Petitioners Brief — Bryan v. Moore

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pec. iw (B] (a) pee 15 1999

No. 99-6723

In The “

Supreme Court of the United States

ANTHONY BRADEN BRYAN,

Petitioner,

MICHAEL MOORE, Secretary,

Florida Department of Corrections,

Respondent.

On Writ Of Certiorari To The

Florida Supreme Court

BRIEF FOR PETITIONER

Grecory C. SmitH, Esa.*

ANDREW THOMAS, Esq.

Capital Collateral Counsel

Northern Region

Post Office Drawer 5498

Tallahassee, FL 32314-5498

(850) 488-7200

Maertin McC iain, Esa.

Gait ANDERSON, Esq.

Special Assistant CCRC-N

Counsel for Petitioner

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

CAPITAL CASE

QUESTIONS PRESENTED

1. Did the Florida Supreme Court's appraisal of the

likelihood that Mr. Bryan will suffer needless agony and

degradation when he is put to death by Florida’s electric

chair violate the Eighth Amendment by disregarding a

constitutionally unacceptable risk of physical violence,

disfigurement and torment?

2. Did the Florida Supreme Court err in concluding

that the record as a whole insufficiently sustains Mr.

Bryan’s contention that his execution by Florida’s electric

chair unnecessarily exposes him to physical suffering and

degradation in violation of the Eighth Amendment?

3. Following the documented, repeated malfunc-

tioning of Florida’s electric chair, resulting in ghastly

spectacles of violent disfigurement, did the Florida

Supreme Court err in rejecting Mr. Bryan’s contention

that his being subjected to execution by such means con-

stitutes wanton psychological and moral cruelty that vio-

lates the Eighth Amendment?

4. Did the Florida Supreme Court err in determin-

ing that the presence or absence of conscious pain once

electrocution begins is the only factor which determines

whether or not Florida’s electric chair constitutes cruel

and unusual punishment under the Eighth Amendment?

