Can Tennessee constitutionally fall back on the electric chair when lethal injection drugs are unavailable?

Subject

Opinion No. 14-29, Constitutionality of Electrocution If Lethal Injection Unavailable, March 12, 2014

Plain-English summary

Senator Ken Yager and Representative Dennis Powers asked whether Senate Bill 2580, which would amend Tenn. Code Ann. § 40-23-114 to make electrocution the fallback method of execution if lethal injection is held unconstitutional or if its essential ingredients become unavailable, would violate the Tennessee or U.S. Constitutions. The AG answered: "No. SB2580 is constitutionally defensible under current authority."

The bill would add a new subsection (e) to § 40-23-114. For any offense committed on or after July 1, 2014, the default method of execution would be lethal injection. Electrocution would be used in two circumstances: (1) a court of competent jurisdiction holds lethal injection unconstitutional, or (2) the commissioner of correction certifies to the governor that one or more ingredients essential to a lethal-injection execution is unavailable through no fault of the department.

The AG walked through the Eighth Amendment and Tennessee Article I, Section 16 framework. The text of both provisions tracks each other. The U.S. Supreme Court's foundational electrocution cases are In re Kemmler, 136 U.S. 436, 447 (1890), which articulated the test (punishment is cruel when it "involves torture or a lingering death" beyond "the mere extinguishment of life"), and Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) (re-electrocuting an inmate after a failed first attempt did not violate the Constitution). Neither has been overruled. The Sixth Circuit has repeatedly held that electrocution remains constitutional, most prominently in In re Sapp, 118 F.3d 460 (6th Cir. 1997), and reaffirmed in Buell, Greer, Smith, and Williams. As of 2014, no American court had held electrocution per se unconstitutional under the federal Constitution.

The AG flagged the obvious caveat. Trop v. Dulles, 356 U.S. 86, 101 (1958), holds that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society"; Robinson v. California, 370 U.S. 660, 666 (1962), said Eighth Amendment claims are evaluated "in light of contemporary human knowledge." Those doctrines mean the answer is not frozen. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008), held that electrocution violated Nebraska's state cruel-and-unusual-punishment clause based on factual evidence of physiological effects that an earlier Nebraska decision had not considered. So while federal law as of 2014 left electrocution available, a state court could in principle reach a different conclusion under the state constitution, particularly if presented with new evidence.

The AG's bottom line: under existing federal and Tennessee authority, SB 2580 was defensible. The opinion did not promise the legislation would survive every challenge, only that current precedent supported its constitutionality.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What did SB 2580 actually do?

It amended Tenn. Code Ann. § 40-23-114 to set lethal injection as the default method of execution for offenses committed on or after July 1, 2014, and to designate electrocution as the fallback in two specific situations: (1) lethal injection is held unconstitutional by a court, or (2) the commissioner of correction certifies that ingredients essential to lethal injection are unavailable through no fault of the department.

Why was the AG asked about this?

Because national supply shortages of lethal-injection drugs in the early 2010s had begun to interfere with executions in several states. Tennessee legislators wanted to make sure the death penalty could still be carried out if the state could not procure the drugs.

What is the constitutional test for cruel and unusual punishment?

The AG quoted In re Kemmler, 136 U.S. 436, 447 (1890): "Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." That test, plus the "evolving standards of decency" framing from Trop v. Dulles, are the federal benchmarks. The Tennessee Constitution's Article I, Section 16 uses the same language.

Had any American court struck down electrocution under the federal Constitution?

No, as of 2014. The Sixth Circuit specifically said in In re Sapp, 118 F.3d at 464, that "[e]lectrocution has never been found to be cruel and unusual punishment by any American court. No legislatively authorized method of execution in the United States is outlawed in any jurisdiction by any currently-effective court decision." The Sixth Circuit repeated that line in Buell v. Mitchell, 274 F.3d 337, 370, declining to be "the first" to find electrocution unconstitutional. The U.S. Supreme Court has not addressed electrocution recently; In re Kemmler (1890) and Resweber (1947) remain the controlling decisions.

What was the Nebraska case the AG flagged?

State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008). The Nebraska Supreme Court held electrocution unconstitutional under the Nebraska Constitution, even though the same court had upheld the method in 2000. The difference was a developed factual record showing electrocution's physiological effects on the prisoner. The court also noted that Nebraska was at the time the only state imposing electrocution as its sole method of execution.

