The Switch

By John Allen

Because Bernstein has spent thirty years studying the effects of electricity on the human body, and because he has published articles about both accidental and legal electrocutions, he's become one of the major figures in the late chapters of the chair's story. He's visited the execution chambers of Louisiana, Florida, and Alabama, and ten times he has given testimony, either in court or in hearings, trying to help defendants avoid the hot seat.

"The substance of my testimony is pretty much always the same," he says. "I tell the court that most of the work on the electric chair was done with a seat-of-the-pants approach. The electrical design is poor. Every state has a different sequence of shocks. Many of the states use old equipment, and they don't test it very well. They'll have in the notebook or the protocols, 'Check the equipment,' or 'Check the electrodes.' What does that mean? They need to be more specific."

His testimony covers not just the engineering of the chair and the circuit it creates, but the difficulties of determining, with any scientific certainty, how to deliver the proper level of current to kill quickly. In February, he appeared on behalf of Ronald Spivey, who was nearing the end of his stay on Georgia's death row and hoped to have his electrocution commuted at least to death by lethal injection. His lawyers called in Bernstein, who told the court that a man of Spivey's weight - around three hundred pounds - would likely suffer unnecessarily in the electric chair.

"To cause ventricular fibrillation in a 300-pound man," Bernstein told the court, "that man would require exposure to 1.3 times the current necessary to cause fibrillation in a man of more normal weight, say approximately 170 pounds." In Georgia's chair, even a 170-pound person would achieve only a 50 percent likelihood of fibrillation on the first try. "The combination of the particular way in which the circuitry of Georgia's electrocution apparatus is designed, added to the factor of Mr. Spivey's obesity, creates an extremely high risk of a lingering and painful death."

Spivey's execution, previously scheduled for March 6, has been delayed but not yet commuted. In spite of the scientific evidence at Bernstein's command, he has never convinced a judge to overturn an electrocution. "I have," he says ironically, "a perfect record."

That record may remain intact. At seventy-four, Bernstein is thinking of retiring from the expert-witness circuit. But if he has failed to spare prisoners in individual cases, his views in general (and executioners' spectacular botches) are making electrocution less palatable to courts and state legislatures. Until May 2000, Georgia's death sentence for all capital crimes was electrocution. In that month, the legislature dispensed with the chair for all future convictions. Although this leaves nearly 150 convicts who must still face electrocution, it does signal that the chair's end is coming. Florida dropped the chair in 1999, leaving only ten states that electrocute convicts, and all but two - Alabama and Nebraska - offer lethal injection as an alternative.

All of which leads to a natural question: is lethal injection really any better than electrocution? If Bernstein had to choose, he would rather see prisoners get the needle than the chair. As he says, "At least it looks more sanitary." And that's true. As Amnesty International reports, a lethal injection appears quick and clean. In the U.S., the procedure usually uses first sodium thiopental to put a convict to sleep, then pancuronium bromide to stop breathing and potassium chloride to stop the heart. The convict doesn't wake up but dies without any apparent pain.

At least that's the plan.

John Allen, a skinny fellow, is associate editor of On Wisconsin.

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