A bill in the Tennessee General Assembly aims to enable the state to put people to death by electrocution if the Department of Corrections continues having difficulty obtaining lethal-injection drugs, or if lethal injection is ruled unconstitutional.
Sen. Ken Yager of Harriman and Rep. Dennis Powers of Jackson, both Republicans, last week got a legal go-ahead from Tennessee Attorney General Robert Cooper, a Democrat, to press ahead with legislation granting the state express authority to start using the electric chair for people convicted of capital crimes in the future.
Tennessee hasn’t executed anyone since 2009. Currently 76 people are on death row in Tennessee, according to the state Corrections Department website.
State law currently allows use of the electric chair only if the condemned prisoner chooses it. The only person the state’s ever killed by electrocution upon their request was Daryl Holton in 1997. He’d been convicted of murdering his three sons and stepdaughter in Shelbyville. Holton’s was the first electric-chair execution in Tennessee since 1960, and received significant media attention, both local and national.
Powers’ House Bill 2476 is scheduled for a hearing Wednesday in the Civil Justice subcommittee.
The bill declares that for anyone who commits a capital offense in the future, electrocution will be designated as an “alternative method of execution” if “lethal injection is held to be unconstitutional” or “one or more of the ingredients essential to carrying out a sentence of death by lethal injection is unavailable through no fault of the (Department of Corrections).”
For some time now, the state has had difficulty acquiring drugs approved for executions. However, Corrections Department spokeswoman Dorinda Carter said Monday officials who handle execution preparations “are confident we will have the necessary chemical when we are ordered to carry out a sentence.”
Carter said the department is not requesting the electric chair legislation, nor taking a stance for or against it. “Our position is we will defer to the will of the legislature,” she said in an emailed statement to TNReport.
In an opinion issued March 12, Cooper wrote that execution by electrocution “is constitutionally defensible under current authority.” He cited three U.S. appeals court rulings over the past century, the first in 1890, the second in 1947 and the last in 1997, that have upheld using electric shock to carry out death warrants.
In the most recent case, which was quoted in AG Cooper’s opinion, the U.S. Sixth Circuit Court of Appeals declared:
“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.”
But the United States Supreme Court has never actually considered whether electrocution constitutes cruel and unusual punishment, the attorney general’s opinion noted. Cooper cautioned that court precedents thus far “would not necessarily immunize the legislation from constitutional challenge.”
Cooper suggested that the nation’s high court has potentially left the door open to future discussion on death-penalty questions. He indicated that social and judicial debate over what constitutes “cruel and unusual punishment,” which is banned in the Tennessee Constitution as well as the U.S. Bill of Rights, is likely to continue with respect to the death penalty.
This isn’t the first time Cooper’s been asked to weigh in on method-of-execution questions. In 2007, state Rep. Mike Turner, D-Old Hickory, asked Cooper if electrocution was permissible in wake of a U.S. district court ruling that the state’s three–drug execution cocktail was unconstitutional. The attorney general responded that “only in the event that lethal injection is declared unconstitutional by the United States Supreme Court, Tennessee Supreme Court, or other appellate court” would electrocution be legal under state law.