In 1999, following a series of horribly botched electric-chair executions in Florida, Virginia, and other southern states, the Supreme Court of the United States granted certiorari in Bryan v. Moore to resolve whether execution by electrocution violates the Constitution’s prohibition on cruel and unusual punishment. The Court never answered that question. Though there is little doubt that the Supreme Court, as then composed, would have held that execution via electrocution constitutes cruel and unusual punishment, the State of Florida mooted the case by enacting a lethal injection alternative. Since then, virtually all executions—including the 13 federal executions carried out during the waning months of the Trump administration—have been by lethal injection. That may be about to change.
In May 2021, South Carolina became the first state to revert to an execution method previously abandoned as torturous and cruel. Claiming an inability to obtain lethal injection drugs, the General Assembly passed, and the governor signed, legislation not only authorizing but mandating executions by electrocution and the firing squad. A handful of other active death penalty jurisdictions have authorized these once-abandoned methods, but South Carolina is the only state thus far to revert to these methods as the default means of execution. Because the state is either unable to carry out executions by lethal injection or uninterested in doing so, South Carolina prisoners now may choose between death by electrocution or gunshot. If a prisoner does not choose, the prisoner will die in the state’s electric chair, which was acquired in 1912.
This new execution mandate is at odds with more than 100 years of states implementing more humane ways to carry out sentences of death. For most of that century, in method-of-execution challenges, the U.S. Supreme Court has applied the well-known Eighth Amendment interpretative principle of “evolving standards of decency that mark the progress of a maturing society,” first enunciated in dicta by Chief Justice Earl Warren in Trop v. Dulles, 356 U.S. 86, 101 (1958), a non-death-penalty case. The current Court appears to have abandoned that principle. Thus, litigators wishing to challenge outdated methods of execution by leveraging the developments of a maturing society will have to decide between challenging the Court’s recent resistance to the evolving-standards inquiry or raising method-of-execution claims under their state constitutions.
The desire to implement more humane methods of execution has a deep history. From the founding of the republic, and through the 19th century, hanging was the dominant method of execution in the United States. By the middle of the century, nearly all states and territories executed prisoners by hanging. If the “long drop” was calculated correctly, the prisoner’s neck fractured once the rope tautened, and death was quick. But most hangings did not produce the so-called “hangman’s fracture.” Instead, the rope strangled the prisoner, causing a slow and painful death. Sometimes, the opposite happened: The drop was too long, and the result was decapitation.
In the late 1800s, the governor of New York urged the state legislature to provide a more humane alternative to hanging. In 1886, he appointed a commission to find the “most humane and practical method known to modern science of carrying into effect the sentence of death.” At that time, Thomas Edison and George Westinghouse were engaged in a “battle of the currents” over who would power the country—Edison with his direct current system (DC) or Westinghouse with his alternating current (AC). A New York commission member, Alfred Southwick, became an advocate for executing people by electrocution after witnessing a man die in what Southwick believed to be an instantaneous and painless manner by inadvertently touching an electric generator. Southwick solicited Edison’s opinion on the matter. Though against capital punishment, Edison used the request as an opportunity to link Westinghouse’s AC system to the idea that electricity can cause death, believing this would lessen consumer demand for AC. Writing to the commission’s chairman, Edison explained that AC could, “even by the slightest contacts, produce[] instantaneous death.” Thus, commercial interests—not science—played the leading role in the commission’s ultimate recommendation to replace hanging with electrocution.
William Kemmler was the first person to die in New York’s new electric chair in 1890. Although he had challenged the method as unconstitutional, the U.S. Supreme Court allowed Kemmler’s execution to go forward, reasoning without scientific support that it was possible to “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.” As he was strapped into Auburn Prison’s electric chair, Kemmler said to his executioners, “Take your time and do it all right.” The warden reassured Kemmler he would feel no pain.
