GEORGIA HIGH COURT SHORTS OUT THE ELECTRIC CHAIR, BUT WILL EXECUTIONS KEEP BUZZING RIGHT ALONG?

On October 5^th, the Georgia Supreme Court, in a 4-3 decision, ruled that the use of the electric chair in executions violates Georgia's constitutional protection against the infliction of "cruel and unusual punishment."

Some opponents of the death penalty have hailed this decision as a first step in eliminating capital punishment. However, in light of its narrow holding, the chances of this ruling resulting in the end of capital punishment are about as high as my chances of ever paying back my school loans (that is, not very).

Electrocution is "Cruel and Unusual Punishment"

The Georgia Supreme Court's ruling was handed down in two consolidated cases. The defendants in both cases argued that electrocution — much like other painful, life-extinguishing methods such as burning at the stake and crucifixion — is cruel and unusual punishment, and accordingly violates the Georgia Constitution.

After reviewing expert testimony regarding the mutilating effects of electrocution, the court agreed that "death by electrocution, with its specter of excruciating pain and its certainty of cooked brains and blistered bodies, violates the prohibition against cruel and unusual punishment."

As a result of this ruling, all previous sentences of death by electrocution in Georgia were automatically converted to sentences of death by lethal injection.

The Movement Towards the Lesser of Two Evils

From my understanding of the two processes, lethal injection is a much more humane method of execution than electrocution. But this is most certainly a difference of degree and not kind — like, for example, a weekend with Al Gore versus a weekend with your mother-in-law.

In short, rather than reversing the course of capital punishment, this ruling simply serves to mark a milestone in its continuing path. At most, this case will prompt state and federal courts to replace electrocutions with lethal injections. Similarly, just a century ago, electrocution replaced hanging in much of the country.

Challenging Lethal Injections as "Cruel and Unusual"

Interestingly, some death penalty opponents are already making plans to attack lethal injections as cruel and unusual punishments as well. The strategy here seems to be to eliminate all modes of execution as "cruel and unusual" and thereby render the imposition of a death sentence by any method impossible.

"I'm going to start challenging lethal injection," said Thomas M. West, one of the defense lawyers in the Georgia case. "I mean, come on." Despite the simple eloquence and eerie persuasiveness of "I mean, come on," Mr. West and his compatriots are fighting an uphill battle.

First, it is difficult to argue that lethal injection is "cruel and unusual" when compared to other methods used in the not-so-distant past. (Take, for example, the just-outlawed-in-Georgia method of electrocution).

Second, courts have not been inclined to ban the use of a particular method of execution until an even more efficient and less painful method is available. Lethal injection, seen by some as a relatively efficient and painless option, is unlikely to be succeeded by a "better" alternative.

Finally, the U.S. Supreme Court has repeatedly affirmed that capital punishment, in and of itself, is not cruel and unusual for certain crimes. Attempting to undermine this ruling by ending the use of every possible execution method, one by one, is probably not something the Court would tolerate.

Capital punishment may not be going away anytime soon. After all, it dates back thousands of years. In fact, some historians believe that the practice of executing criminals may be even older than Strom Thurmond. Personally, I disagree.

Disparity Challenges to Execution

With such a strong disposition towards capital punishment, the most promising challenges to the death penalty may be those based upon racial, ethnic and socioeconomic disparities in the quality of defense, and in the application of the death penalty. In fact, just last year, studies demonstrating such disparities convinced then-President Bill Clinton to institute a moratorium on federal executions.

Not surprisingly, this moratorium was quickly ended by incoming President George W. Bush, who earned the moniker of "The Texecutioner" while serving as the Governor of Texas. Nevertheless, these disparity-based challenges continue to be raised in the federal and state court systems with varying success.

Evidentiary Challenges and Executions

Also, with each advance in forensic technology, the foibles of the legal system become more apparent. For instance, DNA evidence has been used to prove the innocence of people who had spent years on death row, or, in some cases, were actually executed.

These revelations have caused lawyers, judges and legislators to question the reliability of some of the most basic evidentiary techniques, such as eyewitness testimony. For this reason, Illinois has placed a moratorium on executions.

Mental Retardation and Execution

Lastly, much attention has been recently focused on the issue of mental retardation. Just last term, in Penry v. Johnson, the U.S. Supreme Court overturned the death sentence of a mentally retarded inmate in Texas, due to the trial judge's failure to instruct the jury that it could consider the defendant's mental disability in sentencing.

In that case, the Supreme Court did not rule on the constitutionality of executing a mentally retarded prisoner. However, the high court will address the issue in the current term. The case involves a North Carolina inmate who is believed to have mental capabilities no greater than your average 12-year old.

As a result of the moral and ethical issues raised in such cases, 22 states have either passed legislation exempting the mentally retarded from capital punishment or have such legislation pending.

Choosing Your Battles Wisely

With other more effective fronts on which to wage a war against capital punishment, it seems strange that opponents of the death penalty would spend their energies challenging various forms of execution as "cruel and unusual." At best, their efforts will only serve to alter the method of execution.