Could the Mata logic apply to Tennessee?

Possibly. The Tennessee cruel-and-unusual-punishment clause mirrors the federal one, and the Tennessee Supreme Court has not foreclosed an evolving-standards analysis. The AG flagged Mata as a reminder that current precedent does not "necessarily immunize" the legislation from constitutional challenge. But Tennessee under SB 2580 would have electrocution only as a fallback, not as the sole method, which materially distinguishes Mata.

Does this opinion settle the question?

No. AG opinions are advisory. The AG concluded SB 2580 was defensible, not that it was bulletproof. A defendant facing electrocution under the fallback provision could still raise a state or federal constitutional challenge, supported by factual evidence about physiological effects, and a court would resolve that challenge on its own.

Background and statutory framework

Tennessee's death-penalty method statute, Tenn. Code Ann. § 40-23-114, has long made lethal injection the primary method, with electrocution available in certain historical or volunteer-choice scenarios. SB 2580 expanded electrocution's role into the fallback position for the modern drug-shortage problem.

The Eighth Amendment framework on methods of execution is a series of mostly upholding decisions. In re Kemmler (1890) is the U.S. Supreme Court's foundational discussion of electrocution. Louisiana ex rel. Francis v. Resweber (1947) is the most pointed Eighth Amendment electrocution case from the Supreme Court, allowing a second attempted electrocution after a botched first. The Sixth Circuit's electrocution cases (Sapp, Buell, Greer, Smith, Williams) form a consistent line rejecting Eighth Amendment challenges. The doctrinal hook for change is Trop v. Dulles's "evolving standards of decency" language, which is exactly what Nebraska used in Mata.

The contemporary battles over execution methods have shifted toward lethal-injection drug protocols (Baze v. Rees, 553 U.S. 35 (2008); Glossip v. Gross, 576 U.S. 863 (2015)). That line of cases was not the subject of this opinion, which focused on the electrocution fallback, but it shapes the modern landscape.

Citations

• Tenn. Code Ann. § 40-23-114 (Tennessee method-of-execution statute)
• U.S. Const. amend. VIII (cruel and unusual punishments)
• Tenn. Const. art. I, § 16 (cruel and unusual punishments)
• In re Kemmler, 136 U.S. 436 (1890) (U.S. Supreme Court; foundational electrocution case)
• Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) (U.S. Supreme Court)
• Trop v. Dulles, 356 U.S. 86 (1958) (U.S. Supreme Court; evolving standards of decency)
• Robinson v. California, 370 U.S. 660 (1962) (U.S. Supreme Court)
• In re Sapp, 118 F.3d 460 (6th Cir. 1997)
• Williams v. Bagley, 380 F.3d 932 (6th Cir. 2004)
• Smith v. Mitchell, 348 F.3d 177 (6th Cir. 2003)
• Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001)
• Greer v. Mitchell, 264 F.3d 663 (6th Cir. 2001)
• Moore v. Rees, 2007 WL 1035013 (E.D. Ky. Mar. 30, 2007)
• State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008) (Nebraska Supreme Court)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-029.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 12, 2014
Opinion No. 14-29
Constitutionality of Electrocution If Lethal Injection Unavailable

QUESTION

Whether Senate Bill 2580/House Bill 2476 of the 108th Tennessee General Assembly (hereinafter "SB2580"), which would permit the use of electrocution in executions if the ingredients required for execution by lethal injection are unavailable, violates any provision of the Tennessee and United States Constitutions.

OPINION

No. SB2580 is constitutionally defensible under current authority.

ANALYSIS

SB2580 would amend Tenn. Code Ann. § 40-23-114 by adding a new subsection:

(e) For any person who commits and [sic] offense on or after July 1, 2014, for which the person is sentenced to the punishment of death, the method of carrying out the sentence shall be by lethal injection unless subdivision (e)(1) or (e)(2) is applicable. If subdivision (e)(1) or (e)(2) is applicable, the method of carrying out the sentence shall be by electrocution. The alternative method of execution shall be used if:

(1) Lethal injection is held to be unconstitutional by a court of competent jurisdiction in the manner described in subsection (d); or

(2) The commissioner of correction certifies to the governor that one (1) or more ingredients essential to carrying out a sentence of death by lethal injection is unavailable through no fault of the department.

