Electric chair, likened to torture, declared unconstitutional

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By CLARENCE MABIN / Lincoln Journal Star

The Nebraska Supreme Court, evoking imagery from a Gothic horror tale, declared the electric chair unconstitutional Friday, likening the state’s sole method of execution to an archaic form of torture.

Judge William Connolly, writing for the 6-1 majority, said the court recognized the societal temptation to make condemned prisoners suffer.

“But it is the hallmark of a civilized society that we punish cruelty without practicing it ourselves,” he wrote. “Condemned prisoners must not be tortured to death, regardless of their crimes.”

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Clerk of the Legislature Patrick O'Donnell greets Nebraska Supreme Court Judges Michael McCormack (from left) John Gerrard, John Wright, Chief Justice Mike Heavican, William Connolly and Kenneth Stephan last month on the floor of the legislature. (LJS File)

Clerk of the Legislature Patrick O'Donnell greets Nebraska Supreme Court Judges Michael McCormack (from left) John Gerrard, John Wright, Chief Justice Mike Heavican, William Connolly and Kenneth Stephan last month on the floor of the legislature. (LJS File)

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In a ruling that relied heavily on scientific evidence, Connolly referred approvingly to a 1997 Florida court decision that held electrocution “‘has proven itself to be a dinosaur more befitting the laboratory of Baron Frankenstein than the death chamber’ of state prisons.”

The decision Friday came in an appeal from condemned murderer Raymond Mata Jr., who was sentenced to death for the 1999 murder of his former girlfriend’s 3-year-old son, Adam Gomez. Prosecutors said Mata, of Scottsbluff, dismembered the boy and kept some of his remains in the home to intimidate the mother.

Friday’s ruling affirmed Mata’s death sentence, but effectively put it — and, apparently every other Nebraska death sentence — on hold until the state adopts a constitutional method of execution.

Chief Justice Michael Heavican, the lone dissenter, expressed concern with what he viewed as the ruling’s inconsistency.

The majority said the electric chair violates a provision in the Nebraska constitution that is patterned after the Eighth Amendment to the U.S. Constitution. The federal amendment bars cruel and unusual punishment.

Heavican wrote the Nebraska court has “long held” the state constitution’s ban on cruel and unusual punishment is no more stringent than that of the Eighth Amendment.

Yet, he said, the court Friday determined the electric chair violated the state constitution, even though the U.S. Supreme Court has said electrocution is not cruel and unusual punishment.

“Thus,” he wrote, “if the Nebraska Constitution does not require anything more than the federal Constitution regarding cruel and unusual punishment, and the U.S. Supreme Court has indicated that electrocution is not cruel and unusual under the federal Constitution, I cannot see how electrocution violates the Nebraska Constitution.”

Nebraska Attorney General Jon Bruning on Friday said he will ask the court to reconsider its ruling.

“I am surprised and disappointed with the ruling and think the Supreme Court is mistaken,” he said in a statement. “Nebraskans overwhelmingly support the death penalty, and justice demands that our state has a constitutional method of execution.”

Others said Friday they had expected the court to strike down the electric chair — an execution method that has grown increasingly uncommon nationally since its first use in 1890 in New York.

“I think maybe it’s the end of an era,” said Richard Dieter, executive director of the Washington-based Death Penalty Information Center. “I personally wasn’t surprised, given the unique unusualness of the electric chair.”

Nebraska adopted electrocution in 1913, but by the beginning of the 21st century found itself among a small minority of states still using the method.

Once Alabama wiped the electric chair from its books in 2002, Nebraska became the only state to rely exclusively on electrocution.

Only a handful of the other 37 states with capital punishment offer electrocution as an alternative to lethal injection, according to the Death Penalty Information Center Web site.

“The reason other states changed (to lethal injection) was they were looking for a more humane method,” Dieter said.

Mata’s attorney, Jerry Soucie of the Nebraska Commission on Public Advocacy, said the ruling was inevitable, given mounting scientific and anecdotal evidence that the electric chair can cause unnecessary and wanton pain.

“I think it was just a matter of time that the Nebraska Supreme Court or the U.S. Supreme Court would rule it unconstitutional,” he said.

“What surprised me was the depth of detail (in the ruling) on the scientific evidence. … This is really the first case that included a fully developed record (for the court to review) of the evidence.”

Indeed, Connolly described instances in which shock victims suffered broken bones and dislocated joints from powerful contractions caused by the electricity.

Expert testimony at a Keith County District Court hearing for Mata indicated that the belief that judicial executions always result in instantaneous brain death “is a myth,” Connolly wrote.

The judge noted the electrocution protocol adopted by Nebraska in 2004 was similar to the one used by the state to execute a prisoner in 1929. Connolly said physicians determined the man was still alive after the first jolt. A second jolt was administered, causing heavy brown smoke to fill the room, the judge said.

“This shows the current protocol will continue the mutilation of prisoners’ bodies,” he wrote. “It also supports the district court’s conclusion that some prisoners will be tortured during electrocutions.”

Connolly said the court could not rule the electric chair unconstitutional under the U.S. Constitution, since that court has sanctioned its use.

But the federal court’s rulings on the electric chair, based on the one it rendered in the 1890 New York case, were based on an “equal protection,” or 14th Amendment analysis, and not an Eighth Amendment one, Connolly said.

“Therefore, the Court did not decide the (New York) case under the Eighth Amendment and there was scant evidence about electrocution in 1890,” Connolly wrote.

He said the U.S. Supreme Court, like the Nebraska Supreme Court, had never reviewed “objective (scientific) evidence regarding electrocution’s constitutionality.”

That changed for the Nebraska court when it considered Mata’s appeal, Connolly said.

“Because we are now presented with evidence of a nature and quality that the (U.S.) Supreme Court never considered when it held electrocution was not cruel and unusual punishment, we cannot rationally defer to federal precedent,” he wrote.

Heavican, in his dissent, said the “most troublesome aspect” of the majority ruling was its use of an “evolving-standard-of-decency” to decide constitutionality.

The standard, he said, can be a highly subjective one. Moreover, how does one determine the standard, he asked.

Legislative acts nationwide adopting lethal injection offered no guidance, Heavican wrote,  because states might choose to adopt lethal injection not for humanitarian reasons, but “simply … because lethal injection is a more practical method of terminating life.”

Jim Mowbray, executive director of the Nebraska Commission on Public Advocacy, said he believes the ruling is not appealable to the federal court because it is based on the court’s reading of the Nebraska Constitution.

But Heavican seemed to suggest otherwise.

Even though his colleagues’ referred to the Nebraska Constitution, their analysis, he said, was is based solely on federal case law.

Heavican cited a federal court decision that held the U.S. Supreme Court can review state court interpretations of state laws when the interpretations are based on federal law.

Reach Clarence Mabin at 473-7234 or cmabin@journalstar.com