecutive attempts
were required before she finally died. "After the fourth (shock)
guards removed one of the two straps and the two doctors applied
their stethoscopes. But they were not satisfied that she was dead.
The executioner came to them from his switchboard in a small room
10 feet from the chair. 'Want another?' he asked. The doctors
nodded. Guards replaced the straps and for the fifth time
electricity was applied." Duff 122 (emphasis in original).
See also Howells, State Manslaughter, in Voices Against Death
152:
"It was not imagined that electricity
could fail to kill instantly, much less that the criminal, who had
become the State's peculiar care, could be so ineffectually
tortured as to froth at the mouth, and strain at his bonds with
writhings of agony which almost burst them, or give out the smell
of his burning flesh so that the invited guest was often made sick
at his stomach by the loathsome and atrocious fact. Yet all this
has happened again and again in the execution of the death
sentences since the consecration of the electric chair to the
hallowed office of the axe, the noose, the screw. It has happened
so often that I, at least, had become used to reading of it, and
had tranquilly accepted it. . . . I generally managed to reconcile
myself to the record of the frothing, and burning, and writhing, by
learning further that the scientific gentleman, or the educated
electrician, on the other side of the wall, had made it all right
by discharging another thousand or two thousand volts into the body
of his erring brother, and so putting him finally out of his
misery."
Footnote 33 Dr. Amos
Squires, for years the officiating doctor at electrocutions
conducted at Sing Sing, observed that after "the current is cut off
. . . the doctor with his stethoscope listens for heartbeats-he
listens to them grow fainter and fainter. A brief interval passes.
The switch is thrown again-and after contact is broken, again the
doctor listens. There is seldom any pulse this time." Teeters 448
(emphasis added). See also id., at 449 ("[I]t often takes several
shocks of high voltage to finally convince the attending
physician-who often must rely on the executioner himself to give
the nod-that the victim is actually dead").
Footnote 34 Louisiana's
execution of Willie Francis remains the most notorious example of
the botched manner in which so many electrocutions have been
conducted. See generally L. Berkson, The Concept of Cruel and
Unusual Punishment 26-29 (1975); B. Prettyman, Death and the
Supreme Court 90-128 (1961). Sheriff Harold Resweber described the
first attempted electrocution as follows:
"Then the electrocutioner turned on
the switch and when he did Willie Francis' lips puffed out and he
groaned and jumped so that the chair came off the floor. Apparently
the switch was turned on twice and then the condemned man yelled:
'Take it off. Let me breath [sic].' " 329 U.S., at 480, n. 2, n. 2
(Burton, J., dissenting).
Another witness gave this account of the aborted attempt:
"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 him all he had.
Then Willie Francis cried out 'Take it off. Let me breath [sic].'
Then they took the hood from his eyes and unstrapped him. . . .
This boy really got a shock when they turned that machine on."
Ibid.
Footnote 35 Affidavit of
Russell F. Canan (June 22, 1983), attached to Pet. for Cert.
Footnote 36 N.Y.Times,
Dec. 13, 1984, p. A18, cols. 1-4.
Footnote 37 N.Y. Times,
Dec. 17, 1984, p. A22, col. 1.
Footnote 38 See Bedau 18;
Gardner, 39 Ohio St.L.J., supra n. 2, at 110-113; see also Royal
Commission Report 735-749, at 256-261.
Footnote 39 Gardner, 39
Ohio St.L.J., supra n. 2, at 126-127, n. 228 (quoting Texas Rep.
Ben Grant).
Footnote 40 Id., at
127.
Footnote 41 See, e.g.,
1968 Hearings, at 21; 1972 Hearings, at 306-307; Teeters 451-455;
Gardner, 39 Ohio St.L.J., supra n. 2, at 127-128.
Footnote 42 See, e.g.,
Chaney v. Heckler, 231 U.S.App.D.C. 136, 139-140,
718 F.2d
1174, 1177-1178 (1983), rev'd,
470 U.S. 821d ___ (1985);
Royal Commission Report 737-749, at 257-261; Gardner, 39 Ohio
St.L.J., supra n. 2, at 128-129.