decided: April 29, 1985.
Sup. Ct. La. Reported below: 455 So. 2d 659.
[ 471 U.S. Page 1080]
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting from denial of certiorari.
The petitioner Jimmy L. Glass has been condemned to death by electrocution -- "that is, causing to pass through the body of the person convicted a current of electricity of sufficient intensity to cause death, and the application and continuance of such current through the body of the person convicted until such person is dead." La. Rev. Stat. Ann. § 15:569 (West 1981). Glass contends that "electrocution causes the gratuitous infliction of unnecessary pain and suffering and does not comport with evolving standards of human dignity," and that this method of officially sponsored execution therefore violates the Eighth and Fourteenth Amendments. Pet. for Cert. 27. The Supreme Court of Louisiana held that this claim must summarily be rejected pursuant to "clearly established principles of law" and observed that, in any event, the claim is wholly lacking in medical or scientific merit. 455 So. 2d 659, 660, 671 (1984).
I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227 (1976) (BRENNAN, J., dissenting), and would therefore grant certiorari and vacate Glass' death sentence in any event. One of the reasons I adhere to this view is my belief that the "physical and mental suffering" inherent in any method of execution is so "uniquely degrading to human dignity" that, when combined with the arbitrariness by which capital punishment is imposed, the trend of enlightened opinion, and the availability of less severe penological alternatives, the death penalty is always unconstitutional. Furman v. Georgia, 408 U.S. 238, 287-291 (1972).
Even if I thought otherwise, however, I would vote to grant certiorari. Glass' petition presents an important and unsettling
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question that cuts to the very heart of the Eighth Amendment's Cruel and Unusual Punishments Clause*fn1 -- a question that demands measured judicial consideration. Of the 42 officially sponsored executions carried out since the Court's decision in Gregg v. Georgia, supra, 31 have been by means of electrocution.*fn2 And since Gregg, an ever-increasing number of condemned prisoners have contended that electrocution is a cruel and barbaric method of extinguishing human life, both per se and as compared with other available means of execution. As in this case, such claims have uniformly and summarily been rejected,*fn3 typically on the strength of this Court's opinion in In re Kemmler, 136 U.S. 436 (1890), which authorized the State of New York to proceed with the first electrocution 95 years ago. Kemmler, however, was grounded on a number of constitutional premises that have long since been rejected and on factual assumptions that appear not to have withstood the test of experience. I believe the time has come to measure electrocution against well-established contemporary Eighth Amendment principles.
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Electrocution as a means of killing criminals was first authorized by the New York Legislature in 1888, and resulted from a lengthy investigation to identify "the most humane and practical method known to modern science of carrying into effect the sentence of death in capital cases."*fn4 In In re Kemmler, supra, this Court rejected a constitutional attack on New York's statute by William Kemmler, who was scheduled to be the first person put to death by electrocution. The Court emphasized that, because the Eighth Amendment was not applicable to the States, "[the] decision of the state courts sustaining the validity of the act under the state constitution is not reexaminable here." Id., at 447.*fn5 In dicta, the Court also followed a "historical" interpretation of the Cruel and Unusual Punishments Clause as it governed executions carried out by the Federal Government, suggesting that the constitutionality of a particular means of execution should be determined by reference to contemporary norms at the time the Bill of Rights was adopted. See id., at 446-447. In addition, the Court approvingly observed that the state court had concluded that "'it is within easy reach of electrical science at this day to so generate and apply to the person of the convict a current of electricity of such known and sufficient force as certainly to produce instantaneous, and, therefore, painless, death.'" Id., at 443 (emphasis added).
State and federal courts recurrently cite to Kemmler as having conclusively resolved that electrocution is a constitutional method of extinguishing life, and accordingly that further factual and legal
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consideration of the issue is unnecessary. See n. 3, supra. But Kemmler clearly is antiquated authority. It is now well established that the Eighth Amendment applies to the States through the Fourteenth Amendment. See, e. g., Gregg v. Georgia, 428 U.S., at 168 (opinion of Stewart, POWELL, and STEVENS, JJ.); Robinson v. California, 370 U.S. 660 (1962). Moreover, the Court long ago rejected Kemmler 's "historical" interpretation of the Cruel and Unusual Punishments Clause, emphasizing instead that the prohibitions of the Clause are not "[confined] . . . to such penalties and punishment as were inflicted by the Stuarts." Weems v. United States, 217 U.S. 349, 372 (1910). This is because "[time] works changes, [and] brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth." Id., at 373. The Clause thus has an "expansive and vital character," id., at 377, that "[draws] its meaning from the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).*fn6 Accordingly, Eighth Amendment claims must be evaluated "in the light of contemporary human knowledge," Robinson v. California, supra, at 666, rather than in reliance on century-old factual premises that may no longer be accurate.