TABLE OF CONTENTS

Page

QUESTIONS PREGRICEGS) «os ok conssecchnccuesonnte i

TARAS GP CASCIO ss sven vivonnesivdsseenstaness ii

TABLE OF AU THRDRISMe + 6 ncsnsavinsenensocecbiws iv

DRIEE POR PERTTI T 6 5 vs nkcci naepa cs nkaseeucee 1

OPTNEIN BIO, 0 cn cccccushenvavdus varakeuaenas 1

PRIS SE 6 a icccsvsvenpetonas nha vauaes eens 1

CONSTITUTIONAL PROVISIONS INVOLVED...... 1

STATEMENT GF THOR CAGE: i ckcicciceceaccceuncns 2

A. THE SERIES OF EVENTS GIVING RISE TO

THESE PREC ERGGe so scnsvsvesswctnessese 2

B. THE PRACTICE OF ELECTROCUTION AS A

METHOD OF EMBCUTIUIN oi cscie se cidcvencis 10

C. VIOLENCE, MUTILATION AND PHYSICAL

PPUEMISIGIE D5 osc sessnkesevndeusede tan saseesae 11

D. THE RISK OF CONSCIOUS PAIN DURING

SLC TROL Tee no ckkukansagndeped aekep ins 13

1. Background data and scientific principles... 16

a. The effects of electrical trauma on con-

Tee ee 16

b. The amount of current reaching the

ODER, 0 is eo 049k 80d Wie eas 17

2. The debate over whether judicial electrocu-

tion produces instant unconsciousness,

precluding conscious pain ............... 18

a. The condemned inmates’ witnesses... 18

>. The State's witness... .6.0s4ddccannn

iii

TABLE OF CONTENTS - Continued

E. PRE-ELECTROCUTION PAIN................ 24

1. How the mouth strap is designed and

TTT ere rere Te er TT eee OO 25

2. The risk of pain from the mouth strap... 28

SUMMARY OF THE ARGUMENT ................. 31

EE Wek in iia se vcas spec specee¥aabadacsceces 32

A. INTRODUCTION: THE GOVERNING

EIGHTH AMENDMENT STANDARDSG....... 32

B. THE FLORIDA SUPREME COURT HAS DIS-

REGARDED PROPER EIGHTH AMENDMENT

ANALYSIS AND AN INTOLERABLE RISK OF

PRRs PUREE sown cc ninssccucsvccsseveces 36

C. THE FLORIDA SUPREME COURT HAS DIS-

REGARDED ITS OBLIGATION TO CONSIDER

THE PSYCHOLOGICAL TORMENT, INDIG-

NITY AND BARBARIC DISFIGUREMENT

INFLICTED BY ITS ELECTROCUTION PRO-

ey rere err eee 41

1. Florida’s procedure involves exquisite

mretital Cruelty ...... cc ccc eccccccesscess 41

2. Florida’s procedure adds the horror of

uncertainty ..........cecccescrcecccccevee 44

3. The prospect of disfigurement enhances

the atrocity ......cccccccccccccscccnscvens 46

4. Florida’s method of electrocution is an

ptevistic barbariem. ...... 22. ccccccccssess 49

METI enccnescaecsccdvbisecsbccsweseueegess 50

TABLE OF AUTHORITIES

Page

CASES

Beck v. Alabama, 447 U.S. 625 (1980)................. 35

Bryan v. Moore, 120 S.Ct. 394 (1999) ...........cccee0. 1

Buenoano v. State, 565 So. 2d 309 (Fla. 1990)....3, 4, 47

Coker v. Georgia, 433 US. 564 (1977)... ..cccvesscess 35

Enmund v. Florida, 458 U.S. 782 (1982)............... 35

Estelle v. Gamble, 429 U.S. 97 (1976) .............. 32, 34

Farmer v. Brennan, 511 U.S. 825 (1994)............ 36, 40

Ford v. Wainwright, 477 U.S. 399 (1986)........... 35, 44

Furman v. Georgia, 408 U.S. 238 (1972)............ 34, 35

Gregg v. Georgia, 428 U.S. 153 (1976) ......... 32, H4,

Haynes v. Washington, 373 U.S. 503 (1963) ........... 39

Helling-v. McKinney, 509 U.S. 25 (1993)........... 36, 37

Hudson v. McMillian, 503 U.S. 1 (1992) .............. 33

Fiutto v. Finney, 4357 US. 676 (1978)... 2... cccasecess 34

In re Kemmler, 136 U.S. 436 (1890)... .........0000. 40, 49

In ve Mediey, 134 US. 160 (1G90) 1.0.0 cvcesconns 33, 46

Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968)........ 34

Jones v. Butterworth, 691 So. 2d 481 (Fla. 1997)...5, 6, 9

Jones v. Butterworth, 695 So. 2d 679 (Fla. 1997)... 2, 6, 9

Jones v. State, 701 So. 2d 76 (Fla. 1997)....2, 3, 6, 7, 9, 38

Lewis v. Jeffers, 497 U.S. 764 (1990) .............200-. 36

Lockett v. Ohio, 438 U.S. 586 (1978)...............

TABLE OF AUTHORITIES - Continued

Page

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459

<4 ee Oa re ar innr ery by ternerranrin ror mare ry ward 40

Maynard v. Cartwright, 486 U.S. 356 (1988)........... 36

Penry v. Lynaugh, 492 U.S. 302 (1989).............--- 35

Poyner v. Murray, 508 U.S. 931 (1993) ...........0e. 34

Provenzano v. Moore, 737 So. 2d 551 (Fla. 1999)....... 7

Provenzano v. Moore, 1999 WL 756012 (Fla. Sept. 24,

DIO io ook cove caged nasa kee sbi oh eepueeeEee hae passim

Rhodes v. Chapman, 452 U.S. 337 (1981).............. 32

Robinson v. California, 370 U.S. 660 (1962)......... 34, 40

Sochor v. Florida, 504 U.S. 527 (1992) .............6.. 39

Stanford v. Kentucky, 492 U.S. 361 (1989)...... 33, 34, 35

Stansbury v. California, 511 U.S. 318 (1994)........... 39

Thompson v. Oklahoma, 487 U.S. 815 (1988)........... 35

Trop v. Dulles, 356 U.S. 86 (1958)............. 33, 24, 3D

Weems v. United States, 217 U.S. 349 (1910)

Lcwite’s Vebeaneeeeeee nd aeeeretee ie 32, 33, 34, 48, 49

MISCELLANEOUS

C. Abengozar, B. Bueno & J. Vega, Intervention on

Attitudes toward Death along the Life Span, 25

EDUCATIONAL GERONTOLOGY 435 (1999) ..........505- 45

J. Arndt, J. Greenberg, S. Solomon, T. Pyszczynski

& L. Simon, Suppression, Accessibility of Death-

Related Thoughts, and Cultural Worldview Defense:

