Cruel and Unusual: State v. Mata, the Electric Chair, and the Nebraska Supreme Court's Rejection of a Subjective Intent Requirement in Death Penalty Jurisprudence

• Publication year: 2021

88 Nebraska L. Rev. 235. Cruel and Unusual: State v. Mata, the Electric Chair, and the Nebraska Supreme Court's Rejection of a Subjective Intent Requirement in Death Penalty Jurisprudence

Cruel and Unusual: State v. Mata, the Electric Chair, and the Nebraska Supreme Court's Rejection of a Subjective Intent Requirement in Death Penalty Jurisprudence

Mark Mills

Note(fn*)

TABLE OF CONTENTS

I. Introduction.......................................... 236

II. Background........................................... 237

State v. MataState v. Mata: State v. Mata .

III. Analysis.............................................. 249

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IV. Conclusion............................................ 260

I. INTRODUCTION

In State v. Mata,(fn1) the Nebraska Supreme Court held that death by electrocution violates the Nebraska Constitution's prohibition against cruel and unusual punishment, effectively overruling an established line of Nebraska precedent upholding electrocution as a constitutional means of execution.(fn2) At the time of the Court's decision, Nebraska had the dubious distinction of being the only state in the union using electrocution as the state's sole method of execution.(fn3) Now, in the aftermath of Mata, Nebraska finds itself in a curious position: capital punishment is statutorily(fn4) and constitutionally(fn5) permissible in the state of Nebraska, but there is currently no available method of execution.(fn6)

In rejecting electrocution as a method of execution, the Court gave considerable attention to the issue of subjective intent in Eighth Amendment method-of-execution challenges.(fn7) The crux of the issue is whether an inmate challenging a particular method of execution must show that the government officials enacting the method-of-execution statute-or the officials carrying out the execution-acted with the in-

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tent to cause unnecessary pain and suffering. The Court ultimately concluded that a successful Eighth Amendment method-of-execution challenge does not require a showing of subjective intent.(fn8) This finding, however, is inconsistent with the U.S. Supreme Court's method-of-execution jurisprudence. Furthermore, the Court's holding raises concerns about the propriety of rejecting a crucial component of U.S. constitutional and criminal law. This Note addresses the implications of the Court's rejection of a subjective intent requirement in method-of-execution claims.

Part II discusses the existing U.S. Supreme Court and Nebraska Supreme Court precedent addressing methods of execution generally and electrocution specifically. The Note then gives an overview of the Nebraska Supreme Court's decision in State v. Mata, explaining the Court's reasoning and rationale. Part III analyzes the Court's decision, focusing on the Court's rejection of a subjective intent requirement in method-of-execution jurisprudence. Specifically, this Note argues that the Court's rejection of a subjective intent requirement is humane and well-meaning, but ultimately unsupported by U.S. Supreme Court method-of-execution jurisprudence. Further, the Court's rejection of a subjective intent requirement was unnecessary, as the Court could have found a subjective intent requirement and still reached the same result.

II. BACKGROUND

In Mata, the Nebraska Supreme Court emphasized that the question presented was whether death by electrocution violates the Nebraska Constitution, not whether death by electrocution violates the U.S. Constitution.(fn9) However, the Court also noted that the state and federal constitutional provisions prohibiting cruel and unusual punishment are coextensive and that "the Nebraska Constitution's cruel and unusual punishment provision 'does not require more than does the [Eighth Amendment to the] U.S. Constitution.'"(fn10) Consequently, the Court relied primarily on U.S. Supreme Court decisions in determining whether electrocution violates the Nebraska Constitution.(fn11) Because the Nebraska and federal cruel and unusual punishment provisions are coterminous, and because the Nebraska Supreme Court

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relied heavily on federal jurisprudence in its analysis, it is necessary to understand both federal and Nebraska death penalty jurisprudence to adequately analyze the Court's decision. Accordingly, before discussing State v. Mata, this Note first provides a brief overview of U.S. Supreme Court and Nebraska Supreme Court method-of-execution jurisprudence.

