119 NY 569 (1890)
The development of electricity during the Gilded Age dramatically transformed industrial production and the daily lives of millions of Americans. The Empire State was at the forefront of this transformation. In 1882, Thomas Edison’s Electric Illuminating Company developed a power plant that generated enough electricity to power the nation’s first urban electric grid and supply electricity to thousands of customers in New York City’s financial district.
In 1888, New York became the first state in the nation to introduce the electric chair. The legislature determined that electrocution was a more humane means of carrying out the death penalty than the existing practice of hanging by the neck. Code of Criminal Procedure section 505 was amended to read as follows: “The punishment by death must, in every case, be inflicted by causing to pass through the body of the convict a current of electricity of sufficient intensity to cause death, and the application of such current must be continued until such convict is dead.”
Two years later, in People ex rel. Kemmler v. Durston (119 NY 569 [1890]), the Court of Appeals was asked to decide whether execution by electric chair violated the prohibition against cruel and unusual punishment set forth in Article 1, Section 5 of the State Constitution.
In May 1889, William Kemmler, a slow-witted, illiterate, alcoholic vegetable vendor was convicted of first degree murder by the Court of Oyer and Terminer in Buffalo after he killed his common-law wife, Matilda “Tillie” Ziegler, “by striking her more than 25 times on the head, neck and shoulders with [a] hatchet during a drunken row in their squalid apartment.”[1] When Kemmler was sentenced to die by the infliction of electricity in the Auburn State prison he brought a writ of habeas corpus against the prison warden, Durston, arguing that the sentence of death by electrocution was constitutionally invalid as cruel and unusual punishment. The writ was dismissed by Cayuga County Court Judge S. Edwin Day, and the General Term of the Supreme Court in the Fifth Judicial Department affirmed the dismissal.
Judge Denis O’Brien, writing for a unanimous Court of Appeals, stated that “[t]he only question involved in this appeal is whether this enactment is in conflict with the provision of the state Constitution which forbids the infliction of cruel and unusual punishment. (Const. art. 1, § 5).” The court commended Kemmler’s counsel, W. Burke Cochran, for providing an extensive history dating back to the 13th century of the prohibition against cruel and unusual punishment, but it did not consider the history salient. In the court’s view, electrocution, though “certainly unusual,” was not cruel. The change from hanging to electrocution “prescribed no new punishment… The punishment now, as before, is death. The only change made is in the mode of carrying out the sentence. The infliction of the death penalty in any manner must necessarily be accompanied with what might be considered in this age, some degree of cruelty, and it is resorted to only because it is deemed necessary for the protection of society. The act on its face does not provide for any other or additional punishment.”
Kemmler argued that electrocution would subject him to the “possible risk of torture and unnecessary pain,” but the Court declined to substitute its judgement for that of the legislature, which had appointed a special commission in 1886 to “investigate and report” on the “most humane and practical method known to modern science of carrying into effect the sentence of death in capital cases.” The legislature had proceeded with “care and caution and unusual deliberation,” and the court was impressed by the testimony in the record which “removes every reasonable doubt that the application of electricity to the vital parts of the human body, under such conditions, and in the manner contemplated by the statute, must result in instantaneous and consequently in painless death.”
It would be a strange result indeed if it could now be held that its efforts to devise a more humane method of carrying out the sentence of death in capital cases, have culminated in the enactment of a law in conflict with the provisions of the Constitution prohibiting cruel and unusual punishments. Whether the use of electricity as an agency for producing death constituted a more humane method of executing the judgment of the court in capital cases, was a question for the determination of the legislature. It was a question peculiarly within its province, and the means at its command for ascertaining whether such a mode of producing death involved cruelty, within the meaning of the constitutional prohibition, were certainly as satisfactory and reliable as any that are consistent with the limited functions of an appellate court. The determination of the legislature of this question is conclusive upon this court.