Exploring the Psychodynamics of Terror Manage-

ment, 73 JOURNAL OF PERSONALITY AND SOcIAL Psy-

CMY SIFT) ov ions dea eessvcervecaswcneset ous 42

TABLE OF AUTHORITIES - Continued

M. Basoglu & S. Mineka, “The Role of Uncontrolla-

ble and Unpredictable Stress in Post-traumatic

Stress Responses in Torture Survivors” in Tor-

TURE AND Its CONSEQUENCES: CURRENT TREATMENT

APPROACHES, 182-225 (Cambridge University

POS TOT) on i:k: 0 0 ee cses avs chee ke ones

E. Becker, The Denial of Death, 11-12 (Free Press

= ey 5 Emer Prey ere ry

E. Bendann, DeatH Customs 45-56, 83-89 (Knopf

BOOED 54 das esuedineee teasueass + teaneeeenees

Jeffrey Brainard, Faulty Execution Renews Debate:

Governor Orders an Investigation Into What Went

Wrong With the Chair After Flames Erupt From the

Inmate, St. Petersburg Times, March 26, 1997..

C. Brandon, The Electric Chair: An Unnatural Amer-

ican History, 205 (McFarland Publishers 1999) ..

D. Denno, Is Electrocution an Unconstitutional

Method of Execution? The Engineering of Death

over the Century, 35 WiLtiaAMs AND Mary L. Rev.

PR COED 5 6 9.0 hod eee ee eer tha ee Ceeers

R. Durham, The Cruel and Unusual Punishment and

Excessive Fines Clauses, 26 Am. Crim. L. Rev. 1617

be, PPPPEE TEL RETO T Te res Per ee

R. J. Evans, RiTuaAts or RETRIBUTION: CAPITAL PUNISH-

MENT IN GERMANY 1600-1987 (Oxford University

PO TOE: <4-s oie ckchdaeed sehen

V. Florian & M. Mikulincer, Fear of Death and the

Judgment of Social Transgressions: A Multidimen-

sional Test of Terror Management Theory, 73 Jour-

nal of Personality and Social Psychology 369 (1997) ....

Page

Vii

TABLE OF AUTHORITIES - Continued

W. Fordyce, Pain and Suffering: A Reappraisal, 43

AMER. PsyCHOLOGIST, 276 (1988) ...........-0.0 0 eee

Michael Foucault, Discipline and Punish, 14 (Alan

Sheridan trans., Vintage Books 2d ed. 1995)... .32,

A. Granucci, “Nor Cruel and Unusual Punishments

Inflicted: The Original Meaning”, 57 Cat. L. Rev.

Oa ns debe) x bcs 0 od aad pak Cae ks hen

Grisly Execution in Electric Chair Sickens Witnesses,

Flames Shoot from Convict’s Head as Florida Mur-

derer is Put to Death, San Jose Mercury News 1A

ge AR. Rr errs Teens eee

Jackie Halifax, Execution Method Debated: Legisla-

tors Defend Electrocution, Fla. Times-Union,

Es i eg le cee ine Uelekae eae

C. Haney, Psychological Secrecy and the Death Pen-

alty: Observations on “The Mere Extinguishment of

Life,” 16 Srupies in Law, Potitics AND Society 3

CES Ep NCVK Ka. hEA ER ERD ACAMERALWEAORROMER Cane ened

John S. Herbrand, Validity, Construction, and Appli-

cation of Statutes Making It A Criminal Offense to

Mistreat or Wrongfully Dispose of Dead Body, 81

eee Fe Re ePeere Teper rrr er TT Ty

L. Hoffman, The Madness of the Method: The Use of

Electrocution and the Death Penalty, 70 Texas L.

RO ee eee ee err Peery Pere rr

William Hogarth, The Four Stages of Cruelty, 1751....

Franz Kafka, In the Penal Colony .................05:

A. Koestler, Darkness at Noon (Macmillan 1941)......

E. Kubler-Ross, On Death and Dying (Macmillan

OE eT ee ey en Pye ee eee EE eer

Vili

TABLE OF AUTHORITIES - Continued

E. Kubler-Ross, The Languages of Dying Patients, 10

yo | ner earn rt ee

J. Lieberman, Terror Management, Illusory Correla-

tion, and Perceptions-of Minority Groups, 21 Basic

AND APPLIED SocIAL PsycHoOLocy 13 (1999) ......

