In re Kemmler, 136 U.S. 436 (1890), is the United States Supreme Court decision that upheld New York’s law making electrocution the state’s method of capital punishment and produced the definition of “cruel and unusual punishment” that federal courts still cite. Chief Justice Melville Fuller, writing for a unanimous Court on May 23, 1890, held that punishments are cruel when they involve “torture or a lingering death” and something “inhuman and barbarous — something more than the mere extinguishment of life.”1Justia. In re Kemmler, 136 U.S. 436 The electric chair, the Court concluded, did not cross that line, and the choice of execution method was for state legislatures to make.
How the Case Reached the Supreme Court
William Francis Kemmler was a 28-year-old vegetable peddler in Buffalo, New York. On March 29, 1888, after a drinking binge, he killed his girlfriend Tillie Ziegler with a hatchet and walked to a neighbor’s house to confess. He was convicted of first-degree murder on May 10, 1888, and sentenced to death three days later.2Encyclopedia.com. Kemmler, William
The timing mattered. Weeks after the killing, New York enacted Chapter 489 of the Laws of 1888, replacing hanging with electrocution. The statute took effect on January 1, 1889, and Kemmler was the first person sentenced under it.3New York Correction History Society. Electric Chair at Auburn His appeals became a test case for whether the electric chair could survive constitutional scrutiny.
Kemmler first challenged the method in state court through a writ of habeas corpus, arguing that electrocution was cruel and unusual under the New York Constitution. In People ex rel. Kemmler v. Durston (119 N.Y. 569, 1890), the New York Court of Appeals rejected the claim unanimously. The court found that the legislature had acted with “care and caution” and that evidence in the record showed electrocution “must result in instantaneous and consequently in painless death.” The method was “certainly unusual,” the court acknowledged, but not “cruel.”4New York Courts History. People ex rel. Kemmler v. Durston Kemmler then sought review in the U.S. Supreme Court, framing the question as a federal one under the Fourteenth Amendment.
What the Supreme Court Held
Chief Justice Fuller’s opinion denied the application for a writ of error and rested on four related conclusions.
First, the Court defined cruelty for constitutional purposes. Punishments cross the line when they involve “torture or a lingering death,” Fuller wrote, and the prohibition “implies there something inhuman and barbarous — something more than the mere extinguishment of life.”1Justia. In re Kemmler, 136 U.S. 436 Burning at the stake, crucifixion, and breaking on the wheel would fall on the wrong side of that line. Electrocution, the Court concluded, did not.
Second, the Court deferred to the legislature. New York’s lawmakers had acted to provide a “less barbarous” alternative to hanging, and it was not for the courts to second-guess the factual judgment that electrocution would be humane.1Justia. In re Kemmler, 136 U.S. 436
Third, the Court held that the Eighth Amendment did not apply to the states at all. The Fourteenth Amendment, Fuller wrote, “did not radically change the whole theory of the relations of the state and federal governments to each other.”1Justia. In re Kemmler, 136 U.S. 436 This part of the ruling would not survive the twentieth century.
Fourth, the only federal check on a state’s choice of punishment was the Due Process Clause, and it would fail only if the punishment violated “the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” Absent that, states were free to run their own criminal justice systems.1Justia. In re Kemmler, 136 U.S. 436
The Court drew heavily on Wilkerson v. Utah, 99 U.S. 130 (1878), which had upheld execution by firing squad and catalogued historical tortures — drawing and quartering, disemboweling alive, beheading, and burning alive — as the kinds of cruelty the Eighth Amendment was designed to prevent.5Justia. Wilkerson v. Utah, 99 U.S. 130 Kemmler extended that framework to a new technology and concluded that novelty alone did not make a punishment unconstitutional.
The Edison–Westinghouse Backdrop
The litigation was not just about William Kemmler. The electric chair had been developed against the backdrop of the commercial war between Thomas Edison, who backed direct current, and George Westinghouse, who backed alternating current. Edison recommended AC as the current for executions and commissioned engineer Harold P. Brown to build the apparatus using Westinghouse generators, which Brown obtained through a secondhand dealer in Boston after Westinghouse refused to sell them.6TIME. Top 10 Bungled Executions
Westinghouse reportedly contributed $100,000 toward Kemmler’s appeals and hired W. Bourke Cockran, one of the most prominent attorneys of the era, to argue the case.7Smithsonian Magazine. Edison vs. Westinghouse: A Shocking Rivalry Edison, for his part, testified during the state proceedings that death by alternating current would be “quick and painless.”6TIME. Top 10 Bungled Executions
Kemmler’s Execution
With his federal appeal denied, William Kemmler was executed at Auburn State Prison on August 6, 1890, becoming the first person put to death in an electric chair. It did not go as the courts had been told it would.
