Posted on November 20, 1999

by Daniel Clark

For the first time in over a century, the Supreme Court has agreed to hear a challenge to the constitutionality of death by electrocution. The case has been filed on behalf of convicted murderer Anthony Bryan, against Old Sparky, which is the nickname of the electric chair used in the state of Florida.

Old Sparky is so named for its tendency to emit smoke and flames from its headpiece during executions. It once caused a prisoner to bleed profusely from the nose, which was enough to gain it eternal infamy among foes of capital punishment. Bryan claims that whatever additional pain might result from Sparky's volatility qualifies as an Eighth Amendment violation, as does the psychological trauma he has suffered during the sixteen years he's been awaiting his death.

Bryan's lawyer, Andrew Thomas, is protesting that the Humane Society does not allow animals to be electrocuted the way his client will be, an assertion which is as true as it is irrelevant. His client's grisly fate is his justly assigned punishment for murdering a man in 1983. No mink has done anything to earn that same treatment.

The reason Thomas makes this argument is to point out that death by electrocution is cruel, which, of course, it is, and that it therefore constitutes "cruel and unusual" punishment, which it just as surely does not.

If the Supreme Court adheres to the actual language of the Eighth Amendment, it must rule in Old Sparky's favor. Unfortunately, we have no assurance that it will do so, since it has been known in the past to become creative in its reading of the Constitution. An example of this is what has become of our First Amendment freedom of speech, since the Court fancifully paraphrased it as "freedom of expression," as if it were interpretive dance that Hamilton and Madison had in mind.

Our founders knew perfectly well, however, the difference between an "and" and an "or." If they meant to bar any punishment which is merely cruel or unusual, they surely would have done so. Instead, they prohibited punishment which is both cruel and unusual. That being the case, cruel punishment is perfectly acceptable, as long as it is applied consistently.

Which it must be, for the word "cruel" leaves a lot of interpretive elbow room. Any punishment which inflicts pain could be reasonably defined as cruel. Some might even argue that depriving someone of his freedom by locking him in a cage is cruel. By comparison, death by electrocution qualifies easily.

What would be unconstitutional is if all other murderers in the state of Florida were sentenced to the gas chamber, but the authorities were so angered by Bryan's crime that they decided to zap 2300 volts through him. That would be both cruel and unusual, and would therefore violate the Eighth Amendment. As long as Florida uses the electric chair as a standard punishment, though, Bryan has no case.

The men who authored and ratified the Constitution did not hold fashionable, twentieth-century views on criminal justice. It is clear from its wording that the Eighth Amendment was written to enforce the principle of equal justice under the law, not to assuage concerns that we are being too cruel to our murderers.

The modern perception of the criminal justice system as a social service for criminals holds that the purpose of our penal system is to reform and rehabilitate them. If one assumes that to be the case, execution would be the ultimate failure, as well as a betrayal of the criminals we have sworn to help.

If our founders had subscribed to this view, however, they would not have allowed capital punishment by writing into the Fifth Amendment that no person shall be deprived of life without due process of law. Although this does not require that capital punishment be implemented, it clearly leaves that option available. Obviously, that indicates a higher priority on holding criminals accountable for their crimes than on trying to help them get better, as if they were celebrities in a substance abuse clinic.

Anyone who considers the murder victim for even a second realizes that a murderer's punishment says something about the value of the person he killed. Society doesn't value a person very much if it is willing to delay his killer's punishment for sixteen years during a series of baseless appeals, even less so if it then considers that long wait to be a cruelty against the killer, and not the victim's family. 

It's a mockery to care about scorching a man's scalp, or bloodying his nose, in the context of rendering justice for his having killed another man. One might as well worry about the electricity mussing his hair.

If the Supreme Court hands down a competent decision in this case, Andrew Thomas will see his client die under a puff of Old Sparky's smoke. If he takes offense to that, then he should stop representing clients who are lower than mink.

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