R. Neimeyer, ed., Death Anxiety Handbook:

Research, Instrumentation, and Application (Taylor

Se TO BPs 6 kk bv on Rees bah ees

New York Herald, August 10, 1884...............

M. Patarelli & J. Bishop, Perceptions of Estimated

Pain Experienced During Execution: Effects of Gen-

der and Belief in Capital Punishment, 38 Omeca:

JOUNRAL OF DEATH AND Dyna, 103 (1998-99)....

A. Ploughaus, I. Tracey, S. Clare, et al., Dissociating

Pain from its Anticipation in the Human Brain, 284

Science (No. 5422) 1979 (1999) ................

T. Pyszczynski, J. Greenberg & S. Solomon, A Dual

Process Model of Defense Against Conscious and

Unconscious Death-Related Thoughts: An Exten-

sion of Terror Management Theory, 106 PsycHo-

Cocecas. Tveie Bae CAPE i vk cc bevcnessncuvsens

T. Pyszezynski, J. Greenberg, & S. Solomon, “A

Terror Management Perspective on the Psychology

of Control: Controlling the Uncontrollable” in M.

Kofta, G. Weary, et al., eds., PERSONAL CONTROL IN

AcTION: COGNITIVE AND MOTIVATIONAL MECHANISMS

85-108 (Plenum Press 1998)...................

David Sapsted, Electric Chair Sparks Another Grisly

Scene, Irish Independent 28 (July 9, 1999).....

Robert Louis Stevenson, The Body Snatcher ......

--_

TABLE OF AUTHORITIES - Continued

Supplemental Report: Execution Methods Used

ee Ns ce inh n bib v each ce Co Ks ina eh wheben chaens

Peter Wallsten, Medina Felt No Pain, Say Doctors,

St. Petersburg Times, April 1, 1997 ............

Marina Warner, No Go The Bogeyman: Scaring, Lull-

ing and Making Mock 133-134 (Farrar, Strauss

ee EE Ss 5 0c> cab Aaa ae ee adres

H. Wass, R. Neimeyer et al., eds., Dying: Facing the

Facts, 49-88 (3d ed., Taylor and Francis 1995) ..

Ron Word, Execution Fire Stirs Dispute: Electric

Chair Woes Could Delay Sentences, Fla. Times-

es a eardie weenie

BRIEF FOR PETITIONER

OPINION BELOW

The unpublished order of the Florida Supreme Court

was entered on October 20, 1999, and is reprinted in the

Joint Appendix (hereinafter “J.A.”) at page 6. The opinion

of the Florida Supreme Court in Provenzano v. Moore is

reported at 1999 WL 756012 (Fla. Sept. 24, 1999) and the

slip opinion, which will be cited in this brief, is reprinted

in the Joint Appendix (hereinafter “J.A.”) at pages 47-132.

JURISDICTION

The Florida Supreme Court entered its judgment on

October 20, 1999. The petition for certiorari was filed on

October 21, 1999, and granted on October 26, 1999. Bryan

v. Moore, 120 S.Ct. 394 (1999). This Court has jurisdiction

under 28 U.S.C. § 1257(a), petitioner having asserted

rights under the Constitution of the United States.

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Eighth and Fourteenth

Amendments to the Constitution, which provide in rele-

vant part:

“(Nor [shall] cruel and unusual punishments

[be] inflicted.”

U.S. Const. amend. VIII.

“No State shall . . . deprive any person of life

[or] liberty . . . without due process of law.

U.S. Const. amend. XTV, § 1.

STATEMENT OF THE CASE

A. THE SERIES OF EVENTS GIVING RISE TO

THESE PROCEEDINGS

As current was applied during Florida’s 1990 electro-

cution of Jesse Tafero, flame and smoke shot up around

his head (R3.42). When the electricity was turned off, Mr.

Tafero’s head was “nodding back and forth.” His chest

“was moving in.” He seemed “to be gasping for air.” A

leg moved (R3.43, Pet. Ex. 24, No. 40).1 The attending

physician reported that “spasmodic respiratory sounds

were audible” (Id.). The electricity-was turned back on.

