Federal Judiciary

Last state’s electric chair-only execution ended

By Akin Gump Supreme Court Practice Group

The Supreme Court of Nebraska — the last state to allow the death penalty to be carried out only by electrocution — on Friday struck down that method, relying on the state’s constitution.  The 6-1 ruling, because it is based solely on state law, would not be reviewed by the U.S. Supreme Court. 

The state court’s 69-page majority opinion and 17-page dissent can be found at this link.  The decision came in the case of State v. Mata (S-05-1268).

The ruling, written by Justice William Connolly, declared: “We recognize the temptation to make the prisoner suffer, just as the prisoner made an innocent victim suffer. But it is the hallmark of a civilized society that we punish cruelty without practicing it.  Condemend prisoners must not be tortured to death, regardless of their crimes.  And the evidence clearly proves that unconsciousness and death are not instantaneous for many condemned prisoners.  These prisoners will, when electrocuted, consciously suffer the torture that high voltage electric current inflicts on the human body.  The evidence shows that electrocution inflicts intense pain and agonizing suffering. Therefore, electrocution as a method of execution is cruel and unusual punishment in violation of the Nebraska Constitution.”

Chief Justice Michael Heavican dissented from that part of the ruling, but joined the majority on a variety of other issues in the case — including ruling that the inmate involved, Raymond Mata, Jr., could be executed for the killing of a three-year-old boy. The death sentence, however, was stayed.

The Court said that, when the state moves for an execution date to be set, it will be required at that time “to demonstrate that a constitutionally acceptable method of carrying out Mata’s sentence is available.”  That appears to leave it to the state legislature to adopt an alternative to the electric chair.  (UPDATE 2:45 p.m. On Thursday, the state legislature’s Judiciary Committee voted to advance a bill, LB 1063, that would abolish the death penalty and substitute life without possibility of parole.  The legislature has only one house.)

Justice Connolly’s opinion for the Court noted that the U.S. Supreme Court, under the U.S. Constituton’s Eighth Amendment, had upheld execution by the electric chair in 1890, in the case of In re Kemmler, and that the Supreme Court had last addressed the constitutionality of any method of execution in 1946 (Francis v. Resweber).

Those decisions, the state court said, “do not constitute a dispositive response to the issue” of electrocution as an unconstitutional method of execution, “in light of modern knowledge about” that method.  “Because we are now presented with evidence of a nature and quality that the Supreme Court never considered when it held electrocution was not cruel and unusual punishment, we cannot rationally defer to federal precedent,” it concluded.

Thus, the state court turned to its own state constitution to decide the issue, rejecting the suggestion of the dissenting judge that it should uphold electrocution and thus allow Mata to appeal to the U.S. Supreme Court to challenge that method.

The state constitutional provision involved - Article I, Section 9 – is the same as the U.S. Constitution’s Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”  The state court commented: “Obviously, we cannot, under the U.S. Constituiton, declare that electrocution violates its cruel and unusual punishment provision because the U.S. Supreme Court has held otherwise.”

Full post as published by SCOTUSBLOG on February 08, 2008 (boomark / email).