Jurisprudence

The Electric Chair Is Back and the Death Penalty Is on Life Support

An electric chair
3D render by AlexLMX/iStock/Getty Images Plus

On Thursday, David Earl Miller became the second person in the last five weeks to choose death in Tennessee’s electric chair over lethal injection. Miller was executed for the 1981 murder of 23-year-old Lee Standifier.

After losing a lawsuit claiming he had a right to be executed by a firing squad, Miller took advantage of a state law allowing death row inmates convicted prior to 1999 to opt for the electric chair rather than lethal injection. He did so because he feared that the state’s lethal injection protocol, which includes midazolam, a drug that has been involved in several botched executions, would result in a more prolonged and painful death than would electrocution.

The real significance of the return of the electric chair, though, would be missed if we saw it only as a loss of faith in lethal injection by death row inmates. It signals a larger crisis for the death penalty system in the United States.

Hailed as a humane alternative to hanging, which had long been America’s preferred method of execution, the electric chair was first adopted in 1888 by New York state. It decided to use electrocution following the report of a commission charged with reviewing possible alternatives to hanging. The so-called Gerry Commission concluded that “The most potent agent known for the destruction of human life is electricity. … The velocity of the electric current is so great that the brain is paralyzed; it is indeed dead before the nerves can communicate a sense of shock.”

William Kemmler, the first person scheduled to die in the new electric chair, was dubious about this conclusion. He sued, claiming that its use would violate the Constitution’s ban on cruel and unusual punishment. When the United States Supreme Court eventually considered his claim, it echoed the conclusions of the Gerry Commission and allowed the execution to proceed. Unfortunately, Kemmler, not the commission or the court, was right about the electric chair. His execution was horribly botched.

Yet, in spite of Kemmler’s experience, the electric chair quickly became very popular. From the start of the 20th century until the 1980s, the number of death sentences carried out by electrocution far outstripped those carried out by other methods, including hanging, the firing squad, and the gas chamber.

Two factors combined to change this situation and relegate the electric chair to a marginal place among America’s execution methods. First was the development of lethal injection, adopted by the state of Oklahoma in 1977 and first used in Texas in 1982. Lethal injection seemed to make execution “cleaner” and “more painless” than it had ever been. It offered an attractive alternative to the “inhumanity, visceral brutality, and cost” of the electric chair, according to state legislators. The modern death chamber came to resemble a hospital room and executioners seemed like medical professionals.

Several dramatic botched executions in Florida also contributed to the sharp decline in electrocutions. Included were two executions in which inmates caught fire as they were being put to death in what Floridians referred to as “Old Sparky.” Following those botched executions, other states reconsidered the electric chair. For example, in 2001 the Supreme Court of Georgia decided that electrocution was cruel and unusual punishment under its state constitution. In that opinion, Justice Carol W. Hunstein said that “death by electrocution, with its specter of excruciating pain and its certainty of cooked brains and blistered bodies,” was no longer compatible with contemporary standards of decency.

The Supreme Court of Nebraska followed suit seven years later and used similarly vivid language to characterize the electric chair. “Burning of the prisoner’s body is an inherent part of an electrocution,” the court said. Echoing the ways 19th century proponents of the electric chair had characterized hanging, it found that electrocution “inflicts intense pain and agonizing suffering.”

Today, nine states retain the electric chair as a legally allowable method of execution. Since 1980, only 11 percent of American executions have involved the electric chair. Most of the other countries that have capital punishment choose one method of execution and stick with it. In contrast, since the late 19th century, the United States has used five different methods of execution: hanging, electrocution, lethal gas, the firing squad, and lethal injection. The death penalty has been sustained by the hope of making progress in the grim business of putting people to death. Indeed, its legitimacy is closely linked to the search for a technological magic bullet to insure the safety, reliability, and humanity of execution.

Even though Miller became just the 16th person put to death by electrocution in the United States since the turn of the 21st century, a period in which there have been 873 lethal injections, the return of the electric chair and other previously abandoned methods of execution signifies more than just the severity of lethal injection’s current problems. This back-to-the future moment suggests that the United States has reached the end of the road in the search for ever-better execution methods. It highlights the shaky ground now occupied by America’s death penalty.