Constitutional Killing

Guest Post by Colin Dayan, Robert Penn Warren Professor in the Humanities, Vanderbilt University

There is a real legal history to the death penalty. In some ways it is as barbaric as the fact of execution itself. It also helps to explain why the death penalty in the United States will not go away.

Since the 18th century, “cruel” and “unusual” have been coupled in our legal language and courts. Their rhetorical ambiguity has been alternately used to protect prisoners and to legitimize violence against them. Only at the start of the 20th century in Weems v. United States, and again in 1958 with the opinion of Chief Justice Earl Warren in Trop v. Dulles, did the Supreme Court turn away from the mere ban on “barbarous” punishments and begin to consider whether punishments were disproportionate to the offense. In Trop, Warren emphasized a flexible interpretation of the 8th Amendment that would adapt to enlightened public opinion. The “dignity of man,” he said, was the linchpin of the 8th Amendment.

The 8th Amendment attracted great attention during Furman vs. Georgia in 1972. This landmark case declared capital punishment to be cruel and unusual — and therefore unconstitutional. Not only was it “degrading to human dignity,” wrote Justice William J. Brennan Jr., but it also had proved to be “irrational and arbitrary.” Justice Potter Stewart said: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” The court voted 5 to 4 to strike down every capital punishment law in the United States.

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A Brief History of the Electric Chair

Guest Post by Kelly Oliver, W. Alton Jones Chair of Philosophy, Vanderbilt University

On January 4th, 1903, the famous inventor Thomas Edison electrocuted Topsy, an Asian Elephant and Coney Island circus attraction that had killed three of her trainers, one of whom tried to feed her a lighted cigarette. Edison documented the event, which was also a public spectacle reportedly attended by 1500 people, with his short film entitled “Electrocuting an Elephant.” The film brought together Edison’s most significant inventions, electric lighting, film, and electrocution as a means of instituting the death penalty.

The film was also a publicity stunt on the part of Edison, who waged what he called a “war of currents” with his rival George Westinghouse. Edison had invested himself in direct current electricity while Westinghouse had invested in alternating current, which could be more easily transmitted at higher voltages over cheaper wires. In a campaign to discredit alternating current, Edison tried to convince people that it wasn’t safe, first by using it to electrocute animals and eventually by endorsing it for use in executing humans. Edison reasoned that people would not want the same current flowing into their homes that was used in the electric chair.

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Death and Taxes: The Real Story Behind Tennessee’s Electric Chair

Guest Post by Lisa Guenther, Associate Professor of Philosophy, Vanderbilt University

Yesterday, Tennessee Governor Bill Haslam signed a bill to bring back the electric chair as the default method of execution, should lethal injection drugs become unavailable or unconstitutional. While the first version of the bill restricted its application to death sentences issued after July 2014, a last-minute amendment lifted this restriction, making it applicable to those who are currently on death row. Theoretically, this means that we could be facing an execution by electrocution in Tennessee as early as Oct. 7, when Billy Irick is scheduled to be killed.

It is tempting to decry this return to the electric chair as a “barbaric” lapse into brutal forms of violence that do not befit a democratic nation such as the United States. It is also tempting to affirm this legislation as a more “truthful” display of what is really going on when the state kills, and to hope that the unconcealment of state violence will lead to more vigorous opposition. But it’s not at all clear that more truth leads to more activism, nor that brute violence is incompatible with US democracy.

In order to understand what’s happening in Tennessee – and in other states that are currently going out of their way to kill people, such as Oklahoma, Missouri, Texas, Mississippi, Louisiana, and Utah – we must move beyond moral discourses on the death penalty and trace the material, political connections between state violence, economic inequality, and white supremacy in the United States.

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Ask the Governor to Veto the Bill to Bring Back the Electric Chair!

If you are opposed to bringing back the electric chair in Tennessee, please call the Governor’s office at (615) 741-2001 TODAY and leave a message asking Gov. Haslam to veto HB 2476 / SB 2580.

This bill would make the electric chair the default method of execution if lethal injection drugs are unavailable for any reason. A last-minute amendment to the bill would make this legislation retroactive, which means that we could face an execution by electrocution as early as October 7!

Today is the last day for the governor to sign the bill, abstain from signing (in which case it will still become law, since it passed in the House and Senate), or to veto the bill.

Many lawyers agree that it would be unconstitutional to make the legislation retroactive.  This is our chance to encourage Governor Haslam to do the right thing, and to veto the bill now in order to avoid long and costly litigation later.

If you are on facebook, you can follow this action at https://www.facebook.com/events/726917673997135/  Please post a message on the facebook page after you call!

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