Au revoir, Ol’ Sparky

Nebraska is the last state in the union that uses the electric chair as its sole means of executing offenders sentenced to death. Or it was the last such state until last Friday when the Nebraska Supreme Court decided State v. Mata (pdf, 86 pages).

By a 6-1 vote, the Court held that execution by electrocution violated the Nebraska Constitution’s ban on cruel and unusual punishment. The first 31 pages of the majority opinion are devoted to arguments that defendant’s conviction and death sentence were improper under applicable state law and U.S. constitutional procedural and substantive standards. The Court rejected all those arguments, upholding the conviction and death sentence in the process.

The discussion of the constitutionality of electrocution begins on Page 31. The Court based its ruling on the state constitution, which is worded identically to the U.S. Constitution as to the prohibition against cruel and unusual punishment, to avoid the effects of In re Kemmler, 136 U.S. 439 (1890), an aged case in which the U.S. Supreme Court held that electrocution is not “cruel and unusual punishment” for purposes of the Eighth Amendment.

The Nebraska Court also noted its previous decisions holding that electrocution didn’t violate the state constitution. It declined to follow those decisions because this was the first case to present “a full evidentiary record” regarding the physiological effects of electrocution on the convict.

The Court found that the “evolving standards of decency” test the U.S. Supreme Court uses in Eighth Amendment cases applies to method-of-execution challenges under the state constitution. The factors for evaluation the constitutionality of a particular execution method are whether the method at issue:

(1) presents a substantial risk that a prisoner will suffer unnecessary and wanton pain in an execution, (2) violates the evolving standards of decency that mark a mature society, and (3) minimizes physical violence and mutilation of the prisoner’s body.

Along the way the Court rejected a borderline-frivolous argument by the state that legislative intent to wantonly inflict pain should be a sine qua non for finding a constitutional violation.

Measured against the above-quoted standard, and in view of the extensive evidence presented to the trial court, electrocution never stood a chance:

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. Condemned 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.

Since Nebraska allows no other means of execution, and the chosen means was unconstitutional, the Court stayed Mata’s execution.

The dissent notes — correctly, IMO — that the majority’s reliance on the Nebraska Constitution doesn’t insulate the decision from U.S. Supreme Court review. Under the adequate and independent state ground doctrine, referenced here, SCOTUS will generally refrain from reviewing a state court judgment that rests solely on a provision of that state’s constitution. In this case, the majority never came right out and said that the Nebraska Constitution imposes more stringent restrictions on punishment than the Eighth Amendment, and the decision relied pretty heavily on federal court interpretations of the U.S. Constitution. Under those circumstances, the state law ground of decision in Mata in all likelihood isn’t truly “independent” of federal law.

In related news, LB 1063 (pdf, 53 pages) — a bill that would abolish capital punishment in Nebraska — is currently making its way through Nebraska’s single-house state legislature.

In totally tangential news, in states where judges are chosen in head-to-head elections, a judge who sees a state constitutional provision as affording greater protections than a similar or identical provision of the federal constitution can get into big trouble with right wingers and billionaires who fund them. Teevee commercials and other advertising to the effect that “this juge *hearts* criminalz & h8s real peeplzs!!@1!!!2!” are the rule in such states.

By way of example, there’s a Wisconsin Supreme Court race under way in which the incumbent’s use of the state constitution has become a major issue for the wingnuts opposing his reelection. My buddy Illusory Tenant is brilliantly chronicling the equal parts hilarious and disgusting developments here.

The obvious-but-ne’er-acknowledged truth of such dust-ups is that the folks who purport to champion citizen safety don’t really give a flying fuck about that issue. The power behind such efforts are insurance companies and chambers of commerce, and all they care about is electing Republicans who’ll vote to restrict court access for tort and consumer protection claimants. The “public safety” issue is but smoke and mirrors designed to persuade voters to elect the “right” candidate.

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