Turning Back to Electrocution—Reversing the Eighth Amendment Ratchet?

A few days ago, the governor of Tennessee signed a law providing that scheduled executions could be carried out by electrocution rather than by lethal injection if lethal injection drugs were unavailable. This decision comes on the heels of states like Tennessee struggling with a shortage of lethal injection drugs. Also likely triggering this move are the allegationsthat states’ experimentations with new drugs and drug combinations in carrying out lethal injections are inhumane and constitute cruel and unusual punishments in violation of the Eighth Amendment. It’s understandable that states like Tennessee might try another strategy in carrying out death sentences. Moving to the earlier-practiced method of electrocution, though, is somewhat unexpected. Sure, several states have older methods of execution, like electrocution, as back-ups in case an individual requests it or lethal injection, in general, turns out to be unconstitutional. Alabama law, for example, provides that “[a] death sentence shall be executed by lethal injection, unless the person sentenced to death affirmatively elects to be executed by electrocution.” And Oklahoma law states that “[t]he punishment of death shall be carried out by the administration of a lethal quantity of a drug or drugs until death is pronounced . . . . [but] [i]f [lethal injection] is held unconstitutional . . . then the sentence of death shall be carried out by electrocution.” Providing for electrocution based only on the shortage of lethal injection drugs, though, is unprecedented.

Courts judge the constitutionality of a punishment by the “evolving standards of decency that mark the progress of a maturing society.” While individuals have been punished by death for time immemorial, the method of carrying out this punishment has evolved from hanging, to electrocution, to firing squad, to lethal gas, to lethal injection. New York, seeking a more humane method of execution than hanging, built the first electric chair in 1888. I’ll spare you the details, but electrocution has been described as a pretty gruesome process. This is especially so, at least from the observer’s point of view, when compared with the ordinary process of lethal injection, in which the offender is first sedated and then his involuntary movements are masked by a paralytic. The century-long movement away from electrocution seems to be consistent with the sense that our standards of decency improve from generation to generation. Jurisdictions abandon old methods of punishment as new methods emerge, and the old methods then become unusual in practice and also statutorily unusual.

These evolving standards of decency of the Eighth Amendment have been described as a “one-way ratchet”; once the Court declares a particular punishment unconstitutional, jurisdictions are prohibited from authorizing the punishment, therefore it has no chance to move from unusualness to usualness. Indeed, in oral arguments in Atkins v. Virginia, Justice Scalia suggested that the Court should be extremely careful in determining that a punishment is unconstitutionally cruel and unusual because “once [the Court has] decided that you cannot legislate the execution . . . , there can’t be any legislation that enables us to go back.” Considering that unusualness is essential to the Punishments Clause prohibition, this one-way ratchet idea is also relevant even if the Supreme Court has not officially declared a particular punishment to be unconstitutional. Once a punishment becomes unusual enough, it is at risk of being unconstitutional.

Electrocution has in fact become rather unusual. Only eight of the thirty-four death penalty jurisdictions (and only eight of the fifty-three death- and non-death-penalty jurisdictions) authorize electrocution in any circumstance. And there have been just 158 electrocutions in the United States since 1976. This is in contrast to the 1,204 lethal injections that have taken place during this same period. Electrocutions account for just 11% (158/1379) of the executions carried out since 1976. However, as I’ve suggested before, the Supreme Court’s standard of unusualness is somewhat changeable. Still, it seems that the unusualness of electrocution makes it constitutionally suspect even though the Court has not declared it unconstitutional.

But note that we’ve neglected to measure the cruelty of the punishment. Indeed, the Eighth Amendment prohibits punishments that are cruel and unusual. I’ve argued elsewhere that each of these components is necessary before a punishment is unconstitutional under this Clause of the Eighth Amendment. Indeed, the Court’s assessment of how many jurisdictions employ or prohibit punishment might be considered a measure of unusualness, and the Court’s turn to its own judgment about the punishment at issue might be deemed an inquiry into the punishment’s cruelty. (The first inquiry of unusualness, however, may often be linked to a society’s determination of the punishment’s cruelty as well.) But others view the relevant language of the Punishments Clause as a term of art rather than as a dual requirement. The scope of the phrase is interpreted by looking at a consensus of jurisdictions (and sometimes juries), plus the individual judgments of the nine Supreme Court Justices. Even under this view, though, the unusualness of electrocution is significant in its constitutional fate.

In Baze v. Rees, the Court stated that “capital punishment is constitutional. It necessarily follows that there must be a means of carrying it out.” But does the shortage of lethal injection drugs make what might otherwise be considered an unconstitutional punishment constitutional? If execution could only be carried out by torturous means, would torture become tolerable under the Eighth Amendment? There must be limits to this statement by the Court. Under current constitutional analysis, executions need not be free of pain, but they cannot be carried out by barbarous, outdated methods because more humane methods are logistically difficult. Allowing such a turn back in time would be a reversal of the Eighth-Amendment ratchet that has been said to move in only one direction.