The first 17-second jolt of 1,000 volts of electricity did not kill Kemmler. A second burst of 2,000 volts eventually did, but witnesses reported that blood vessels burst beneath Kemmler’s skin. His hair and skin were visibly singed, and the stench of burned flesh permeated the room. Several spectators present to watch the new age of executions tried unsuccessfully to leave the room. One shouted, “For God’s sake kill him and have it over.” The newspapers described it as an “awful spectacle” and “far worse than hanging.” Westinghouse opined that New York (and Kemmler) would have been better off to have executed Kemmler with an ax.
Despite Kemmler’s gruesome execution, other states still deemed electrocution to be superior to hanging and began buying or building their own electric chairs. Ohio switched from hanging to electrocution in 1896; Massachusetts switched in 1898; New Jersey in 1906; Virginia in 1908; North Carolina in 1909; and Kentucky in 1910. Two years later, South Carolina adopted the method and purchased an oak and copper electric chair for $2,800. By 1949, every state executing people was doing it by electrocution, though North Carolina also had a gas chamber. When confronted with an ex post facto challenge to South Carolina’s transition from hanging to electrocution, the Supreme Court reasoned that the change did not increase the prisoner’s punishment because it was “the consequent of a well grounded belief that electrocution is less painful and more humane than hanging.” Thus, electrocution became and remained the dominant method of execution in the United States for most of the 20th century.
As was true with hanging, and as was obvious from Kemmler’s case, electrocution often failed to produce the quick and painless death its supporters promised. Willie Francis, one of the few people to survive an execution, described the feeling of being electrocuted as “a hundred and a thousand needles and pins were pricking in me all over and my left leg felt like somebody was cutting it with a razor blade.” After the first jolt, Francis was confused whether he was alive or not, but quickly realized it was the former once he felt the needles once more. Due to a mechanical error, the chair failed to kill Francis, and his execution was called off. Francis’s reprieve was short lived. He was executed a year later after the Supreme Court found no constitutional error in allowing Louisiana another opportunity to execute Francis in its electric chair.
In 1982, Virginia executed Frank Coppola. After the second jolt, Coppola’s head and leg burst into flames, filling the death chamber with smoke and the smell of burning flesh. One year later, John Louis Evans caught fire in Alabama’s electric chair, “Yellow Mama.” He finally died after three jolts and 14 minutes. Two years after Evans, William Vandiver endured five jolts and 17 minutes in Indiana’s electric chair. More infamously, in 1997 Pedro Medina caught fire in Florida’s electric chair, causing flames to shoot about a foot from the side of his head. Two years later, lightning struck twice in Florida when Allen Lee Davis was executed. After being hit with 2,300 volts, blood poured down Davis’s face and the strap around his face partially asphyxiated him during the electrocution. These botched executions were the factual predicate for the Supreme Court’s grant of certiorari to resolve whether the electric chair amounts to cruel and unusual punishment, which Florida stymied by switching to lethal injection. The 2002 execution of Lynda Lyon Block in Alabama’s electric chair marked the last time someone was electrocuted without another available option in the United States. Since then, 13 people (out of 760 total executions in the same period) have made the decision to die in the electric chair: 6 in Tennessee, 5 in Virginia, and 2 in South Carolina. Many of these 13 people were seriously mentally ill.
Lethal injection was first embraced as a more humane alternative to electrocution in 1977 when Oklahoma passed an execution law replacing electricity with drugs. All other death penalty jurisdictions eventually did the same. Courts, too, have accepted lethal injection as the most humane method, despite accounts that it does not yield the painless death many thought it did. During the recent wave of federal executions at the end of the Trump presidency, the Court embraced lethal injection in no uncertain terms: The lethal injection drug pentobarbital has “been adopted by five of the small number of States that currently implement the death penalty”; “been used to carry out over 100 executions, without incident”; “been repeatedly invoked by prisoners as a less painful and risky alternative to the lethal injection protocols of other jurisdictions”; and “been upheld by numerous Courts of Appeals against Eighth Amendment challenges similar to the one presented here.” In short, society’s evolving standards of decency have settled on lethal injection as the most humane method of execution.