A. U.S. Supreme Court Method-of-Execution Jurisprudence

Over the years, the U.S. Supreme Court's death penalty jurisprudence has been prodigious, addressing a wide variety of issues, ranging from how criminals may be selected for execution(fn12) to which crimes merit the punishment of death.(fn13) Notably, however, the Court has seldom addressed the constitutionality of specific methods of execution. Indeed, as one prominent legal scholar observed, "A striking oddity of the American death penalty is the Court's complete constitutional disregard for how inmates are executed."(fn14) The Court's method-of-execution cases are few in number, and those dealing specifically with electrocution as a means of execution are even fewer.

The U.S. Supreme Court first ruled on the constitutionality of a method of execution in Wilkerson v. Utah,(fn15) in which the Court held that death by firing squad does not violate the Eighth Amendment's prohibition of cruel and unusual punishment. In reaching its decision, the Court drew on commentary by Blackstone, who noted that, at common law, criminals guilty of particularly atrocious crimes were not merely executed. Rather, "circumstances of terror, pain, or disgrace were sometimes superadded" to their punishment of death.(fn16) It was thought that death was insufficient punishment for those who committed the worst crimes-only torture would sufficiently punish such criminals. The Court, citing Blackstone, gave examples of such methods of torture, citing cases "where the prisoner was drawn or dragged to the place of execution ... or where he was emboweled alive, be-headed, and quartered" and where the prisoner was publicly dissected

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or burned alive.(fn17) The Court admitted that the line between constitutional and unconstitutional punishment is difficult to identify, but noted that torture of the sort documented by Blackstone is clearly for-bidden by the Constitution, and that death by firing squad cannot be classed with the garish methods of execution enumerated by Blackstone:

Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned by [Blackstone], and all others in the same line of unnecessary cruelty, are forbidden by that emendment [sic] to the Constitution.(fn18)

Thus, while the Court acknowledged the difficulty in identifying the exact point at which a punishment becomes unconstitutional, the Court did offer some helpful principles to guide future courts- namely, that in order to constitute cruel and unusual punishment, a punishment must involve torture of the magnitude described by Blackstone, and must involve a method of death where "terror, pain and disgrace" are deliberately incorporated into the method of execution. Through these principles, the Wilkerson Court established a baseline method-of-execution standard that provided a foundation on which subsequent courts would build.

Twelve years later, in 1890, the Court revisited the method-of-execution issue in In re Kemmler.(fn19) This time the challenged method of execution was electrocution, a newly invented and somewhat untested method of execution.(fn20) The electric chair had been introduced by the New York legislature as a method of execution to provide a more humane alternative to hanging.(fn21) Nevertheless, the constitutionality of death by electrocution was soon challenged and the U.S. Supreme Court found an opportunity to address the issue in Kemmler. The Court analyzed the constitutionality of death by electrocution not only under the Eighth Amendment's prohibition against cruel and unusual punishment, but also under the Privileges and Immunities Clause and

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the Due Process Clause of the Fourteenth Amendment.(fn22) Building on the Wilkerson standard, the Court in Kemmler explained the constitutional meaning of "cruel," stating that "[pjunishments 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,- (sic) something more than the mere extinguishment of life."(fn23)

The Court ultimately determined that death by electrocution does not violate the Due Process Clause or the Privileges and Immunities Clause of the Fourteenth Amendment.(fn24) Complicating matters, however, is the often-overlooked fact that the Court in Kemmler never actually held that death by electrocution does not violate the Eighth Amendment's prohibition against cruel and unusual punishment.(fn25) Rather, the Court held that the decision of a New York court was not re-examinable by the U.S. Supreme Court because the Eighth Amendment had not been incorporated against the states.(fn26) Even though the Court ultimately decided the case under the Fourteenth...