At 6:40 a.m., a charge of 1,300 volts was applied for 17 seconds. A doctor initially declared Kemmler dead. Then he began to groan, and witnesses screamed for the current to be turned back on.8Death Penalty Information Center. 125 Years Ago, First Execution Using Electric Chair Was Botched A second charge of 2,000 volts was applied for roughly four minutes. The smell of burning flesh filled the room. Two witnesses fainted. Kemmler was pronounced dead only after his body stopped smoldering.6TIME. Top 10 Bungled Executions
Newspapers called the execution a “historic bungle” and described it as “disgusting, sickening and inhuman.”8Death Penalty Information Center. 125 Years Ago, First Execution Using Electric Chair Was Botched Westinghouse said: “They could have done better with an ax.”7Smithsonian Magazine. Edison vs. Westinghouse: A Shocking Rivalry
Legal Legacy
The “Torture or Lingering Death” Standard
The definition of cruelty at the heart of Kemmler has outlived every other part of the case. Paired with Wilkerson, it produced what scholars describe as an originalist framework: courts ask whether the Framers would have considered a punishment cruel, measured against historical practices from the late eighteenth century. Justices who favor a historically anchored reading of the Eighth Amendment, including Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas, have continued to invoke Kemmler for that purpose.9Congress.gov. Eighth Amendment: Mode of Execution
The Part That Was Overruled
Kemmler’s holding that the Eighth Amendment did not apply to the states was effectively overruled in Robinson v. California, 370 U.S. 660 (1962). The Court held that the amendment applied to state governments through the Due Process Clause of the Fourteenth Amendment and struck down a California law that criminalized drug addiction as a status.10Justia. Robinson v. California, 370 U.S. 660 After Robinson, prisoners could bring federal Eighth Amendment challenges to state punishments — a path Kemmler had said was closed.11Federal Judicial Center. Eighth Amendment and Prison Litigation
Francis v. Resweber
The most direct successor came in 1947. Willie Francis, a 16-year-old convicted of murder in Louisiana, was placed in the electric chair on May 3, 1946, but the device malfunctioned and failed to kill him. When Louisiana sought to execute him a second time, Francis argued the attempt would be cruel and unusual and would violate double jeopardy. In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, the Court ruled 5–4 that a second attempt was constitutional, holding that the cruelty the Constitution prohibits is “inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.” An “unforeseeable accident” did not make an otherwise constitutional method cruel.12Justia. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 The majority cited Kemmler as the precedent that electrocution is constitutional when intended to produce instantaneous, painless death. Four dissenters, led by Justice Harold Burton, argued that the Louisiana statute authorized “a current of electricity of sufficient intensity to cause death,” not “death by installments.”13Library of Congress. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459
Modern Execution-Method Cases
Kemmler still appears in current Supreme Court execution-method cases. In Bucklew v. Precythe (2019), the Court cited Kemmler for the proposition that the Eighth Amendment does not guarantee a painless death and that the constitutional test targets methods “inhuman and barbarous” beyond “the mere extinguishment of life.”14Justia. Bucklew v. Precythe, 587 U.S. The modern standard developed through Baze v. Rees (2008) and Glossip v. Gross (2015) requires a prisoner challenging an execution method to identify a “feasible, readily implemented” alternative that significantly reduces a “substantial risk of severe pain,” a rule that traces back to Kemmler’s deference to legislative choices about how to carry out death sentences.
State courts have been less deferential to Kemmler’s specific holding on electrocution. In State v. Mata, 275 Neb. 1 (2008), the Nebraska Supreme Court ruled 6–1 that electrocution as the sole method of execution violated the Nebraska Constitution. The court distinguished Kemmler, saying it could not “rationally defer to federal precedent” because it now had “evidence of a nature and quality that the Supreme Court never considered” in 1890, including expert testimony that the heart could restart after electrocution and that prisoners could remain conscious during the process.15Justia. State v. Mata, 275 Neb. 1 Justice William Connolly wrote that “condemned prisoners must not be tortured to death, regardless of their crimes.”16SCOTUSblog. Last State’s Electric-Chair-Only Execution Ended
Electrocution remained the predominant method of execution in the United States for decades before lethal injection displaced it. Since 1973, 158 electrocutions have been carried out, ten of which have been classified as botched.8Death Penalty Information Center. 125 Years Ago, First Execution Using Electric Chair Was Botched Several states, including Alabama, Florida, South Carolina, and Tennessee, still authorize the method as an alternative or fallback, generally available only if a prisoner chooses it or if lethal injection is unavailable.17Death Penalty Information Center. Authorized Methods of Execution by State The argument Kemmler blessed — that legislatures can be trusted to select a humane means of death, and courts should defer to that choice — is still the template lawmakers use for newer methods, including lethal injection and nitrogen hypoxia.