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.