Again flames and smoke rose from Mr. Tafero’s head

(R3.43-44). When the electricity was turned off, Mr. Taf-

ero’s head was nodding (R3.44). There “appeared to be a

couple of deep breaths from Tafero” (R3. Pet. Ex. 24, No.

40). The physician reported that “spasmodic respiratory

sounds produced oral and nasal fluid gurgling” (Jd.). The

electricity was turned on again.

Again flames and smoke shot up (R3.44-45). Now,

when the electricity ceased, Tafero was:still (R3.45). What

had happened was to be a subject of controversy that

would capture increasing judicial concern over the next

decade. “According to Robert H. Kirschner, M.D., Tafero

1 Citations in this brief are as follows: “R1. V[olume #].”

refers to the April 1997 hearing in Jones v. Butterworth, 695 So. 2d

679 (Fla. 1997), which is not consecutively paginated. “R2.”

refers to the July 1997 hearing in Jones v. State, 701 So. 2d 76 (Fla.

1997). “R3.” refers to the July 1999 hearing in Provenzano v.

Moore, So. 2d ___ (Fla. Sept. 24, 1999). Both “R2.” and “R3.”

are consecutively paginated. Exhibits are designated by the

appropriate record and exhibit number, with “Pet. Ex.”

referring to Petitioner’s exhibits and “St. Ex.” referring to

State’s exhibits. For example, “R3. Pet. Ex. 1” refers to

Petitioner’s Exhibit 1 in the July 1999 Provenzano hearing.

was not dead until the third jolt of electricity was admin-

istered arid may have remained conscious during the first

and second jolts.” Buenoano v. State, 565 So. 2d 309, 315

(Fla. 1990) (Kogan, J., dissenting). Visibly, Mr. Tafero’s

head “was burned and charred, his face was seared by

flames, and his eyebrows, eyelashes, and facial hair were

burned.” Jones v. State, 701 So. 2d 76, 87 (Fla. 1997) (Shaw,

J., dissenting).

During Florida’s 1997 electrocution of Pedro Medina,

first smoke and then flame rose from Mr. Medina’s head

(R3.78-79). The flames flared up 6 to 12 inches; the smoke

filled the chamber (R1. V3. 82, 86; R2.265, 282, 289). There

was no visible reaction by the execution team (R1. V8.

103). The prison superintendent said, “Proceed” (Id. at

144). After the electricity was turned off, Mr. Medina

“took a gasping breath. There was an interval, he took a

second gasping breath. There was another interval of

some seconds, and he took the . . . third gasping breath.

And after that third breath, I could see his body

slumped” (R3.83). Mr. Medina’s head “was burned and

charred and his face was scalded.” Jones, 701 So. 2d at 87

(Shaw, J., dissenting).

Allen Lee Davis was seated in Florida’s electric chair

in July, 1999. After all of the apparatus was affixed to Mr.

Davis, witnesses heard him make two separate sounds

described as “screams,” “yells,” “moans,” “high-pitched

murmurs,” “squeals” or “groans” (R3.162-63, 197, 217,

278, 280, 290, 706, 721-22), or like “a scream with someone

having something over their - their mouth. It obviously

was a great degree of anguish associated with it from the

sound of it” (R3.181). Members of the execution team

who heard these sounds ignored them because they were

not unusual during an electrocution (R3.330-31, 358-59,

398-99). Before the current was turned on, the one team

member who could see under the mask cover-ag Mr.

Davis’ face observed blood in Mr. Davis’ left nostril but

did not alert anyone because “it wasn’t nothing but a

nosebleed” (R3.327-28). Seconds after Mr. Davis’ body

tensed under electricity, witnesses saw blood coming

from beneath the mask, dripping down onto Mr. Davis’

collar, a pool of blood beginning to form a dinner-plate-

sized stain on his shirt (R3.166-68). After Mr. Davis’ body

stopped tensing, witnesses saw his chest move “back and

forth several times” (R3.168, 222). Post-execution photo-

graphs of Davis showed an “unquestionably violent” and

“ghastly” scene. Provenzano v. Moore, So. 2d ___ (Fla.

Sept. 24, 1999), slip op. at 52-53 (Shaw, J., dissenting). See

R3. Pet. Ex. 1.

Following Jesse Tafero’s fiery execution, Judy Bue-

aoano challenged Florida’s electrocution process as a

cruel and unusual punishment. Buenoano v. State, 565 So.

