Efforts to reinstate electric chair may face court trouble

Legal experts said the move could open the door to legal challenges, or even the end of executions in Alabama


By Tim Lockette
The Anniston Star

MONTGOMERY — Alabama lawmakers hope to save the death penalty by bringing back the electric chair, but legal experts said the move could open the door to legal challenges, or even the end of executions in Alabama.

"Lawyers from all over the country will assemble to take on cases against electrocution,” said Sharon Dolovich, a law professor at the University of California in Los Angeles. “You'd be able to bring out all the horrible evidence about people frying in the chair.”

Earlier this month, the Alabama House of Representatives passed a bill that would require the use of the electric chair to kill condemned inmates if the U.S. Supreme Court declares lethal injection unconstitutional, or if the state runs out of the drugs needed to conduct an execution.

Both outcomes are possible this year. Executions in Alabama are effectively on hold until the U.S. Supreme Court reviews an Oklahoma case challenging the use of the drug midazolam in executions, on the grounds that it constitutes cruel and unusual punishment. Midazolam, which is also part of Alabama’s execution protocol, was used in a botched execution last year in which Oklahoma inmate Clayton Lockett lived for 43 minutes after being injected.

Drug makers themselves are also putting the squeeze on lethal injection. After the pharmaceutical company Akorn was named in court documents as a possible maker of Alabama’s midazolam, the company asked for the state to return any drugs it bought for that purpose.

In a statement to The Star last week, the drug company Mylan also expressed its opposition to the use of its drugs to kill inmates. Mylan is a maker of rocuronium bromide, another drug in Alabama’s lethal injection protocol, though the drugmaker said it never directly sold any rocuronium to the state.

Alabama’s electric chair, nicknamed “Yellow Mama,” has been in storage for more than a decade. It was the only method of execution until 2002, when state law allowed inmates to choose between electrocution and lethal injection. Every inmate since has chosen the gurney over the chair.

Supporters of the current electric chair bill said it will save capital punishment from obsolescence. They said death penalty opponents, through suits and boycotts against lethal injection, run the risk of crowding out the least painful form of execution.

“My understanding is that we adopted lethal injection because it was more humane,” said Sen. Cam Ward, R-Alabaster, sponsor of the Senate version of the electric chair bill. “It’s what we’d all prefer.”

Saving capital punishment

The advantage of the electric chair, Ward said, was that it has never been struck down by the Supreme Court, despite past legal challenges.

But one question lingers. If the court finds it cruel and unusual to inject inmates with deadly drugs, can a ruling against the chair — with its own history of botched executions — be far behind?

Ward said that about half the lawyers he’s spoken to about the issue expect significant legal challenges to the electric chair. Still, he expects fewer delays than with lethal injection, which can be challenged every time the drug combination changes.

“We’ve had more challenges with the drug cocktails than we ever had with the electric chair,” he said.

Thirteen years ago, however, lawmakers seemed convinced a ruling against the death penalty was imminent. Back then, Alabama was one of only two states still using the chair as the sole means of execution. Other states were rapidly switching to lethal injection, largely because of high-profile mishaps, such as a 1999 incident when flames rose from a Florida inmate’s head during an execution.

“If we don't pass this bill, we're not going to have a death penalty in Alabama at all,” then-Sen. Hinton Mitchem told the Associated Press in 2002, as he was pushing a lethal injection bill through the Senate.

Evolving standards

In fact, a court ruling against the chair wasn’t exactly right around the corner. Nebraska retained the electric chair until 2008, when the Nebraska Supreme Court rejected it under a state constitutional ban on cruel and unusual punishment: a ban almost identical to the one that appears in the Eighth Amendment to the U.S. Constitution.

“Besides presenting a substantial risk of unnecessary pain, we conclude that electrocution is unnecessarily cruel in its purposeless infliction of physical violence and mutilation of the prisoner's body,” the justices wrote.

In the Nebraska case, the court found that electrocution can burn inmates’ bodies, that it doesn’t necessarily kill instantly, and that some inmates have lived through the initial prescribed jolt of electricity. Much of that evidence wasn’t available to the U.S. Supreme Court when it considered its first challenge to electrocution, back in 1890 when the chair was first introduced as an alternative to hanging.

Since then, law professors said, the nation’s highest court has rarely taken up cases that challenge an execution method as unconstitutionally cruel. And the Supreme Court has never shot any method down.

"It's difficult to say with any degree of certainty," said Meghan Ryan, who teaches Eighth Amendment law at Southern Methodist University's law school. "It's true they've never ruled against it, but the court also considers 'evolving standards of decency' in these cases."

The court doesn’t consider the “unusual” part of “cruel and unusual” separately, Ryan said. Still, the rarer a punishment, the more likely the court will say it doesn’t fit modern standards of decency.

“If you look simply at the number of states using a method, the outlook for the electric chair isn’t good,” Ryan said.

Dolovich, the UCLA professor, said it might not take a Supreme Court case to end execution. If lower federal courts reject it with no disagreement between them, the Supreme Court might not take up the issue at all. While Supreme Court opinions are hard to predict, she said, there’s a “good chance” there will be rulings against the chair in other federal courts.

Ryan said the current situation, with states reverting to older methods of execution to avoid problems with lethal injection, is unusual in history.

“For the most part, the movement has always been forward, to methods we felt were more humane,” she said.

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