To be sure, legislative decisions concerning appropriate forms of punishment are entitled to considerable deference. But in common with all constitutional guarantees, "it is evident that legislative judgments alone cannot be determinative of Eighth Amendment standards since that Amendment was intended to safeguard individuals from the abuse of legislative power." Gregg v. Georgia, supra, at 174, n. 19 (opinion of Stewart, POWELL, and STEVENS, JJ.); see also Weems v. United States, supra, at 371-373.*fn7 "[The] Constitution contemplates that in the end [a court's] own judgment will be brought to bear on the question of the acceptability" of a challenged punishment, guided by "objective
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factors to the maximum possible extent." Coker v. Georgia, 433 U.S. 584, 592, 597 (1977) (plurality opinion). Thus it is firmly within the "historic process of constitutional adjudication" for courts to consider, through a "discriminating evaluation" of all available evidence, whether a particular means of carrying out the death penalty is "barbaric" and unnecessary in light of currently available alternatives. Furman v. Georgia, 408 U.S., at 420, 430 (POWELL, J., dissenting).
What are the objective factors by which courts should evaluate the constitutionality of a challenged method of punishment? First and foremost, the Eighth Amendment prohibits "the unnecessary and wanton infliction of pain." Gregg v. Georgia, supra, at 173 (opinion of Stewart, POWELL, and STEVENS, JJ.). See also Coker v. Georgia, supra, at 592 (plurality opinion) (a punishment is excessive if it is "nothing more than the purposeless and needless imposition of pain and suffering"); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947) ("The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence"). The Court has never accepted the proposition that notions of deterrence or retribution might legitimately be served through the infliction of pain beyond that which is minimally necessary to terminate an individual's life.*fn8 Thus in explaining the obvious unconstitutionality of such ancient practices as disemboweling while alive, drawing and quartering, public dissection, burning alive at the stake, crucifixion, and breaking at the wheel, the Court has emphasized that the Eighth Amendment forbids "inhuman and barbarous" methods of execution that go at all beyond "the mere extinguishment of life" and cause "torture or a lingering death." In re Kemmler, 136 U.S., at 447. It is beyond debate that the Amendment proscribes all forms of "unnecessary cruelty" that cause gratuitous "terror, pain, or disgrace." Wilkerson v. Utah, 99 U.S. 130, 135-136 (1879).*fn9
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The Eighth Amendment's protection of "the dignity of man," Trop v. Dulles, supra, at 100 (plurality opinion), extends beyond prohibiting the unnecessary infliction of pain when extinguishing life. Civilized standards, for example, require a minimization of physical violence during execution irrespective of the pain that such violence might inflict on the condemned. See, e. g., Royal Commission on Capital Punishment, 1949-1953 Report para. 732, p. 255 (1953) (hereinafter Royal Commission Report). Similarly, basic notions of human dignity command that the State minimize "mutilation" and "distortion" of the condemned prisoner's body. Ibid. These principles explain the Eighth Amendment's prohibition of such barbaric practices as drawing and quartering. See, e. g., Wilkerson v. Utah, supra, at 135.
In evaluating the constitutionality of a challenged method of capital punishment, courts must determine whether the factors discussed above -- unnecessary pain, violence, and mutilation -- are "inherent in the method of punishment." Louisiana ex rel. Francis v. Resweber, supra, at 464 (emphasis added). A single, unforeseeable accident in carrying out an execution does not establish that the method of execution itself is unconstitutional. Cf. Estelle v. Gamble, 429 U.S. 97, 105 (1976). Thus in Louisiana ex rel. Francis v. Resweber, supra, the Court allowed a State to proceed with a second effort to electrocute a prisoner after a mechanical failure had interrupted the first attempt.*fn10 The Court emphasized that the initial failure had been an "unforeseeable accident," 329 U.S., at 464, and Justice Frankfurther's concurrence stressed that the failure had been an "innocent misadventure," id., at 470.
A different case would be presented, however, if the Court were confronted with "a series of abortive attempts." Id., at 471.
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This is because the Eighth Amendment requires that, as much as humanly possible, a chosen method of execution minimize the risk of unnecessary pain, violence, and mutilation.*fn11 If a method of execution does not satisfy these criteria -- if it causes "torture or a lingering death" in a significant number of cases, In re Kemmler, 136 U.S., at 447 -- then unnecessary cruelty inheres in that method of execution and the method violates the Cruel and Unusual Punishments Clause.
