The world has judged electrocution as inhumane
By ROBERT R. DRINAN
Does electrocution violate the ban on cruel and unusual punishment in the 8th amendment?
The U.S. Supreme Court has agreed to judge this question. No one can predict what the Supreme Court might do. If the court sustains the electric chair, would it in essence be suggesting that disemboweling, the guillotine or burning at the stake would be also permissible?
In the last nine years Florida has botched three executions. Flames shot through the head of one convict, the acrid smoke of charred flesh arose at the execution of another and the third convulsed and had a massive nosebleed.
Despite all of these events the Florida Supreme Court in September 1999 in a 4-3 decision upheld the use of the electric chair. The dissenters vehemently disagreed and added gruesome photos in their opinion.
The efficiency and humanity of electrocution have been topical since 1888 when the New York legislators replaced hanging with electrocution. In 1890 the Supreme Court sustained electrocution by ruling that the 14th amendment did not apply to conduct of this kind when done by states.
In 1984 the Supreme Court by a vote of 5-4 allowed a person to be electrocuted the second time when the chair malfunctioned the first time. In 1977 the Supreme Court struck down a death sentence imposed for rape, in part because Georgia was the only state to permit such a punishment.
If the Supreme Court is looking to usage, the consensus seems to be against the electric chair. In 1949, 26 states used it; only four states still permit it: Alabama, Florida, Georgia and Nebraska.
Of the 38 states that have the death penalty, 34 provide for lethal injection as the preferred method.
It is also noteworthy that none of the countries around the world that allow the death penalty permit electrocution. Indeed even Russia has recently commuted to life imprisonment the sentences of 700 convicts on death row.
The case in the Supreme Court could become moot if the Florida legislature, anxious to avoid an ugly display of the three botched executions, gives future death row inmates the choice of lethal injection.
But this does not seem likely. Florida has the third-largest death row in the country and is third in the number of executions. Florida also leads the country with the most identified mistakes in the use of the death penalty: Eighteen people have been released from death row after evidence of their innocence emerged. Florida also allows the execution of the mentally retarded and juveniles if they have reached the age of 17. About 45 percent of Floridas death row are members of minorities.
But the almost inexplicable act by the Supreme Court in agreeing to hear a case about the electric chair has re-focused attentions on Americas bizarre conduct of having 3,565 people on death row -- 42 of them women.
In the recent past, 82 death row prisoners have been set free after evidence of their innocence.
The arbitrary methods of prosecuting convicts in capital cases become evermore apparent. Likewise the inadequacies of counsel for their defense continue to be notorious. The cost is also enormous. The Death Penalty Information Center in Washington has established that the cost of each criminal execution averages $2.1 million.
The presence of racial discrimination in the way the death penalty is used is well documented. Recent reports from the Government Accounting Office and the American Bar Association give evidence that racial bias infects the process of prosecuting persons of color.
If a death row inmate repents, does the government still have the right to take the life of a truly contrite sinner? Texas thought so when it executed Karla Faye Tucker, even though she became a convincing born-again Christian -- bringing calls for mercy from Pope John Paul II and Pat Robertson.
The strange series of events that has led the United States to be the nation that executes more persons than any nation except China will add another anomaly when the Supreme Court examines the electric chair.
If the high tribunal should allow Florida to retain electrocution, it would give another argument to those who, citing the anguish of the victims, argue for the infliction of revenge on their murderers.
If the Supreme Court examines the merits of the argument that electrocution violates the cruel and unusual phrase in the 8th amendment, it will discover that world law has greatly expanded the scope of that phrase, adopted in the U.S. Bill of Rights in 1791. Most nations and customary international law now ban both treatment and punishment that are cruel and inhumane. Since no country outside the United States electrocutes prisoners, it is clear that the family of nations has unanimously concluded that it is inhumane.
Jesuit Fr. Robert Drinan is a professor at Georgetown University Law Center.
National Catholic Reporter, January 14, 2000