Brian Lyman

Montgomery Advertiser

It wasn’t immediately clear that the execution had gone wrong.

All Stephen Ellis could see from the viewing room of Holman Correctional Facility’s execution chamber was his client, Horace Dunkins, twitching and jerking after being administered up to 2000 volts of electricity.

Almost 10 minutes passed early on the morning of July 14, 1989. Two medical personnel examined Dunkins, a mentally retarded man convicted of the 1980 rape and murder of Lynn McCurry, a 26-year-old mother of four. Minutes passed. Ellis, now an attorney in Vermont, said in an interview last week that “the reality of the situation” slowly dawned on those present.

After an officer opened a door to the death chamber, reporters overheard him saying to a second officer, “I believe you’ve got the jacks on wrong.” Corrections officials later confirmed that the wires had not been properly connected to the chair. Despite a shock that appeared to have rendered Dunkins unconscious, his heart was still beating.

The disconnection required the switch to be thrown a second time. Ten minutes later — and 19 minutes after the execution began — Dunkins was pronounced dead.

“It’s impossible to imagine how unbearably painful it was to experience that level of voltage when that level of voltage that was intended to be lethal, but wasn’t,” Ellis said. “It’s impossible that it wasn’t painful.”

The legacy of ‘Yellow Mama’

The electric chair, colloquially known as “Yellow Mama,” was Alabama’s primary means of execution from 1927 to 2002; Dunkins was one of 24 people executed in the chair after the state resumed executions in 1983, following an 18-year hiatus.

Initially seen as a humane alternative to hanging, stories of its effects on the condemned — including loss of bodily functions; roasting, stinking flesh and, in some cases, the expulsion of eyeballs — suggested the opposite.

Alabama was the last state to use the chair as a primary method of execution, switching to lethal injection in 2002. Supporters of the death penalty call the method more humane. But Alabama has run out of pentobarbital, the first drug in the three-drug execution “cocktail,” which sedates inmates before two lethal drugs are administered.

Attempts to pass legislation to encourage manufacture of the drug by keeping the names of those involved a secret failed to pass the Legislature in the recently-concluded session.

Supporters of the bill, including Sen. Cam Ward, R-Alabaster, repeatedly warned that without it, the state would have to shift back to electrocution.

“By opposing this bill and killing this bill, we’re ensuring the state goes back to the system of the electric chair,” said Ward, a death penalty supporter, on the last day of the session. “I would personally believe there is a more humane system of using the death penalty than going back to the electric chair.”

The Department of Corrections says it is prepared to bring back the chair if lawmakers so desire. But it isn’t as easy as plugging Yellow Mama back in. Both supporters and opponents of the death penalty agree that bringing back the chair would trigger a host of legal challenges, and likely lengthen Alabama’s unofficial hiatus on executions.

Alabama currently allows condemned prisoners the option of dying in the electric chair, if they submit their request in writing to a warden. None of the 32 individuals executed since lethal injection was introduced in 2002 have done so. But Brian Corbett, a spokesman for the Alabama Department of Corrections, said corrections staff goes through “regular exercises” in the use of execution methods, including the electric chair.

“Everything is still the same,” he said. “Nothing’s changed.”

Bringing the chair back would first require amendments to the state’s execution statute. But supporters of capital punishment, including Ward, would much rather revive the death penalty secrecy bill at the start of the 2015 Legislative Session than bring back the electric chair. Still, the possibility lingers.

“I think it would be there if lethal injection was derailed or killed,” he said. “But I just don’t see a way.”

Janette Grantham, state director of VOCAL, a victims’ rights advocacy group, said her group supported lethal injection, but “did not particularly care” which method was used, as long as the capital sentences were carried out.

“I’ve been to several executions with lethal injection,” she said. “It’s very easy to die. They look like they’re going to sleep and being taken off to surgery.”

The shortage of drugs has affected executions nationwide, and some states have openly discussed the possibility of moving to revive the electric chair. Last week, the Tennessee House of Representatives voted to restore the electric chair if drugs to carry out lethal injection were unavailable. The bill needs to be reconciled with a version that passed the Tennessee Senate earlier this month.

Possibility of court challenges

But returning to the electric chair would almost certainly lead to a host of legal challenges.

The U.S. Supreme Court upheld the constitutionality of lethal injection in a 2008 decision. The high court has not ruled on the nature of electrocution since 1890, when it decided the appeal of William Kemmler, a New Yorker who was the first man sentenced to die in the electric chair.

In its decision, In re Kemmler, the court defined cruel punishment as “involving torture or lingering death.” Although the court did not directly address electrocution in the case — the justices effectively said they had to abide by New York’s determination it was not cruel or unusual, as they could not apply the Eighth Amendment to the states — the case is widely seen as granting constitutionality to the electric chair. The U.S. Supreme Court did not explicitly apply constitutional prohibitions on cruel and unusual punishment to the states until 1962.

The high court did agree to hear a challenge to Florida’s use of the electric chair in 1999, following a series of grisly malfunctions during executions, but the case was dropped after the state switched its primary method of execution to lethal injection.

Some state supreme courts, including those of Georgia and Nebraska, have found the electric chair constitutes cruel and unusual punishment, but “those things are not binding outside their borders,” said Richard Dieter, executive director of the Death Penalty Information Center.

Besides lethal injection, the U.S. Supreme Court has only ruled directly on the constitutionality of one other method of execution — in 1878, it upheld the use of firing squads in executions.

A federal court struck down use of the gas chamber in California executions in 1996; the state amended its death penalty statute to include lethal injection before the Supreme Court could take up the case.

Alabama’s death penalty statute contains a provision that says if lethal injection or electrocution are ever found unconstitutional, “all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution,” which, presumably, would mean the firing squad.

However, Dieter notes that the idea of “evolving standards” on what constitutes cruel and unusual punishment, stemming from a 1958 U.S. Supreme Court decision, could bear on any challenge to the electric chair.

“It would definitely land in court, in multiple courts and over multiple years,” he said. “Whoever’s going to do this, I could easily see this going to the Supreme Court. If anything, the situation would be more ripe now. It’s even more unusual.”

That, said Ward, was one of the reasons he wanted to see the state find a way to restore lethal injection.

“We have modern day technology that if we’re going to have a death penalty, it’s going to provide a much more constitutional way of carrying out executions,” he said.

For those on different sides of the issue, it can be personal.

Janette Grantham’s brother, Coffee County Sheriff Neil Grantham, was killed on March 1, 1979, by a former inmate as Grantham stood in the entrance of the Coffee County Jail. The sentence of the man convicted of his murder, Billy Joe Magwood, has been commuted, because of procedural issues at his first trial. Janette Grantham said she “did not really understand” the concerns over the methods of execution, saying she simply wanted the sentences carried out.

“People so against it shouldn’t have a say-so,” she said. “They haven’t been through it. They don’t know how it would feel.”

For Ellis, an opponent of the death penalty, Dunkins’ execution capped a difficult process. The jury that convicted Dunkins never heard direct evidence of his mental retardation. In an affidavit signed about a week before Dunkins’ execution, a juror said she never would have voted for the death sentence had she known.

“It’s not an abstract thing to me,” Ellis said. “I have very visceral memories of being there. And it being a botched execution underscored the inhumanity of what was taking place.”