Florida’s Latest Death Penalty Innovation Is Absolutely Horrifying

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On Thursday, Florida put Edward Zakrzewski to death for the 1994 murder of his wife and children. He was the ninth person executed so far this year in the Sunshine State, surpassing its previous single-year high of eight executions in 2014.

Florida used lethal injection to execute Zakrzewski, one of two methods that, until recently, were the only ones allowed under state law. The other was electrocution, which an inmate could choose as an alternative to lethal injection.

There was nothing unusual about that law, as many other death penalty states specify more than one possible execution method. For example, Alabama law states that in death penalty cases, “lethal injection will be administered, unless the prisoner affirmatively chooses nitrogen hypoxia or electrocution.” There’s a similar law in South Carolina.

But Florida’s new law is the first of its kind. It gives the people in charge of carrying out executions, as the journalist Olivia Burke explains, “free rein to put prisoners who were given the ultimate punishment to death however they see fit.”

“The only condition,” Burke notes, “is that the technique is ‘not deemed unconstitutional’—which opens the floodgates to a host of barbaric ideas.”

What Florida has done is turn decades of precedent in death penalty jurisprudence on its head. In that jurisprudence, people accused of capital crimes were guaranteed “super due process” in the handling of their cases. When it came to execution methods and protocols, great care was taken to specify what was permissible.

That is no longer the case in Florida, one of this country’s leading execution states. One can only hope that others do not follow suit. To prevent that, courts must make clear that because someone’s life is on the line, such an open-ended approach to execution methods is not acceptable.

The Supreme Court has never handled a case like that. However, it has, from time to time, been asked to assess the constitutionality of particular methods of execution.

And it has never found one of them to be unconstitutional.

In 1878 it upheld a Utah statute that said, “A person convicted of a capital offense ‘shall suffer death by being shot, hanged, or beheaded,’ as the court may direct, or ‘he shall have his option as to the manner of his execution.’ ”

Twelve years later, in a case called In re Kemmler, the first person scheduled to die in the electric chair asked the court to strike down that method. It refused to do so.

As the court put it, “The evidence is clearly in favor of the conclusion that it is within easy reach of electrical science at this day to so generate and apply to the person of the convict a current of electricity of such known and sufficient force as certainly to produce instantaneous, and therefore painless, death.”

It laid out a standard that courts have relied on ever since. “Punishments are cruel,” the Kemmler court noted, “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 is something inhuman and barbarous—something more than the mere extinguishment of life.”

Fast-forward to 2008, when the Supreme Court took up its next method-of-execution case. This time, the method in question was lethal injection. Echoing Kemmler, SCOTUS held that a method of execution is unconstitutional only “if it creates a substantial risk of severe pain beyond what is necessary for execution.”

Under that standard, lethal injection passed muster.

And the court has never had to decide on the constitutionality of hanging, the gas chamber, nitrogen hypoxia, or any other way of putting people to death.

All of this is to suggest that the language of Florida’s new law, “a death sentence shall be executed by electrocution, or lethal injection, or a method not deemed unconstitutional,” may not impose much of a limit on its choice of method. As one of the sponsors of the law explained, “We want to make sure that any executions that are fulfilling the governor’s orders, a jury, a judge, that there are constitutional ways (of executing inmates) out there.”

Critics note that the new law “expands Florida’s execution methods without providing clear guardrails, oversight, or transparency.” They argue that “Florida already has the broadest death penalty scheme in the nation, with the lowest threshold for imposing a death sentence and the most qualifying capital crimes. This law pushes us even further into dangerous and uncharted territory.”

Lest this all seem like a flight of fancy, who would have thought that hanging would have remained an authorized punishment in New Hampshire and Washington well into the 21^st century, or that we would again be witnessing firing-squad executions of the kind South Carolina recently carried out and that are also legal in Idaho, Mississippi, Oklahoma, and Utah.

And what law professor Corinna Barrett Lain has observed about many other death penalty statutes is equally true of Florida’s law, namely that it provides “no guidance whatsoever to those who must implement” any new execution method. As she notes, “The minimal standards that ordinarily attend administrative decision-making do not apply. It means that when the state is carrying out its most solemn of duties, those subject to its reach receive not more protection, but less.”

They are left to guess what execution method Florida officials may decide to use in their case.

In addition, it is hard enough to ensure that those charged with carrying out executions perform them correctly when they have to know how to administer one or two different methods. We already have enough of a problem with botched executions. As execution methods proliferate, the room for error grows.

If the Florida law remains in place, other death penalty states may be tempted to follow suit and provide more leeway in the ways they take the lives of people condemned to death.

That is why courts must step in and insist that states name the methods that are legal and usable when they carry out an execution. This does not require them to approve of any particular method, but it requires states to identify the methods that they want to use.

Judges need to say clearly that the question of how a state intends to kill someone like Edward Zakrzewski should not be left to the imagination, in Florida or anywhere else.

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