2d 309 (Fla. 1990). The Florida Supreme Court noted that

the Florida Department of Corrections [“DOC”] had

“determined that [in the Tafero execution] for the first

time a synthetic, rather than a natural, sponge had been

used in the headpiece” and “that the burning of the

sponge caused the flames and smoke.” Id. at 311. The

court “presumed that members of the executive branch

will properly perform their duties” regarding carrying

out death sentences, ruled that the Tafero mishap did not

“justif[y] judicial interference with the executive func-

tion,” and held, “[d]Jeath by electrocution is not cruel and

unusual punishment, and one malfunction is not suffi-

cient to justify a judicial inquiry into th: Department of

Corrections’ competence.” Id. Three justices dissented,

arguing that an evidentiary hearing should be ordered.

Id. at 311-15.

The Medina execution thereafter attracted renewed

attention. But not all agreed that serious concern was

warranted. Attorney General Butterworth commented

ee ee

that “People who wish to commit murder, they better not

do it in the state of Florida because we may have a

problem with our electric chair.” Ron Word, Execution Fire

Stirs Dispute: Electric Chair Woes Could Delay Sentences,

Fla. Times-Union, March 26, 1997, at Al. Florida Senate

Majority Leader Locke Burt stated that the alternative of

lethal injection “appears to be a medical procedure and a

painless death is not punishment. I think it’s important

that there is a deterrent and a punishment element.”

Jackie Halifax, Execution Method Debated: Legislators

Defend Electrocution, Fla. Times-Union, March 27, 1997, at

B7. Victor Crist, House Justice Council Chair, remarked,

“There is only one method that is sure and painless, and

that is the guillotine.” Word, supra, at Al. DOC Secretary

Singletary observed, “It’s not a perfect world. We sent the

space shuttle up and blew it up. Do we stop that? It’s not

a perfect world when human beings are involved.”

Jeffrey Brainard, Faulty Execution Renews Debate: Governor

Orders an Investigation Into What Went Wrong With the

Chair After Flames Erupt From the Inmate, St. Petersburg

Times, March 26, 1997, at 11A. State Senator Charlie Crist

concluded that “obviously the thing works. It did what it

was designed to do. It put [Medina] to death.” Peter

Wallsten, Medina Felt No Pain, Say Doctors, St. Petersburg

Times, April 1, 1997, at 5B. Alan Gutman, Chair of the

Senate Criminal Justice Committee commented: “[A]ll

those in Florida understand that if they kill someone,

they’re going to go through the same process.” Id.

Following Pedro Medina’s fiery execution, Leo Jones

challenged Florida’s electrocution process as cruel and

unusual punishment. Jones v. Butterworth, 691 So. 2d 481

(Fla. 1997). The Florida Supreme Court dismissed Jones’

“claim that execution by electrocution is unconstitutional

per se” as procedurally barred, but “[d]ue to the fact that

flames have erupted on two occasions during electrocu-

tions conducted in Florida’s electric chair,” it ordered an

evidentiary hearing on whether “electrocution in Flor-

ida’s electric chair in its present condition is cruel or

unusual punishment.” Id. at 482. Three justices dissented,

saying that the scope of the hearing should not be

restricted. Id.

A first (April 1997) hearing in the Jones case was

found to be inadequate, and the Florida Supreme Court

ordered another, Jones v. Butterworth, 695 So. 2d 679 (Fla.

1997), while “reiterat[ing] that the sole issue to be deter-

mined is whether or not electrocution in Florida’s electric

chair in its present condition is cruel or unusual punish-

ment.” Id. at 681. At the second (July 1997) hearing, Jones

presented expert witnesses in forensic pathology, neuro-

physiology, neurology and electrical engineering, as well

as additional lay witnesses to executions, and the State

presented additional medical and engineering witnesses.

The trial court found: the flame and smoke during

Medina’s execution were caused by an improperly moist-

ened sponge in the headpiece and this problem had been

fixed; “Medina’s brain was instantly and massively depo-

larized within milliseconds of the initial surge of electric-

ity”; DOC had adopted written testing and electrocution

procedures; the electric chair was in “excellent condi-

tion”; prison staff were “qualified and competent to carry

out executions”; and “[a]ll inmates who will hereafter be

executed in Florida’s electric chair will suffer no con-

scious pain.” Jones v. State, 701 So. 2d 76, 77 (Fla. 1997).