Hanging, electrocution, and lethal injection have been the dominant methods of execution in American history. The firing squad has been sparingly used by several western states and the military. From 1900 to today, the firing squad has been used only 35 times, accounting for less than half of 1 percent of the 9,076 executions during that period. In the last half century, the firing squad has been used three times in the United States, equal only to the number of hangings. In 2020, eight countries executed people by firing squad: China, Iran, North Korea, Oman, Qatar, Somalia, Taiwan, and Yemen. Execution by firing squad also is the preferred method of the Taliban.
Executions by firing squad can go horribly wrong. At Wallace Wilkerson’s execution in the late 1800s, he flinched, displacing the target about an inch above his heart. Three bullets hit the displaced target and one bullet hit his arm, causing Wilkerson to bleed out in pain for more than 15 minutes before he died. At Eliseo Mares’s 1951 execution, the executioners shot the wrong side of Mares’s chest, causing him, too, to slowly bleed to death. Supporters of execution by firing squad maintain that problems like these are unlikely to happen with appropriate protocols. Even under the best circumstances, however, when a person is shot in the chest, he or she will remain sensate while the oxygen in the brain dissipates.
The shift away from crueler methods of execution has been accompanied by waning enthusiasm for the death penalty in general. Since 2000, death sentences have declined by more than two-thirds. In 1998, the “high-water mark” for the modern American death penalty, 295 people were sentenced to death. One year later, 279 people were sentenced to death, and in 2000, the number was 223. Twenty years later, in 2020, only 18 people were sentenced to death. While the COVID-19 pandemic made 2020 exceptional in some respects, death sentences were already on the decline: In 2018, 43 people were sentenced to death, and in 2019, there were 34 new death sentences. Similarly, executions have dramatically declined in the last two decades. In 1998, 68 people were executed. The next year, 98 people were executed, and in 2000, 85 people were executed. Twenty years later, 17 people were executed in 2020, 22 people in 2019, and 25 in 2018. Public opinion, too, has been shifting against the death penalty. Roughly 80 percent of Americans favored the death penalty in the late 1990s, and the most recent poll suggests that number has dropped to 60 percent. When the poll question includes the option of life without parole, only 36 percent of people support the death penalty, down from 56 percent in 1985. Today, most jurisdictions either have no death penalty or a moratorium on executions.
The last few decades have shown a decline in the use and popularity of the American death penalty. People often ask why. Common answers include lower crime rates, death-row exonerations, the significant financial cost of imposing and carrying out death sentences, better legal defense counsel, and the widespread adoption of life without parole as a sentencing alternative. All of these have been instrumental in the death penalty’s decline. However, a significant number of people have had enough with the basic concept of the government killing human beings, purportedly on its citizens’ behalf. A growing number of Americans have come to understand that our nation’s continued “tinker[ing] with the machinery of death,” as Justice Blackmun put it, is fundamentally misguided and an affront to basic principles of human dignity. Indeed, South Carolina and other states have long claimed they cannot obtain lethal injection drugs because pharmaceutical companies refuse to participate in executions by providing the drugs. Whether this is actually true—and what efforts these states have actually made to obtain drugs for lethal injections—is called into question by the fact that other states have continued to carry out executions by lethal injection. Thus, whether it is a drug shortage or lack of effort is still an open question. Reverting to methods of execution previously rejected by society, as South Carolina recently did, will make the brutality of executions more apparent and will likely drive many Americans still “on the fence” on the death penalty issue into the camp of those calling for its end.
The move toward more humane methods of execution and, ultimately, away from capital punishment over the last 150 years reflects the Eighth Amendment’s “evolving standards of decency that mark the progress of a maturing society.” Under the standard, the Supreme Court gives meaning to the phrase “cruel and unusual punishment” by looking to “objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question.” Actual “practices are an important part of the Court’s inquiry into consensus,” as is “the consistency of the direction of change.” Indeed, under the original meaning of the Eighth Amendment, a punishment could become “unusual” by being “disallowed by legislative reform.” In other words, some punishments that were once constitutional may no longer be, after society realizes their cruelty. If this framework did not exist, “the Eighth Amendment would impose no impediment to the execution of 7-year-old children today.” As Justice Stevens observed, the meaning of the Eighth Amendment “is a matter for continuing debate; but that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text.” The current Court, however, has disagreed.
