BERNSTEIN: The case against electrocution

Virginia legislators must respect prisoners’ rights and make lethal injection readily available as a form of execution

Last week, the Virginia State Senate voted to table a bill that would require death row inmates to die by electrocution if Virginia is unable to supply lethal injection drugs. This bill presents an unfair and drastic change from Virginia’s current death row policy, which allows prisoners to choose between lethal injection and electrocution, with lethal injection as a default if prisoners don’t have a preference. Not only is electrocution an archaic method of execution, but taking away a prisoner’s right to choose his method of execution is unfair. Though the bill has been tabled, its very existence suggests that lawmakers are not giving this issue — and prisoners’ rights — enough attention.

The U.S. is the only country in the world that allows electrocution as a method of execution, and Virginia is one of only six states in the country that actually uses it. The small scale of its use is due to the violence of the practice; often subjects are noticeably in pain — some have even caught on fire — and since the death penalty was reinstated in 1976 there have been at least three recorded incidents of botched electrocutions in Virginia. (Note that these are recorded instances, not including botched electrocutions that go unreported.) Even successful electrocution can mutilate the body and take an excessive amount of time.

In terms of legality, because of the extensive pain electrocution can cause, it is clear that electrocution violates the Eighth Amendment, which prohibits “cruel and unusual punishments.” In fact, in Nebraska, the state supreme court found that execution by electrocution was unconstitutional because of that very provision in its own constitution. In Virginia, we no longer kill by hanging or burning criminals, and we have never used firing squads or gas chambers; all of these methods are largely outdated and considered inhumane. Electrocution should not be considered a humane punishment when it causes as much pain and does as much damage to the body, if not more, as hanging or gassing a prisoner. Generally speaking, lethal injection — a practice which itself draws criticism — is considered to be a much more humane method of execution that does not necessarily violate a prisoner’s Eighth Amendment rights.

This brings us back to the bill. Given the argument that Virginia should completely end the practice of electrocution, while electrocution is legal we certainly should not force prisoners to be electrocuted.

The cited reason for the bill’s creation is a fear that the supply of lethal injection drugs is running out, since companies that make the drug don’t wish to supply it for executions. While it’s true that Virginia’s stockpile of lethal injection drugs has expired, before resorting to electrocution lawmakers should thoroughly investigate new avenues for buying lethal injection drugs or research new drug cocktails. It is irresponsible not to exhaust every possibility before proposing such a significant change to Virginia law. Simply changing the law so that prisoners must face electrocution is an easy way out for legislators.

This bill is also, at its core, an ethical issue. It is rare in our discourse that we discuss prisoners’ rights, and this is understandable: it is impossible not to sympathize with a victim and his family. But prisoners do have rights — among them, the Eighth Amendment — and if we are going to execute them, we must do it in as fair and quick a way as possible. The very least we can do is allow them to choose their method of execution, which seems like a relatively small concession.

The tabling of this bill is almost certainly a good thing; lawmakers should use this time to explore other ways of obtaining lethal injection drugs and to further discuss the implications of taking away a prisoner’s right to choose his method of execution. But the bill was tabled by the alarmingly small margin of two votes, which suggests that almost half of state senators are not giving this issue the research and discussion it merits. Lawmakers are elected to represent all their constituents, and this includes the eight Virginians currently on death row, as well as future death row occupants. Virginia officials should approach this issue with the thoroughness it deserves.

Dani Bernstein is a Senior Associate Opinion editor. Her columns run Tuesdays.

Published February 18, 2014 in Opinion

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