The trial court concluded as a matter of law that:

(1) Cruel or unusual punishment is

defined by the Court as the wanton infliction of

unnecessary pain.

(2) Florida’s electric chair, in past execu-

tions, did not wantonly inflict unnecessary pain

and therefore did not constitute cruel or unusual

punishment.

(3) Florida’s electric chair, as it is to be

employed in future executions pursuant to the

Department of Correction’s written testing pro-

cedures and execution day procedures, will

result in death without inflicting wanton and

unnecessary pain, and therefore, will not consti-

tute cruel or unusual punishment.

(4) Florida’s electric chair in its present

condition does not constitute cruel or unusual

punishment.

Jones, 701 So. 2d at 77-78 (citations omitted). The Florida

Supreme Court rejected Jones’ argument that a proper

analysis of his constitutional claim had to consider

whether electrocution involved an impermissible risk of

pain, holding that “[i]n order for a punishment to consti-

tute cruel or unusual punishment, it must involve torture

or a lingering death or the infliction of unnecessary and

wanton pain.” Id. at 79 (internal quotation marks and

citations omitted). Concluding “[t]here was substantial

evidence presented in this case that executions in Florida

are conducted without any pain whatsoever,” Id. at 79,

and finding “competent substantial evidence” to support

the trial court’s order, the Florida Supreme Court held,

“electrocution in Florida’s electric chair in its present

condition is not cruel or unusual punishment.” Id. at 80.

Thomas Provenzano’s execution was scheduled for

the day following Allen Davis’ bloody execution in 1999.

On Mr. Provenzano’s petition, the Florida Supreme Court

stayed his execution, allowed amendment of his bare-

bones petition, and ordered an evidentiary hearing on the

amended petition. Provenzano v. Moore, 737 So. 2d 551

(Fla. 1999). At this (July 1999) hearing, evidence was

received regarding Florida’s electrocution procedure, the

use of electrocution as a mode of execution in the United

States, and scientific analyses of electrocution as used for

this purpose.

The trial court concluded that the electric chair func-

tioned as intended in the Davis execution; that the Davis

execution did not violate the DOC’s written procedures;

that Davis did not die of asphyxiation from the mouth

strap; that Davis underwent instant and painless death

once the current was applied; that the nose bleed began

before the current was applied and was not caused by the

current; that the straps may have caused Davis discom-

fort but not unnecessary and wanton pain; that the mouth

strap is not part of the electrical operation of the electric

chair; that a redesigned mouth strap could accomplish

the same purpose as the present one; and that any pain

associated with the straps “is necessary to ensure that the

integrity of the execution process is maintained”

(R3.2297-98). Ultimately the trial court held that: “Execu-

tion by electrocution in Florida’s electric chair as it exists

in its present condition as applied [sic] does not consti-

tute cruel or unusual punishment, and therefore, is not

unconstitutional” (R3.2298).

By a vote of 4 to 3, the Florida Supreme Court

affirmed, holding that “Florida’s electric chair is not cruel

or unusual punishment.” Provenzano v. Moore, __ So. 2d

____ (Fla. Sept. 24, 1999), slip op. at 5. The appellate court

made no factual findings of its own but deferred to the

trial court’s conclusions under the state-law “competent

substantial evidence” standard. Id. at 4-5. All four justices

in the majority, however, urged the Legislature to adopt

the alternative of lethal injection. Id. at 9 (Harding, C.]J.,

joined by Lewis, J., specially concurring); id. at 15 (Wells,

J., joined by Quince, J., concurring). The three dissenting

justices argued that the majority had applied a flawed

constitutional standard to Mr. Provenzano’s claim. Id. at

24 (Shaw, J., dissenting); id. at 68 (Anstead, J., dissenting);

id. at 72 (Pariente, J., dissenting).

When Florida scheduled Anthony Bryan to be exe-

cuted, he filed a petition in the Florida Supreme Court

challenging his imminent execution by electrocution. Mr.

Bryan asked that the court adopt and consider the records

in Jones v. Butterworth, 691 So. 2d 481 (Fla. 1997), Jones v.

Butterworth, 695 So. 2d 679 (Fla. 1997), Jones v. State, 701

So. 2d 76 (Fla. 1997), Provenzano v. State, Fla. Sup. Ct. No.