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15 Responses

  1. Second Murderer’s Execution Blocked – UNNECESSARILY
    Avoid Injection Problems by Putting Murderers on the Pill

    The U.S. Supreme Court has just blocked the execution of a condemned murderer because his veins might create problems for lethal injections, just as Oklahoma spared another murderer because of problems involved in injecting lethal drugs in an earlier botched execution, but both are completely unnecessary, argues public interest law professor John Banzhaf, because there is a simple solutions which avoids all the problems with death by injection.

    Virtually all of the problems associated with using drugs to execute convicted murderers occur because the drugs are being injected. These many problems include finding a suitable vein, positioning the needle, making sure the catheter is properly located, being sure it doesn’t come out, using a syringe, problems with tubing which may crimp or clog, etc.

    Problems also include finding people with medical training competent to start and maintain intravenous lines who are not prohibited from participating in executions by ethical and professional guidelines, locating sufficient quantities of injectable drugs now that many drug companies are trying to prevent them from being used in executions, and a federal judge who has barred the importation of most of those drugs because the FDA has not found them to be both safe and effective to kill people – an obvious contradiction for drugs used in executions, suggests Banzhaf.

    Fortunately, there appears to be a simple, easy, and inexpensive means to avoid most all of these problems, including drug company restrictions on the sale of injectable drugs, expiration dates on injectable drugs now being faced in several states, and the so-called “botched executions” involving injecting lethal drugs cited by death penalty opponents – putting the condemned on the pill.

    Since most of the concerns of using drugs for capital punishment involve problems with injecting the drug, an obvious alternative probably meeting constitutional muster would be for states to simply use pills rather than injections to administer drugs such as barbiturates, which are readily available and whose lethal properties are well known and very clearly established.

    “Providing the condemned with barbiturate pills to cause a quick painless death does not require any trained (much less medical) personnel, and could avoid the many medical problems with injections, as well as restrictions and expiration dates on injectable drugs,” suggests Banzhaf.

    Barbiturate pills are approved for certain medical uses, and are even covered by Medicare Part D. So the common practice of prescribing drugs for “off-label use” – using a drug approved for one purpose to do something else – would seemingly permit states to use barbiturate pills in executions, says Banzhaf.

    Oregon’s death with dignity program helps terminally ill patients end their lives simply and painlessly by providing prescriptions for Seconal (a barbiturate) pills which the patient takes himself.

    “If this method is appropriate for totally innocent elderly persons seeking death with dignity, it should be good enough for condemned murderers,” argues Banzhaf, an FDA drug law expert.

    If the prisoner refuses to take the pills, or only pretends to swallow them, he can hardly complain about unconstitutional “cruel and unusual punishment” if the state thereafter has no choice but to use lethal injections with all the risks involved. To paraphrase an old legal saying, he had the key to his own freedom from pain, says Banzhaf, who helped force the FDA to recognize nicotine as an addictive drug.

    Since only a few grams of certain barbiturates are necessary to cause death, and pills may be much harder for drug companies to restrict than liquid injectable drugs, the amount necessary to cause a quick and painless death might be administered in several easy-to-swallow pills.

    Concerns that the convict would fill his stomach with food to slow the absorption of the ingested drug aren’t valid because condemned prisoners are usually kept under constant watch at least 24 hours before the time of execution, and because any such ploy would likewise make the condemned himself responsible for any pain he might suffer if a subsequent drug-injection execution became necessary.

    Likewise, since oral administration takes somewhat longer for the drugs to reach the system than with injections, this method of capital punishment is much less likely to trigger the sudden reactions lethal injections have sometimes been said to cause.

    For example, in a recent execution in Arizona, a 63-year-old convicted killer reportedly shook for several seconds upon receiving a lethal injection of pentobarbital.

    In another execution in Ohio, the condemned man loudly gasped for air several times during his execution and took an unexpectedly long 25 minutes to finally die. His dying utterance, “I feel my whole body burning,” was widely reported, and provided more ammunition for those opposed to the death penalty.

    Using well-known, more easily available pills rather than injections for executions might overcome any constitutional objections, avoid the major problems with lethal injections highlighted by death penalty opponents, eliminate the need for medically trained personnel (who often refuse on ethical and/or professional grounds) to participate in executions, and have many other advantages, suggests Banzhaf, who has not taken a public position on capital punishment.

  2. Orin Kerr says:

    Meghan, has the U.S. Supreme Court ever said that electrocution is unconstitutional? If not, how can the reintroduction of electrocution reverse the one-way ratchet?

