Cruel and Unusual Punishment

Convicted killer Kenneth Spivey's attorneys argued that Spivey's impending death in Georgia's electric chair constituted cruel and unusual punishment under the EIGHTH AMENDMENT and the FOURTEENTH AMENDMENT to the Constitution of the United States. In a March 2001 opinion that initially stayed s punishment, Justice Leah J. Sears wrote, "Electrocution offends the evolving standards of decency that characterize a mature, civilized society." Spivey v. State of Georgia, 544 S.E. 2d 136 (Ga. 2001). Georgia's attorney general and a county prosecutor asked the court for reconsideration. In October of the same year, the Georgia Supreme Court outlawed electrocution as a means of execution in the state because it was deemed cruel and unusual punishment under the state constitution and because of the implications of the state's year 2000 revised CAPITAL PUNISHMENT statute (Dawson v. State of Georgia, 554 S.E. 2d 137 [Ga. 2001]). The 4–3 ruling gave momentum to the movement against death by electrocution elsewhere, but the U.S. Supreme Court continued to refuse appeals of this nature, leaving the decision in the hands of state courts and legislatures.

In early May 2001, several radio stations, including WYNC in New York, aired audiotapes of electrocutions in Georgia's prisons spanning a period from 1983 to 1998. The recordings were made by state officials to protect themselves from litigation over the manner in which they followed policies to ensure smooth executions. The tapes were devoid of emotion and merely recorded the voices of the executing officials during the process. There were no shouts or cries of pain, but several tapes contained the final words of the inmates. The tapes might support the argument that electrocution, when properly conducted, is as humane as other alternatives.

Dr. Chris Sparry, Georgia's chief medical examiner, who has testified on the matter, stated:

The best evidence that exists to indicate that people who are judicially executed never feel any conscious pain or suffering rests in the tens of thousands of people who have sustained accidental electrocutions and have survived. None of those people can even remember the event if the current goes through their head …consciousness is obliterated instantly when the current is passed through the body because the amount of the current is so very, very great.

Georgia was one of four states still employing the use of electric chairs for execution of condemned criminals, although both Georgia and Florida changed their primary means of execution to lethal injection for the newly-convicted starting in 2000. Nebraska and Alabama continue to use their electric chairs as the sole means of execution although both states have considered legislation to allow lethal injection as well.

In an April 2001 Gallup poll, roughly two of every three surveyed Americans said they favored the death penalty. Despite some of the media's characterization of declining support, the percentage remained consistently above 60 percent for at least the preceding five years. The all-time high for supporting capital punishment was in 1994 at 80 percent; the low of 42 percent was in 1966. The manner by which execution is accomplished is a different matter toward which there is growing sensitivity.

In many states, condemned persons are given the opportunity to elect the method by which they will die. Some Americans bristle at the thought that "humane consideration" should be given to those who have wreaked heinous inhumanity upon others. There remains a palpable undercurrent of opinion/attitude that execution should hurt, not only because it may serve to deter future wrongdoers but also because of the belief that death is intended as a punishment, not an escape.

Still, as of spring 2001, 36 of the 38 states with death penalty laws employed lethal injection as the preferred method. With lethal injection, the victim is first put to sleep with sodium pentothal, after which other drugs are administered to paralyze the body and stop the heart. The person never regains consciousness.

The U.S. Supreme Court has provided guidance as to what should constitute cruel and unusual punishment under the Eighth Amendment, but made it clear that the standards must be evolving and dynamic. "Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture [such as drawing and quartering, emboweling alive, beheading, public dissecting, and burning alive], and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution," the Court said, more than 100 years ago, in Wilkerson v. Utah,99 U.S. 130, 25 L. Ed. 345 (1878), which upheld an execution by firing squad. Twelve years later, in In re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519 (1890), the Court, under the Fourteenth Amendment's DUE PROCESS CLAUSE, found electrocution to be a permissible method of execution. Moreover, in assuming the applicability of the Eighth Amendment to the States, the Court, many years later, held that a second electrocution, resulting from the failure of the first one, did not violate the proscription. "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely," the majority opinion stated. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S. Ct. 374, 916 L. Ed. 422 (1947).

In Trop v. Dulles 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958), the Supreme Court, in referring to the United States as "an enlightened democracy," held that "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." That language was repeated again in GREGG V. GEORGIA428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1978), wherein the Court noted that the Eighth Amendment was to be interpreted "in a flexible and dynamic manner to accord with evolving standards of decency." Most likely, this is the language from which the Georgia Supreme Court formed their ultimate Spivey ruling. The U.S. Supreme Court, on the other hand, denied certiorari to an appeal challenging Alabama's use of the electric chair and had not ruled against electrocution as of the end of the 2003 term.