Because contemporary courts have summarily rejected constitutional challenges to electrocution, the evidence respecting this method of killing people has not been tested through the adversarial truthfinding process. There is considerable empirical evidence and eyewitness testimony, however, which if correct would appear to demonstrate that electrocution violates every one of the principles set forth above.*fn12 This evidence suggests that death by electrical current is extremely violent and inflicts pain and indignities far beyond the "mere extinguishment of life." Ibid.*fn13 Witnesses routinely report that, when the switch is
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thrown, the condemned prisoner "cringes," "leaps," and "'fights the straps with amazing strength.'"*fn14 "The hands turn red, then white, and the cords of the neck stand out like steel bands."*fn15 The prisoner's limbs, fingers, toes, and face are severely contorted.*fn16 The force of the electrical current is so powerful*fn17 that the prisoner's eyeballs sometimes pop out and "rest on [his] cheeks."*fn18 The prisoner often defecates, urinates, and vomits blood and drool.*fn19
"The body turns bright red as its temperature rises," and the prisoner's "flesh swells and his skin stretches to the point of breaking."*fn20 Sometimes the prisoner catches on fire, particularly "if [he] perspires excessively."*fn21 Witnesses hear a loud and sustained sound "like bacon frying," and "the sickly sweet smell of burning flesh" permeates the chamber.*fn22 This "smell of frying
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human flesh in the immediate neighborhood of the chair is sometimes bad enough to nauseate even the Press representatives who are present."*fn23 In the meantime, the prisoner almost literally boils: "the temperature in the brain itself approaches the boiling point of water," and when the postelectrocution autopsy is performed "the liver is so hot that doctors have said that it cannot be touched by the human hand."*fn24 The body frequently is badly burned and disfigured.*fn25
The violence of killing prisoners through electrical current is frequently explained away by the assumption that death in these circumstances is instantaneous and painless.*fn26 This assumption, however, in fact "is open to serious question" and is "a matter of sharp conflict of expert opinion."*fn27 Throughout the 20th century a number of distinguished electrical scientists and medical doctors have argued that the available evidence strongly suggests that electrocution causes unspeakable pain and suffering. Because "'[the] current flows along a restricted path into the body, and destroys all the tissue confronted in this path . . . [in] the meantime the vital organs may be preserved; and pain, too great for us to imagine, is induced. . . . For the sufferer, time stands still; and this excruciating torture seems to last for an eternity.'"*fn28 L. G. V. Rota, a renowned French electrical scientist, concluded after extensive research that
"[in] every case of electrocution, . . . death inevitably supervenes but it may be very long, and above all, excruciatingly painful. . . . [The] space of time before death supervenes varies according to the subject. Some have a greater physiological resistance than others. I do not believe that anyone killed by electrocution dies instantly, no matter how weak the
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subject may be. In certain cases death will not have come about even though the point of contact of the electrode with the body shows distinct burns. Thus, in particular cases, the condemned person may be alive and even conscious for several minutes without it being possible for a doctor to say whether the victim is dead or not. . . . This method of execution is a form of torture."*fn29
Although it is an open question whether and to what extent an individual feels pain upon electrocution, there can be no serious dispute that in numerous cases death is far from instantaneous. Whether because of shoddy technology and poorly trained personnel, or because of the inherent differences in the "physiological resistance" of condemned prisoners to electrical current, see n. 29, supra, it is an inescapable fact that the 95-year history of electrocution in this country has been characterized by repeated failures swiftly to execute and the resulting need to send recurrent charges into condemned prisoners to ensure their deaths.*fn30 The very first electrocution required multiple attempts before death resulted,*fn31 and our cultural lore is filled with examples of attempted
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electrocutions that had to be restaged when it was discovered that the condemned "tenaciously clung to life."*fn32 Attending physicians routinely acknowledge that electrocutions must often be repeated in order to ensure death.*fn33 It is difficult to
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imagine how such procedures constitute anything less than "death by installments" -- "a form of torture [that] would rival that of burning at the stake." Louisiana ex rel. Francis v. Resweber, 329 U.S., at 474, 476 (Burton, J., dissenting).*fn34
This pattern of "death by installments" is by no means confined to bygone decades. Here is one eyewitness account of Alabama's electrocution of John Louis Evans on April 22, 1983:
"At 8:30 p. m. the first jolt of 1900 volts of electricity passed through Mr. Evans' body. It lasted thirty seconds. Sparks and flames erupted from the electrode tied to Mr. Evans' left leg. His body slammed against the straps holding him in the electric chair and his fist clenched permanently. The electrode apparently burst from the strap holding it in place. A large puff of greyish smoke and sparks poured out from under the hood that covered Mr. Evans' face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead.
