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September 04, 2007

Electric Chair is Under Debate

“What constitutes cruel and unusual punishment?” This question is being debated today at the Nebraska Supreme Court. The defendant kidnapped and murdered a three-year old boy and fed the child’s remains to his dog. He now challenges his double death sentence as unconstitutional.


In Nebraska, the electric chair is the only means of execution. Because it is the only state to use only the chair, the Nebraska Supreme Court will have to determine just what is meant by “cruel and unusual.” It won’t have much help from the U.S. Supreme Court.

The phrase “cruel and unusual punishment” from the Eighth Amendment is usually treated to invalidate a specific punishment if any of certain criteria are met. Specifically, (1) whether the method of punishment is inherently cruel or severe, (2) whether the punishment is excessive, disproportionate, or unnecessary, (3) whether the punishment is unacceptable to society, and (4) whether the punishment is being inflicted arbitrarily.

It is likely that criteria (1) and (2) correspond to judicial theories of “cruel” and that (3) and (4) correspond to judicial theories of "unusual," but that is far from clear in Supreme Court jurisprudence. For example, Chief Justice Warren wrote in a plurality opinion in 1958 that the meaning of "unusual" had not been examined by the court, but that he thought it should be taken to mean something different from that which was generally done.

If that were the rule, it is likely that Nebraska would have no choice but to lose the electric chair. Unfortunately (or fortunately, depending on what you think about the death penalty), there is no clear rule about the Eighth Amendment.

The 1972 case Furman v. Georgia is probably the best source of info on the meaning of "unusual" as several justices mention it in their concurring and dissenting opinions. Unfortunately, they agreed with the result but couldn't come to an agreement on the reasoning. All five justices who agreed wrote his own opinion, but none of them agreed with each other. All four dissenting justices also wrote their own opinions, but they at least concurred with each other (with the exception of Blackmun who couldn't get anyone to join his opinion).

It left us with no clear understanding of how the lower courts should construe the term "unusual." Justice Douglas wrote that "unusual" meant that punishments could not be arbitrarily or discriminatorily imposed. Under this standard, Nebraska’s choice to use the chair is fine, so long as it applies to all death penalty defendants.

Justice Stewart wrote that "unusual" referred to punishments which were only infrequently imposed. This standard probably applies to any means of capital punishment. It’s difficult to claim that executions occur “frequently” even in places like Texas and Oklahoma which go on the occasional killing spree.

Justice Marshall wrote that since "unusual" had never been treated differently than "cruel," then a brand new punishment should not be invalidated so long as it wasn't more cruel than other punishments. It’s not clear that this will help Nebraska’s Supreme Court.

Chief Justice Burger (dissenting) didn't really think that "unusual" meant anything apart from cruel. It was his view that the Constitution prohibited all punishments of "extreme and barbarous cruelty," regardless of how frequently or infrequently imposed. Essentially he read the phrase as "no cruel punishment" and couldn't be bothered to separately find that a punishment is "unusual" in addition to "cruel" as would textually be required by the Eighth Amendment.

Of course, Nebraska has its own caselaw as it applies to its state constitutional prohibition on cruel and unusual punishment. The courts will have to satisfy both the state understanding of the phrase and satisfy the federal prohibition before it can resume executions.

h/t Jeralyn Merritt of Talkleft

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posted by Gabriel Malor at 02:35 PM

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