For a century, the use of the electric chair for executions has been accepted in this country. Yesterday a court in Nebraska ruled differently, saying its use constituted torture and violated the Constitution's ban on cruel and unusual punishment.

Is it a proper decision rooted in the Constitution, or judicial activism?

The Nebraska Supreme Court ruled Friday that electrocution is cruel and unusual punishment, outlawing the electric chair in the only state that still used it as its sole means of execution.

The state's death penalty remains on the books, but the court said the Legislature must approve another method to use it. The evidence shows that electrocution inflicts "intense pain and agonizing suffering," the court said.

"Condemned prisoners must not be tortured to death, regardless of their crimes," Judge William Connolly wrote in the 6-1 opinion.

"Contrary to the State's argument, there is abundant evidence that prisoners sometimes will retain enough brain functioning to consciously suffer the torture high voltage electric current inflicts on a human body," Connolly wrote.

Ordinaily, I'd argue that this is a bit of judicial activism. However, is it possible that increases in our knowledge about the human body and the effects of electrocution have led us to the point where we now know that what once seemed to be a humane form of execution is in fact excessively cruel and amounts to torture? I'm willing to reserve judgment there, given that the opinion goes to great lengths to examine the scientific evidence on the matter. i do, however, struggle with whether it is the proper role of the courts to make that decision.

There is, of course, a simple, effective, and quick method of execution out there that I believe would meet any and all objections under the Eighth Amendment.

Properly modified, equipped with an ultra-sharp surgical steel blade and a hydraulic system designed to instantaneously separate head from body (and body from soul), it should meet any Constitutional objection to the method of execution.

There is a question as to whether or not this decision will make it into the Federal courts, because of the grounds on which the decision was made. The Nebraska Supreme Court didn't actually SAY the decision was based upon the US Constitution, but rather upon virtually identical language in the state constitution -- but then cited nothing except precedents interpreting th US Constitution. That might make taking this case into the federal courts a bit more tricky due to federalism issues.

Posted by: Greg at 01:55 AM | Comments (41) | Add Comment
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