Notwithstanding the constitutional tenet of evolving standards of decency, dwindling support for the death penalty, and the long history of states implementing more humane methods of execution, the Supreme Court has recently decided that the period of more than 200 years between 1791 and today has little to do with what constitutes a cruel and unusual method of execution. In 2019, the Supreme Court in Bucklew v. Precythe, 139 S. Ct. 1112, allowed an execution by lethal injection almost entirely based on the meaning of the Eighth Amendment as it was understood at the time of its ratification. The Court said nothing about the evolving standards of decency and instead held that the Eighth Amendment forbade punishments that “intensified the sentence of death with a (cruel) superaddition of terror, pain, or disgrace.” A prisoner challenging the method of execution under the Eighth Amendment is required to identify a “feasible, readily implemented alternative procedure that would significantly reduce a substantial risk of severe pain.” What if such a method does not exist, or what if a state says it is unable to find drugs for lethal injection and can only perform executions by electrocution or firing squad? Is the societal rejection of those methods irrelevant? The jury, so to speak, is currently out on those questions, and it remains to be seen how the current conservative Court will view methods that have been largely rejected by society, such as hanging, firing squad, or electrocution.
Alternatively, if death-sentenced prisoners are reluctant to raise their method-of-execution claims in federal court, they can do so in state court. This strategy was successfully used by petitioners in Georgia and Nebraska. After declaring that there was no evidence to suggest the electric chair causes instantaneous death, the Nebraska Supreme Court held that electrocution is unconstitutional because it mutilates the prisoner’s body and causes “intense pain and agonizing suffering.” It concluded that “condemned prisoners must not be tortured to death, regardless of their crimes.” The Georgia Supreme Court went further, holding that electrocution is unconstitutional regardless of pain because the prisoner’s body is sure to be mutilated. It described the mutilation in vivid detail: Electrocuted prisoners’ bodies are “burned and blistered with frequent skin slippage” and their brains are “destroyed” after being cooked at 135 degrees Fahrenheit. The Georgia Supreme Court also relied on the fact that a more humane alternative, lethal injection, was available and used in other states. Even though the U.S. Supreme Court has played the largest role in shaping the American death penalty, the results out of Georgia and Nebraska reveal how state courts can be arenas for change.
After William Kemmler was literally cooked to death in Auburn Prison’s electric chair, a leading New York newspaper observed, “the age of burning at the stake is past; the age of burning at the wire will pass also.” Since then, every death penalty jurisdiction in the country has sought to implement more humane methods of execution, culminating with a consensus among the states, the federal government, and the public that lethal injection is the most humane method of execution available today. Despite this, in June 2021, the South Carolina Department of Corrections came within days of executing two men in the state’s electric chair—the same chair purchased in 1912. The state was acting on its new law that allowed it to bypass the prisoner’s wish to die by lethal injection. After a federal court refused to stop the electrocutions, the state supreme court stayed the executions but only because the prisoners were not given the option to die by firing squad. As of November 2021, the South Carolina Department of Corrections had yet to announce it can perform executions by firing squad, but multiple news organizations have reported that the prison is in the process of updating its capital punishment facility to house shooting executions.
As society’s standards evolve, execution drug shortages may well continue, and states will be forced to make some difficult decisions. Do they eliminate the death penalty, as many have already done; halt executions until a truly humane method of carrying out the ultimate penalty can be developed (which is unlikely); or return to 19th-century methods of execution previously discarded as barbaric, as South Carolina has done? Whatever the case, it will likely be done with little oversight from the Supreme Court. We will learn in the coming months and years how state courts and the American people feel about these “developments.” The response will tell the tale of whether we have actually evolved with respect to how we treat those condemned to die.
