Nebraska's a newsmaker this week, and it's not just because of the Presidential caucuses there today.Yesterday, by a 6-1 margin, the Nebraska Supreme Court held a method of execution -- the electric chair -- unconstitutional. Precedent in that court and in the U.S. Supreme Court likewise had approved execution by electrocution, conceded the opinion by Justice William Connolly, in which Justices Michael McCormack, John Gerrard, Kenneth Stephan, Lindsey Miller-Lerman, and John Wright joined. (photo credit) Yet those precedents were deemed not to control, for 2 reasons:
1st, the state court relied explicitly on article I, § 9 of the Nebraska Constitution -- a provision that, as the state court itself noted (p. 33), bans cruel and unusual punishment in terms virtually identical to the 8th Amendment to the U.S. Constitution.
2d, the state court explained that it, unlike the courts in the previous cases, "had the opportunity to review a factual record showing electrocution’s physiological effects on a prisoner" (p. 32). That record persuaded the court that electrocution is indeed cruel and unusual.
Over the state's objection the Nebraska court applied "to claims that the State’s intended method of execution inflicts unnecessary and wanton pain" the "evolving standards of decency" measure that, as I've written, the U.S. Supreme Court had broached in the 1910 case of Weems v. United States and established in the 1958 decision in Trop v. Dulles (p. 43). "Nebraska," it demonstrated, "is the only state in the nation to require electrocution as its sole method of execution" (p. 44). It then turned to the question of whether execution offended "'the dignity of man'" (p. 44). Review of the record below compelled conclusion that changes in procedures had not eased the risk of unduly "gruesome effects" (p. 56) in the course of electrocution; to the contrary, the high court agreed with the court below "that electrocution 'will result in unnecessary pain, suffering, and torture' for some condemned prisoners" (p. 66). Quoting the dissent of Justice Leander J. Shaw Jr. in Jones, a 1997 Florida judgment approving electrocution, the Nebraska court held the practice unconstitutional thusly (pp. 67, 69):
Examined under modern scientific knowledge, '[electrocution] has proven itself to be a dinosaur more befitting the laboratory of Baron Frankenstein than the death chamber' of state prisons.
. . .
[U]nder our system of government, while the Legislature may vote to have the death penalty, it must not create one that offends constitutional rights. 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.
Dissenting was Nebraska's Chief Justice, Michael G. Heavican. Among his concerns was the risk of inviting courts to engage in a practice about which I've written here and here; that is, consultation of external norms to aid constitutional decisionmaking. He wrote (p. 83):
There is also the possibility that concern for contemporary standards of decency will eventually lead courts to rely on foreign law. In Stanford, a majority of the Court emphasized that only'American conceptions of decency are dispositive' and therefore rejected the contention that sentencing practices of other countries . . . serve to establish . . . that the practice is accepted among our people.' But in Roper, the majority openly cited a number of foreign laws and ultimately gave weight to the fact that 'the United States now stands alone in a world that has turned its face against the juvenile death penalty.'
Such an observation may well be true, but I do not believe it is relevant to our analysis. I agree that a legislature assessing the wisdom of a law might want to consider how business is done elsewhere. But a court’s role is not to speculate on how a law might be written more effectively; its role is to assess what laws are forbidden by our constitutions. And yet all pretense of state or federal constitutional interpretation is lost the moment a judge looks to foreign law. Roper shows that a concern with contemporary standards of decency will inevitably lead to reliance on foreign law. After all, although our nation has a unique experience with constitutional interpretation, we have no monopoly on humanity.
Of course, it would be naive to assume that the influence of foreign law will always result in an 'expansion' of personal liberties. For example, Justice Scalia has observed that reliance on foreign law would jeopardize the Fourth Amendment’s exclusionary rule, abortion rights, and our nation’s adherence to the separation of church and state. Therefore, the specter that judges will rely on foreign law when interpreting our state and federal Constitutions is a broad-based concern.
Notwithstanding this solo complaint the majority of Nebraska highest court brought an end to execution by electrocution, the means by which 15 prisoners had been executed since 1913 in Nebraska, where legislators last year considered a bill to repeal the death penalty.
Its ruling does not displace lethal injection, the method commonly used in U.S. jurisdictions that retain capital punishment. Still, the majority's application of the ban on cruel and unusual punishments to the method of execution and, perhaps, the dissent's attacks on the evolving standards principle and on consultation of foreign norms, seem not irrelevant to the challenge to lethal injection now pending before the Supreme Court of the United States.
