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Is Electrocution an Unconstitutional Method of Execution? the Engineering of Death Over the Century

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Is Electrocution an Unconstitutional Method of Execution? the Engineering of Death Over the Century William & Mary Law Review Volume 35 (1993-1994) Issue 2 Article 4 February 1994 Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death over the Century Deborah W. Denno Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Constitutional Law Commons Repository Citation Deborah W. Denno, Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death over the Century, 35 Wm. & Mary L. Rev. 551 (1994), https://scholarship.law.wm.edu/ wmlr/vol35/iss2/4 Copyright c 1994 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr IS ELECTROCUTION AN UNCONSTITUTIONAL METHOD OF EXECUTION? THE ENGINEERING OF DEATH OVER THE CENTURY DEBORAH W. DENNO* INTRODUCTION ......................................... 554 I. KEMMLER 'S HISTORICAL FOUNDATIONS ............... 559 A. The Eighth Amendment's Concept of "Cruel and Unusual".... ........................... 560 B. New York's Anti-CapitalPunishment Movement 562 C. The Electrocution Act and the "Battle of the Currents".................................... 566 1. The AC-DC Controversy ................. 568 2. The Commission Recommends Electricity. 573 II. THE CREDIBILITY AND CONSEQUENCES OF KEMMLER 'S INTERPRETATION OF "CRUEL AND UNUSUAL" ............ 577 A. Kemmler I: Death by Electrocution ........... 577 B. Kemmler II: Electrocution and "The Scientific Progress of the Age" ........................ 578 1. The Evidentiary Hearings ............... 579 * Associate Professor of Law, Fordham University School of Law. B.A., 1974, University of Virginia; M.A., 1975, University of Toronto; Ph.D., 1982, J.D., 1989, University of Penn- sylvania. I am most grateful to the following individuals for their comments on this Article: Vivian Berger, Leigh Bienen, James Fleming, Robert Kaczorowski, James Kainen, Maria Marcus, Michael Martin, Joseph Perillo, Michael Radelet, and Steven Walt. These individu- als are not responsible for my mistakes or misjudgments. I give special thanks to Yvette LeRoy for contributing her invaluable research skills and suggestions throughout the prepa- ration of this Article, as well as Andrea Califano, Lowell Citron, and Jonathan Adams for their exceptional research assistance. The following individuals contributed helpful com- ments or information, for which I am thankful: Hugo Bedau, Theodore Bernstein, Daniel Capra, Jud Fischel, Martin Flaherty, Timothy Ford, Mike Hazlewood, James Lobsenz, Rich- ard Moran, Joshua Newberg, Larry Helm Spalding, and Robert Stoney. Three law firms graciously offered their briefs and other information: Carney,, Badley, Smith & Spellman; Hunton & Williams; and McGuire, Woods, Battle & Boothe. I am also grateful for the gen- erous assistance provided by the archivists at the Edison Archives, Edison National Historic Site, West Orange, New Jersey. WILLIAM AND MARY LAW REVIEW [Vol. 35:551 2. An Imprecise Definition of "Cruel and Un- usual".... ............................. 583 3. An "All or Nothing" Stance Toward Pun- ishment ................................ 585 C. Kemmler III: Upholding Electrocution as "In- stantaneous, and Therefore Painless, Death" .. 585 D. Kemmler IV: "The Possible Risk of Torture and Unnecessary Pain"... ....................... 588 E. Kemmler: "Punishments are Cruel When They Involve Torture or A Lingering Death"........ 590 F. The Content and Rationale of Kemmler ....... 592 1. The Electrocution Act Was Created to En- sure a More Humane Method of Punish- m en t ...... .............................. 592 2. The Electrocution Act Met Legislative Ap- p roval ................................. 592 3. Scientific Knowledge of Electrocution Ap- peared Both Certain and Speculative ..... 593 4. Political and FinancialForces Outweighed HumanitarianConcerns ................. 593 5. The Electrocution Act Had No Alternative Punishment ............................ 594 6. The Courts Had No Precedent or Guidance 596 7. The Courts Had No Clear Standard for "Cruel and Unusual". .................. 596 8. The Validity of the Electrocution Act Was Determined Only Under the New York State Constitution ...................... 597 G. Kemmler's Aftermath: "An Awful Botch"...... 598 1. Reasons for the Botch ................... 601 2. Reactions to the Botch .................. 603 III. THE SUPREME COURT'S EVOLVING EXECUTION JURIS- PRUDENCE ........................................ 607 A. Louisiana ex rel. Francis v. Resweber ......... 607 1. "Accidents Happen for Which No Man Is to B lam e" ... .......................... 608 2. The Executioner's Lack of Intent "Cannot Lessen the Torture" .. .................. 