S.B. 2580, 108th Gen. Assem., § 1 (2014).

The most likely constitutional challenge to the proposed legislation would be that electrocution as a method of execution constitutes cruel and unusual punishment. The Eighth Amendment to the United States Constitution provides as follows: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. The current Tennessee Constitution likewise directs "[t]hat excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Tenn. Const. art. I, § 16. "Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." In re Kemmler, 136 U.S. 436, 447 (1890).

The United States Supreme Court has rejected challenges to electrocution as a method of capital punishment, although the Court has not addressed this subject recently. See In re Kemmler, 136 U.S. at 449 (affirming New York's imposition of electrocution as a means of capital punishment); see also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) (subjecting prisoner to electrocution for a second time did not constitute cruel and unusual punishment).

The United States Court of Appeals for the Sixth Circuit has affirmed the constitutionality of electrocution more recently. See In re Sapp, 118 F.3d 460 (6th Cir. 1997). In Sapp, the Sixth Circuit upheld the district court's determination that it lacked jurisdiction to consider a petition to stay an execution by the State of Ohio. The Court further found that even if jurisdiction were proper, the inmate's constitutional challenge to death by electrocution was not likely to succeed on the merits.

Electrocution has never been found to be cruel and unusual punishment by any American court. No legislatively authorized method of execution in the United States is outlawed in any jurisdiction by any currently-effective court decision. The very practice of electrocution has been upheld by other courts within the past year, and there is no argument even plausible that there are differences in the level of "evolving decency" among the different circuits or states of the union, or over the last very few years.

Id. at 464 (citations omitted). The Sixth Circuit has cited the holding in In re Sapp with approval in several subsequent cases. See, e.g., Williams v. Bagley, 380 F.3d 932, 965 (6th Cir. 2004) (also noting that challenge to electrocution was moot because lethal injection is now designated as sole means of execution in Ohio); Smith v. Mitchell, 348 F.3d 177, 214 (6th Cir. 2003); Buell v. Mitchell, 274 F.3d 337, 370 (6th Cir. 2001) (noting that Ohio allows choice between electrocution and lethal injection and that "[e]lectrocution has yet to be found cruel and unusual punishment by any American court. We decline to be the first.") (citation omitted); Greer v. Mitchell, 264 F.3d 663, 691 (6th Cir. 2001) (noting that constitutionality of electrocution has been consistently upheld and that Ohio allows alternative choice of lethal injection). See also Moore v. Rees, No. 06-CV-22-KKC, 2007 WL 1035013, at *9 (E.D. Ky. Mar. 30, 2007) ("Nor is there any reason to believe that in the six years since the Sixth Circuit's decisions in Buell and Greer the polity has undergone any sea change in its 'evolving standards of decency' with respect to electrocution.").

Current precedent, however, would not necessarily immunize the legislation from constitutional challenge. In Trop v. Dulles, 356 U.S. 86 (1958), the United States Supreme Court noted that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." 356 U.S. at 101. The Court has also commented that Eighth Amendment issues are examined "in light of contemporary human knowledge." Robinson v. California, 370 U.S. 660, 666 (1962). More recently, the Nebraska Supreme Court held that electrocution was unconstitutional under its state constitution, whose cruel-and-unusual-punishment language mirrors that of the federal and Tennessee Constitutions. See State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008). The court noted that it had upheld electrocution as constitutional as recently as 2000 but stated that its previous decision had not relied on a factual record "showing electrocution's physiological effects on a prisoner." The court also noted that Nebraska was the only state imposing electrocution as its sole method of execution. Mata, 275 Neb. at 32, 745 N.W.2d at 256-57.

If enacted as proposed, SB2580's conditional imposition of electrocution would be defensible against a challenge under the constitutional prohibition against cruel and unusual punishment.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

ANDREW COULAM
Assistant Attorney General

Requested by:
The Honorable Ken Yager
State Senator
G19 War Memorial Building
Nashville, Tennessee 37243

The Honorable Dennis Powers
State Representative
G27 War Memorial Building
Nashville, Tennessee 37243