    • Meghan Ryan says:

      Orin–No, the Court hasn’t said that electrocution is unconstitutional. And, way back in 1890, in In re Kemmler, the Court suggested that it was a constitutional method of execution because it was a humane innovation over hanging. But the evolving standards of decency suggest that the constitutionality of a practice may change even if the Court has not declared a practice unconstitutional. (You can find my thoughts on the role of stare decisis in this context at http://ssrn.com/abstract=1209362.) If you think of the Eighth Amendment ratchet more broadly than as Justice Scalia suggested in Atkins, and instead think of it as applying based on practices rather than just the Court’s holdings, then it becomes relevant in this context of electrocution as well.

      • Orin Kerr says:


        I agree that the “evolving standards” framework allows a practice to be unconstitutional that used to be constitutional. My concern is more specifically about the one-way ratchet: I thought that the idea behind the alleged “one way ratchet” was based on the idea that allowing a practice allows an evolving societal standard to develop that would ban it, while banning a practice blocks it from adopted so there can be no societal standard to allow it. In other words, there is a “one way ratchet” because a Supreme Court precedent permanently takes a practice out of circulation.

        • Orin Kerr says:

          Oh, and should say that this is an “alleged” one-way ratchet, not necessarily a real one. I don’t think the Justices really look to public opinion or practices; my sense is that they look to what strikes them as just ‘too far’ or too punitive based on their own personal views. If that’s right, there shouldn’t be a one-way ratchet.

          • Meghan Ryan says:

            Yes, “alleged” one-way ratchet. There has indeed been significant criticism that the Court’s analysis in this area is nothing more than the individual opinions of nine Justices. While the Court has taken some liberties in its analyses, I may not be quite as skeptical as you on this point.

        • Meghan Ryan says:

          I agree. Perhaps our only difference of opinion is whether the Supreme Court must actually declare a practice as unconstitutional before it is actually unconstitutional. In the article to which I linked above, I argue that lower courts should not always be bound by what’s traditionally considered Supreme Court precedent in this context.

  3. Joe says:

    I’m not sure how it would come about & some other provision (substantive due process perhaps) very well would be violated anyway, but is the professor’s argument that if the rack somehow becomes “usual,” it would not violate the 8A? This might be covered in the article, with apologies, but honestly I think many won’t read it anyway – too many links (with or without long articles attached), too little time.

    • Meghan Ryan says:

      Thanks, Joe, for your comment. I do elaborate on this at http://ssrn.com/abstract=1211582, but the short answer is that, yes, I think a punishment must be both cruel and unusual before it is prohibited under the Punishments Clause. The Court has not clearly adopted this view in many of its recent cases, though. While my position may seem harsh, the point is that, as you concede, your scenario is highly unlikely. And if the rack were to become “usual,” then we’d likely view it much differently than we do today. And would we even consider it “cruel”? All this said, though, even those who might be inclined to accept my position might view the rack as an exception based on Americans’ view of it at the time of the Framing.

      • Joe says:


        I might avoid the term “recent” when an opinion like Coker v. GA (if not Trop v. Dulles, 1950s, specifically doubtful “unusual” provides much independent importance here) doesn’t seem to either. You also provide a suggestion about grandfathering in some banned punishments. I’m not personally a fan of such an originalist leaning approach though that might be true as to what some think. Finally, to the extent the view is basically academic, since for one reason or another the matter won’t be pressed, well … I guess that is reassuring.

    • Brett Bellmore says:

      Yes, it appears to me that the aim of the amendment was to prevent judges from getting inventive during sentences, and little more.

      • Joe says:

        If so, it should have used the word “judicial” and left out “cruel,” since that is the best way to say that the concern (with “little more”) was inventive judging, including leniency.

        “The prohibition of unusual punishments applies alike, under the qualifications already noticed, to the legislative and to the judicial power.”


        That at the very least appears to me to be clear. Cf. the 1A, which singles out Congress.

        • Brett Bellmore says:

          First of all, why would they have cared if the punishment was original, if it wasn’t also cruel?

          Second, adding “judicial” would have been redundant.

  4. The TN Attorney General was asked for his opinion on the bill to make electrocution the default method of execution if lethal injection drugs are factually unavailable. This is what he wrote: http://www.tn.gov/attorneygeneral/op/2014/op14-29.pdf Even though he claims that the bill is defensible, the last paragraph acknowledges that at least one state has found electrocution to be unconstitutional: “More recently, the Nebraska Supreme Court held that electrocution was unconstitutional under its state constitution, whose cruel-and-unusual-punishment language mirrors that of the federal and Tennessee Constitutions. See State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008). The court noted that it had upheld electrocution as constitutional as recently as 2000 but stated that its previous decision had not relied on a factual record “showing electrocution’s physiological effects on a prisoner.” The court also noted that Nebraska was the only state imposing electrocution as its sole method of execution. Mata, 275 Neb. at 32, 745 N.W.2d at 256-57.” Even if electrocution is not found to be unconstitutional as such, in TN or in the US, this “backwards” move has given people on death row a whole new set of issues to litigate!