610 1994] ELECTROCUTION B. The Eighth Amendment's "Evolving Standards of D ecency" .... ............................ 613 C. Kemmler's PrecedentialForce ................ 616 1. Courts' Use of Kemmler to Support All Methods of Execution ................... 617 2. Courts' Use of Kemmler to Support Gen- eral Propositions........................ 620 IV. EVALUATING ELECTROCUTION AS AN ExECUTION METHOD ............................................ 624 A. The Mechanics of Electrocution .............. 626 1. Voltage and Application ............... 630 2. A Typical Leuchter Chair ............... 631 B. Evidence of Unnecessary Pain and Physical Vi- olence : ..................................... 633 1. The Early Years ........................ 633 2. Recent Research ........................ 637 C. Evidence of Mutilation ...................... 643 D. Evidence of Negligence by the State or State Of- fi cials ...................................... 645 1. Bassette in Virginia: Risking Two-Out-of Three Bungles ................ .......... 646 2. Tafero in Florida: "This Electric Chair Works Fine if You Are a Colander"....... 650 E. Fred Leuchter is Condemned ................. 654 1. The Cost and Marketing of Execution M ethods ............................... 654 2. "Dr.Death" Is No Dr................... 655 3. Are We Condemning the Messenger? ..... 661 V. POST-GREGG BOTCHED ELECTROCUTIONS ............. 662 A. Botched Electrocutions: 1979-1989 ............ 664 1. John Spenkelink (Florida,May 25, 1979) . 664 2. Frank J. Coppola (Virginia, August 10,. 1982) ........................ ......... 664 3. John Louis Evans III (Alabama, April 22, 1983) .................................. 665 4. Alpha Otis Stephens (Georgia, December 12, 1984) ............... ............... 667 5. William E. Vandiver (Indiana, October 16, 1985) .................................. 667 554 WILLIAM AND MARY LAW REVIEW [Vol. 35:551 B. Botched Electrocutions: 1989-1992 ............ 668 1. Horace F. Dunkins (Alabama, July 14, 1989) .................................. 668 2. Jesse Joseph Tafero (Florida,May 4, 1990) 670 3. Richard T. Boggs (Virginia, July 19, 1990) 670 4. Wilbert Lee Evans (Virginia, October 17, 1990) .................................. 670 5. Derick Lynn Peterson (Virginia, August 22, 1991) ......... ........................ 672 6. Roger Keith Coleman (Virginia, May 20, 1992) .................................. 674 C. The Impact of Botches on the Courts ......... 674 VI. Is ELECTROCUTION "FAR WORSE" THAN HANGING OR SHOOTING? . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 676 A. Hanging ........... .................... 678 1. Historical Overview ..................... 679 2. Indignities ............................. 681 3. The Hanging of Westley Allan Dodd ..... 683 B . Shooting .................................... 687 CONCLUSION ............................................... 690 INTRODUCTION On May 4, 1990, at 7:13 a.m., Jesse Joseph Tafero became the 219th person to die in Florida's electric chair.' His execution was "gruesome. ' '2 For four minutes, the hooded executioner applied three 2,000-volt jolts of electricity to Tafero's body.' Until the last jolt Tafero "continued to clench his fists, nod, convulse and appear to breathe deeply . as if he were alive."4 Tafero's execution was particularly controversial because the jolts sparked a fire on his 1. STEPHEN TROMBLEY, THE EXECUTION PROTOCOL: INSIDE AMERICA'S CAPITAL PUNISHMENT INDUSTRY 44-46 (1992). 2. Id. at 44 (characterizing Tafero's execution as "probably the most gruesome in U.S. history"); Cynthia Barnett, Tafero Meets Grisly Fate in Chair, GAINESVILLE SUN, May 5, 1990, at 1A, 9A (quoting an Associated Press reporter who witnessed Tafero's execution, stating that the incident "was, in a word, gruesome.... I've never seen anything like this . .1'). 3. Cynthia Barnett, A Sterile Scene Turns Grotesque, GAINESVILLE SUN, May 5, 1990, at IA; Barnett, supra note 2, at 1A. 4. Barnett, supra note 2, at IA. 1994] ELECTROCUTION 555 head with six- to twelve-inch flames 5 that filled the execution chamber with smoke.6 The fire also caused ashes,7 "flames and smoke clouds to fly from [Tafero's bobbing] head during each of the three surges" while "his throat produced gurgling sounds."" Witnesses and reporters were shocked by the incident,10 which created statewide headlines the next day 11 There were varying ex- planations for why the fire occurred, and why the first jolt failed to kill as intended.12 Some experts said that the synthetic sponge in Tafero's headset did not properly conduct electricity and burst into flames with each jolt.1" Another expert testified that the head and leg electrodes were in "questionable" condition because Flor- ida's superintendent of prisons had rejected new equipment con- sidered to be too costly 14 The expert declined the superintendent's subsequent request
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