The case did not end there but found its way to the U.S. Supreme Court, which concluded that the Court of Appeals’ decision was not “re-examinable here” (In re Kemmler, 10 S. Ct. 930 [1890]). Notwithstanding that conclusion, Chief Justice Melvin Fuller went on to review the full proceedings in great detail before stating: “In order to reverse the judgment of the highest court of the state of New York, we should be compelled to hold that it had committed an error so gross as to amount in law to a denial by the state of due process of law to one accused of crime, or of some right secured to him by the constitution of the United States. We have no hesitation in saying that this we cannot do upon the record before us.”
The road to the electric chair was paved with good intentions. In 1885, in his annual message to the legislature, Governor David B. Hill declared that “[t]he present mode of executing criminals by hanging has come down to us from the dark ages.”[2] The Legislature appointed a special commission of three eminent citizens to recommend a more humane method: Elbridge T. Gerry, a prominent reform-minded attorney from New York City; Matthew Hale, an Albany lawyer and politician; and Dr. A. P. Southwick, a dentist and steamboat engineer who is credited with inventing the electric chair.
William Kemmler’s fear that electrocution would cause him “torture and unnecessary pain” turned out to be well-founded. According to the Buffalo News, Kemmler pleaded with corrections officers: “Don’t let them experiment on me more than they ought to.”[3] After an initial 17-second burst of high-voltage electric current a doctor declared Kemmler dead. Within seconds, however, Kemmler reportedly let out a deep groan and was visibly breathing. Horrified witnesses desperately urged the authorities to turn the current back on. On resuming the current, it took, according to witness reports, anywhere between one to four minutes for Kemmler to die. The execution chamber filled with the smell of burning flesh as Kemmler’s body smoked and sizzled. Several witnesses fainted or were overcome with severe nausea.[4]
Newspaper reports were filled with disgust and outrage. The reaction of the New York Times was typical:
A sacrifice to the whims and theories of the coterie of cranks and politicians who induced the Legislature of this State to pass a law supplanting hanging by electrical execution was offered today in the person of William Kemmler, the Buffalo murderer. He died this morning under the most revolting circumstances, and with this death there was placed to the discredit of the State of New York an execution that was a disgrace to civilization. [5]
Despite the horrors of Kemmler’s botched execution, use of the electric chair only gained momentum in the years that followed. By 1915, twelve states had adopted that method.[6] In New York, 695 executions, all by electrocution, eventually took place between 1890 and 1963 when the legislature amended the death penalty statute to eliminate mandatory death sentences for many types of killings and to provide defendants with increased protections. In 1965, additional amendments limited the death penalty to persons convicted of murdering police officers in the line of duty and prisoners serving a life sentence who killed a fellow inmate. In 1977 and 1984, the Court of Appeals issued a pair of decisions, People v. Davis (43 NY2d 17 [1977]) (police officers) and People v. Smith (63 NY2d 41 [1984]) (inmates) that abolished what remained of the state’s death penalty. Although the death penalty was reinstated under Governor George E. Pataki in 1995, with lethal injection designated as the mode of execution, the Court of Appeals ruled in 2004 that the statute was unconstitutional as written. See People v. Lavalle (3 NY3d 88 [2004]). As a result, New York has not had the death penalty on the books since 2004.[7]
[1] John G. Leyden, Death in the Hot Seat: A Century of Electrocutions, Washington Post, Aug. 4, 1990.
[2] Robert K. Elder, Last Words of the Executed, Univ. of Chicago Press, 2010, at 125.
[3] S. Meehan, August 6, 1890: Buffalo Man is First to be Executed by Electric Chair, The Buffalo News, Aug. 6, 2015.
[4] Kemmler’s Death by Torture, New York Herald, Aug. 7, 1890.
[5] Far Worse Than Hanging, New York Times, Aug. 7, 1890.
[6] Timothy S. Kearns, The Chair, the Needle, and the Damage Done: What the Electric Chair and the Rebirth of the Method-of-Execution Challenge Could Mean for the Future of the Eighth Amendment, Cornell Journal of Law and Public Policy, Vol. 15, Iss. 1, 2005.
[7] Deborah L. Heller, Death Becomes the State: The Death Penalty in New York State – Past, Present and Future, Pace Law Review, Vol. 28, Spring 2008.