As Edmund Zagorski faces a November 1, 2018 exe­cu­tion in Tennessee, the courts have required him to choose between death by lethal injec­tion and elec­tro­cu­tion. His lawyers argue that both meth­ods, as well as the forced choice between the two, are uncon­sti­tu­tion­al. In a law­suit filed in fed­er­al dis­trict court on October 26, 2018 and appealed to the U.S. Court of Appeals for the Sixth Circuit on October 30, Zagorski’s attor­ney, Kelley Henry, wrote of elec­tro­cu­tion, ​“while bet­ter than lethal injec­tion, such a death is still utter­ly bar­bar­ic,” alleg­ing that it vio­lates the Eighth Amendment ban on cru­el and unusu­al pun­ish­ment. The law­suit claims that Tennessee’s elec­tric chair is ​“incom­pe­tent­ly designed,” and that Zagorski will suf­fer as elec­tro­cu­tion ​“burns Mr. Zagorski’s skin from his skull, boils his blood and fails to prompt­ly stop his heart and brain func­tion.” Describing Tennessee’s three-drug mida­zo­lam-based exe­cu­tion as one in which ​“the pris­on­er [will feel] as if he is ​‘drown­ing, suf­fo­cat­ing, and being burned alive from the inside out’ dur­ing a process that could last as long as 18 min­utes,” Henry argues that the state ​“has coerced Mr. Zagorski — with the threat of extreme chem­i­cal tor­ture via a bar­bar­ic three-drug lethal injec­tion pro­to­col — to choose to die a painful and grue­some death in the electric chair.”

Henry also argues that Tennessee has uncon­sti­tu­tion­al­ly forced Zagorski to choose between exe­cu­tion by lethal injec­tion with mida­zo­lam and death by elec­tro­cu­tion, while employ­ing state secre­cy laws to pre­vent him from obtain­ing infor­ma­tion nec­es­sary to prove that a less painful one-drug lethal injec­tion with pen­to­bar­i­tol was avail­able. Quoting Justice Sonya Sotomayor’s dis­sent from the Supreme Court’s October 11 refusal to hear Zagorski’s pri­or lethal-injec­tion chal­lenge, Zagorski argued “‘[w]hen the pris­on­ers tasked with ask­ing the State to kill them anoth­er way are denied by the State infor­ma­tion cru­cial to estab­lish­ing the avail­abil­i­ty of that oth­er means of killing, a grotesque require­ment has become Kafkaesque as well.’”

Zagorski’s exe­cu­tion was orig­i­nal­ly sched­uled for October 11, but Governor Bill Haslam issued a tem­po­rary reprieve to give prison offi­cials time to pre­pare for an exe­cu­tion by elec­tric chair. On October 29, U.S. District Judge Aleta Trauger reject­ed Zagorski’s chal­lenge to the elec­tric chair, but issued a tem­po­rary restrain­ing order pre­vent­ing the exe­cu­tion from going for­ward unless the state pro­vides his lawyers with access to a tele­phone to con­tact the court if some­thing goes wrong dur­ing the exe­cu­tion. On October 31, Zagorski filed a motion for stay of exe­cu­tion in the fed­er­al appeals court and both sides filed briefs on the con­sti­tu­tion­al­i­ty of Tennessee’s elec­tro­cu­tion pro­to­col. It is expect­ed that whichev­er side los­es in the appeals court will seek review by the U.S. Supreme Court. 

A February 2015 poll con­duct­ed by YouGuv found that Americans, by a 21 per­cent­age-point mar­gin (54% vs. 33%), con­sid­er the elec­tric chair cru­el and unusu­al pun­ish­ment. The states that used the elec­tric chair moved to lethal injec­tion in the wake of sev­er­al grue­some­ly botched elec­tro­cu­tions, deci­sions by the Georgia and Nebraska Supreme Courts declar­ing elec­tric-chair exe­cu­tions uncon­sti­tu­tion­al, and a 2009 U.S. Supreme Court deci­sion agree­ing to hear a chal­lenge to the con­sti­tu­tion­al­i­ty of Florida’s use of the elec­tric chair. That chal­lenge was lat­er ren­dered moot when Florida aban­doned exe­cu­tions by elec­tro­cu­tion. Tennessee last car­ried out an exe­cu­tion in its elec­tric chair in 2007.

(Adam Tamburin, Edmund Zagorski has cho­sen the elec­tric chair over lethal injec­tion. Will oth­er inmates do the same?, The Tennessean, October 31, 2018; Jason Lamb, Zagorski appeals elec­tric chair deci­sion to Court of Appeals, News Channel 5 Network, October 30, 2018; Adam Tamburin, Judge: Tennessee can’t exe­cute Edmund Zagorski unless his lawyer gets access to a phone, The Tennessean, October 30, 2018; Jason Lamb, Zagorski files suit against use of elec­tric chair, claim­ing it’s ​‘utter­ly bar­bar­ic’, News Channel 5 Network, October 26, 2018; Steven Hale, With His Execution Six Days Away, Zagorski Files Challenge Against Electric Chair (Updated), Nashville Scene, October 26, 2018.) See Methods of Execution.

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