"The electrode on the left leg was refastened. At 8:30 p. m. [sic] Mr. Evans was administered a second thirty second
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jolt of electricity. The stench of burning flesh was nauseating. More smoke emanated from his leg and head. Again, the doctors examined Mr. Evans. The doctors reported that his heart was still beating, and that he was still alive.
"At that time, I asked the prison commissioner, who was communicating on an open telephone line to Governor George Wallace to grant clemency on the grounds that Mr. Evans was being subjected to cruel and unusual punishment. The request for clemency was denied.
"At 8:40 p. m., a third charge of electricity, thirty seconds in duration, was passed through Mr. Evans' body. At 8:44, the doctors pronounced him dead. The execution of John Evans took fourteen minutes."*fn35
Similarly, this was the scene at Georgia's electrocution of Alpha Otis Stephens just last December 12th:
"The first charge of electricity administered today to Alpha Otis Stephens in Georgia's electric chair failed to kill him, and he struggled to breathe for eight minutes before a second charge carried out his death sentence for murdering a man who interrupted a burglary.
". . . A few seconds after a mask was placed over his head, the first charge was applied, causing his body to snap forward and his fists to clench.
"His body slumped when the current stopped two minutes later, but shortly afterward witnesses saw him struggle to breathe. In the six minutes allowed for the body to cool before doctors could examine it, Mr. Stephens took about 23 breaths.
"At 12:26 A. M., two doctors examined him and said he was alive. A second two-minute charge was administered at 12:28 A. M."*fn36
Stephens "'was just not a conductor' of electricity, a Georgia prison official said."*fn37
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Thus there is considerable evidence suggesting -- at the very least -- that death by electrocution causes far more than the "mere extinguishment of life." In re Kemmler, 136 U.S., at 447. This evidence, if correct, would raise a substantial question whether electrocution violates the Eighth Amendment in several respects. First, electrocution appears to inflict "unnecessary and wanton . . . pain" and cruelty, and to cause "torture or a lingering death" in at least a significant number of cases. Gregg v. Georgia, 428 U.S., at 173 (opinion of Stewart, POWELL, and STEVENS, JJ.); In re Kemmler, supra, at 447. Second, the physical violence and mutilation that accompany this method of execution would seem to violate the basic "dignity of man." Trop v. Dulles, 356 U.S., at 100 (plurality opinion). Finally, even if electrocution does not invariably produce pain and indignities, the apparent century-long pattern of "abortive attempts" and lingering deaths suggests that this method of execution carries an unconstitutionally high risk of causing such atrocities. Louisiana ex rel. Francis v. Resweber, 329 U.S., at 471 (Frankfurter, J., concurring); see also n. 11, supra. These features of electrocution seem so "inherent in [this] method of punishment" as to render it per se cruel and unusual and therefore forbidden by the Eighth Amendment. Louisiana ex rel. Francis v. Resweber, supra, at 464.
Moreover, commentators and medical experts have urged that other currently available means of execution -- particularly some forms of lethal gas and fast-acting barbituates -- accomplish the purpose of extinguishing life in a surer, swifter, less violent, and more humane manner.*fn38 Several state legislatures have abandoned electrocution in favor of lethal injection for these very reasons; one of the architects of this change has emphasized that it resulted precisely from the recognition that the electric chair is "a barbaric torture device" and electrocution a "gruesome ritual."*fn39 Other States have rejected electrocution in favor of the use of lethal gas.*fn40
For me, arguments about the "humanity" and "dignity" of any method of officially sponsored executions are a constitutional
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contradiction in terms. See supra, at 1080. Moreover, there is significant evidence that executions by lethal gas -- at least as administered in the gas chamber*fn41 -- and barbituates -- at least as administered through lethal injections*fn42 -- carry their own risks of pain, indignity, and prolonged suffering. But having concluded that the death penalty in the abstract is consistent with the "evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S., at 101 (plurality opinion), courts cannot now avoid the Eighth Amendment's proscription of "the unnecessary and wanton infliction of pain" in carrying out that penalty simply by relying on 19th-century precedents that appear to have rested on inaccurate factual assumptions and that no longer embody the meaning of the Amendment. Gregg v. Georgia, supra, at 173 (opinion of Stewart, POWELL, and STEVENS, JJ.). For the reasons set forth above, there is an evermore urgent question whether electrocution in fact is a "humane" method for extinguishing human life or is, instead, nothing less than the contemporary technological equivalent of burning people at the stake.