Electric Chair as Cruel and Unusual Punishment

On August 6, 1890, William Kemmler became the first person to be executed via electric chair. He was also the first person to argue that this method of execution was a violation of the Eighth Amendment of the U.S. Constitution (In re Kemmler [1890]).

Kemmler’s execution, like several other executions by electric chair, has been described as a gruesome event. In most electrocutions, the prisoner is strapped into a chair with leather belts across the chest, thighs, legs, and arms. Two copper electrodes are then attached— one to the leg and the other to a helmet. A leather mask or black cloth is placed over the prisoner’s face. The executioner then presses a button to deliver the first shock of between 1,700 and 2,400 volts. This lasts somewhere between thirty seconds and one minute. Smoke usually comes out of the prisoner’s leg and head. A doctor then examines the individual, who if not dead is given another jolt of electricity. A third and fourth are given if necessary. In at least one instance, the death of Ethel Rosenberg, five jolts of electricity were needed. In some instances, the process can last between six and nineteen minutes.

After electrocution the body temperature rises to about 138
F. The fluids inside the body ‘‘boil’’ the internal organs. Justice William Brennan of the U.S. Supreme Court stated in his dissent to the denial of certiorari in Glass v. Louisiana (1985), that during an electric chair death

the prisoner’s eyeballs sometimes pop out and rest on his cheeks. He 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 [death] chamber.

Despite the fact that this description of death by electric chair sounds cruel, the U.S. Supreme Court has never determined that this method of execution is ‘‘cruel and unusual’’ in violation of the Eighth Amendment of the U.S. Constitution.

In order for a punishment to violate the Eighth Amendment, it must be both cruel and unusual. According to the U.S. Supreme Court, punishment that involves torture or unnecessary pain is cruel. However, the fact that a punishment is cruel alone does not make it unconstitutional. It must also be ‘‘unusual,’’ which has been defined by the Court in terms of consistency. This means that a punishment is unconstitutional only if it is not applied consistently to all like crimes. The underlying notion is that individuals will not be subjected to arbitrary, humiliating, or whimsical punishment outside the normal course of the law.

Lower courts have also examined the issue of whether the electric chair constitutes a form of cruel and unusual punishment under state constitutions. In these cases, the analysis is dominated by the length of time that it takes for the prisoner to die and the pain involved in the execution. For example, the Supreme Court of Florida accepted evidence of ‘‘instantaneous unconsciousness’’ and therefore no ‘‘unnecessary and wanton pain’’ when it upheld electrocution as a method of execution (Provenzano v. Moore [1999]). On the other hand, Georgia’s highest court held that use of the electric chair was cruel and unusual punishment because electrocution ‘‘inflicts purposeless physical violence and needless mutilation that makes no measurable contribution to accepted goals of punishment.’’ The Court also held ‘‘that death by electrocution, with its specter of excruciating pain and its certainty of cooked brains and blistered bodies, violates the prohibition against cruel and unusual punishment’’ (Dawson v. State [Ga. 2001]).

At one time in history, electrocution was used in twenty-six states as the preferred form of execution. Since 1924, however, there has been a clear movement away from this method of execution.

In 2005, death by electrocution is mandatory in only one state—Nebraska. However, in Palmer v. Clarke (2003), Judge Bataillon questioned the legitimacy of this form of execution by noting in dicta that the Court would find, in accordance with ‘‘evolving standards of decency,’’ that execution by electrocution is both cruel and unusual particularly since there is no evidence that electrocution is either quick or painless.

In addition to Nebraska, nine other states explicitly authorize electrocution as a form of execution— Alabama, Arkansas, Florida, Illinois, Kentucky, Oklahoma, South Carolina, Tennessee, and Virginia.

From 1890 until 2005, more than 4,460 people have been sentenced to death by electrocution in the United States. We remain the only nation in the world that continues to allow this form of execution.

JUDITH A. M. SCULLY

References and Further Reading

• Banner, Stuart. Death Penalty: An American History. Cambridge, MA: Harvard University Press, 2003.
• Capital Defense Weekly. The Shocking Truth About Death in the Electric Chair. N.d. https://members.aol.com/karlkeys/chair.htm.
• Harding, Roberta M., The Gallows to the Gurney: Analyzing the (Un)constitutionality of the Methods of Execution, Boston University Public Interest Law Journal 6 (1996): 153.

Cases and Statutes Cited

• Dawson v. State, 554 S.E.2d 137 (Ga. 2001)
• Glass v. Louisiana, 471 U.S. 1080 (1985)
• In re Kemmler, 136 U.S. 436 (1890)
• Palmer v. Clarke, 293 F.Supp. 2d 1011 (D. Nebraska 2003)
• Provenzano v. Moore, 744 So.2d 413 (1999)