Zagorski’s choice of electric chair part of national trend
Death row inmate Edmund Zagorski’s path to the electric chair sprung from a national debate over lethal injection drugs that shows no sign of waning.
An expert on executions predicted more death row inmates could follow the condemned man’s lead.
Zagorski requested death by electrocution Oct. 8, hours after the Tennessee Supreme Court upheld the state’s controversial lethal injection cocktail — three drugs medical experts said would lead to an extremely painful death.
The inmate said he preferred 35 seconds total of two 1,750-volt shocks to a lethal injection that could take up to 18 minutes to kill him.
It is a provocative move — the electric chair hasn’t been used in Tennessee in 11 years, and no other state has used it since 2013.
“It tells us a lot about the failures of lethal injection as a method of execution that a prisoner would opt for what he considers to be a half minute of torture instead of what he considers to be 18 minutes of torture,” said Robert Dunham, executive director of the Death Penalty Information Center, a nonprofit that collects execution statistics.
But Zagorski isn’t alone. He’s part of a growing national trend.
Eight death row inmates in Alabama in July asked to die in the gas chamber rather than via lethal injection. A Missouri inmate whose case has traveled up to the U.S. Supreme Court made the same choice. Tennessee does not have that option for execution.
In each case, the inmates said they did not want to be tortured to death for several minutes by a lethal injection.
Alabama and Missouri both use lethal injection cocktails that include the sedative midazolam. So does Tennessee. Experts say midazolam fails to render inmates completely unconscious while painful poison courses through their veins.
Dunham said the growing prevalence of midazolam-based protocols all but ensures more inmates will choose other options when they can, even if they seem more gruesome in comparison.
“I think we’ll be seeing more of this,” Dunham said. “It really tells us about the state of the death penalty in the United States.”
David Raybin, a Nashville defense attorney who witnessed the last electric chair execution in 2007, agreed.
“I think that more prisoners will exercise the electric chair so as to avoid the possible torture of the injection,” Raybin wrote in an email. “I also think some may do so as a more dramatic protest to the penalty.”
Trend stems from U.S. Supreme Court’s ‘macabre requirements’
Dunham’s organization does not take a stand for or against the death penalty, but he questioned some aspects of its implementation. He said the spate of inmates rejecting lethal injections is the “direct byproduct of the Supreme Court’s macabre requirements” surrounding legal challenges, set in the decision in Glossip v. Gross.
It is not enough for inmates challenging a particular drug to prove lethal injection leads to torture, which is barred by the U.S. Constitution. The high court also requires inmates to find a readily available alternative to the drugs.
If challengers fail to meet both requirements, they fail altogether.
As a result of that standard, Tennessee’s Supreme Court rejected the lethal injection challenge here because they found the inmates, including Zagorski, hadn’t pointed to another cocktail of drugs the state could purchase.
The justices did not even consider if midazolam led to torture.
Christopher Slobogin, the director of the criminal justice program at the Vanderbilt University law school, said the perils of the midazolam protocol are well established.
“We’ve seen a number of cases in which a lethal injection was botched or appeared to cause serious pain,” Slobogin said in an email. “The gas chamber, even the firing squad, might be preferable to many individuals, if they have the choice. But apparently the courts aren’t concerned enough about the pain to declare use of the current lethal injection cocktail cruel and unusual.”
‘States had a good reason to move away from’ electrocution
States shifted away from the electric chair in recent years. The high courts in Nebraska and Georgia have ruled the method unconstitutional.
Tennessee’s primary method of execution is lethal injection. Only inmates convicted for crimes before 1999 can voluntarily choose electrocution instead.
“States had a good reason to move away from” electrocution, Dunham said.
For one, it creates a more disturbing image. Inmates are strapped down into the chair with a shroud over their face and their bodies can appear to push against the restraints as electricity courses through them. First- and second-degree burns are common.
Botched electrocutions can be even more disturbing, with smoke, spouts of blood and the smell of singeing hair possible.
Still, Zagorski and his lawyers favor it to lethal injection. They said as much this week in a last-minute attempt to stop the execution.
“He will stand by his coerced choice,” the complaint read.
“He and his lawyers genuinely believe that he would be suffocated and chemically burned at the stake over a period of more than 15 minutes if they chose lethal injection,” Dunham said. “It’s astonishing that we’ve come to this.”
Reach Adam Tamburin at 615-7265986 and atamburin@tennessean.com. Follow him on Twitter @tamburintweets.