95,849, and Provenzano v. Moore, Fla. Sup. Ct. No. 95,973,

in adjudicating his petition. He alleged that his execution

by electrocution would violate the Eighth Amendment in

that he would be subjected to an unconstitutional risk of

suffering, degradation, physical violence, disfigurement,

mutilation, pain, and lingering death in a number of

ways: through the forceful strapping procedure; through

the State’s employees’ ignoring his moans, screams,

bleeding or partial asphyxiation; through burning from

fire, scalding and/or electricity, not only at the electrode

points but on his face, forehead, groin, genitals and pubic

region; through violent convulsions as electricity reaches

his body tissues; through the failure of the electricity to

render him instantly insensible; through unpredictable

human errors in placing the head and leg electrodes;

through other unanticipated malfunctions; through being

made the subject of a ghastly display; and through the

psychological torment of awaiting his execution with

awareness of all these possibilities (Petition at 3-10).

On October 20, 1999, the Florida Supreme Court

granted Mr. Bryan’s motion to adopt the records and take

judicial notice of the several Jones and Provenzano pro-

ceedings. Pursuant to its opinion in Provenzano, it denied

Mr. Bryan’s petition on the merits. This Court granted

certiorari.

B. THE PRACTICE OF ELECTROCUTION AS A

METHOD OF EXECUTION

Twenty-six states at one time authorized execution by

judicial electrocution (R3. Pet. Ex. E at 4). Of the twenty-

six, twenty-two have now abandoned electrocution com-

pletely or as the sole method of execution.? No State has

adopted judicial electrocution since 1949.3 Thus, at pre-

sent, among the thirty-eight States that still use capital

punishment,‘ only four - Florida, Alabama, Georgia, and

Nebraska — mandate judicial electrocution as the mode of

killing. No jurisdiction outside the United States uses

judicial electrocution to administer capital punishment.®

The Florida Corrections Commission analyzes the

status of Florida’s corrections system and recommends

changes in that system to the Governor and Legislature.

Fla. Stat. § 20.315(4)(b)(2) (1995). In 1997, after the

Medina execution, the Commission conducted a survey of

execution methods in other states and presented its find-

ings and recommendations in Supplemental Report: Execu-

tion Methods Used By States (J.A. 144-238; R3. Pet. Ex. E).

The Commission recommended that Florida enact legisla-

tion allowing lethal injection as an alternative to electro-

_cution for persons currently on death row and as the sole

method for those sentenced to death after the legislation

2 R3. Pet. Ex. E at 4 (in 1997, six states used electrocution as

the sole means of execution); R3. Pet. Exs. A, B (by 1999,

Tennessee and Kentucky had also abandoned electrocution).

3 Provenzano v. Moore, slip op. at 56 (Shaw, J., dissenting);

1949 W. VA. ACTS 37 (West Virginia in 1949, was the last state to

adopt judicial electrocution).

4 R3. Pet. Ex. E at 7.

5 Provenzano v. Moore, slip op. at 56-57, 67 (Shaw, J.,

dissenting).

became law (Id. at 28). In preparing its report, the Com-

mission conducted a telephone survey of seventeen States

to discuss their methods of execution (R3. Pet. Ex. E at 8).

If a State had changed from electrocution to lethal injec-

tion, its officials were asked what prompted the change

(Id. at 9). The most common reason given was that lethal

injection was considered a “more humane method of

execution” (Id. at 10).

C. VIOLENCE, MUTILATION AND PHYSICAL

INDIGNITY

Neither the trial courts nor the Florida Supreme

Court have addressed Bryan’s contention that electrocu-

tion violates the Eighth Amendment because of its vio-

lence, mutilation of the body and visible barbarity.

Dissenters on the Florida Supreme Court have noted the

majority’s failure to address these issues. Provenzano v.

Moore, slip op. at 24 (Shaw, J., dissenting) (in Jones, “[t]he

Court did not address violence or mutilation”); id. at 25

(the trial court in Provenzano “did not address the issues

of violence or mutilation or the overall record of electro-

cution as a method of execution in Florida”). By default,

the dissenters’ conclusions that violence and mutilation

are inherent in the Florida electrocution procedure stand

as the only judicial findings in the record on this point.®

6 See Provenzano v. Moore, slip op. at 43-44 (Shaw, J.,

dissenting) (“[nJot only was every execution in Florida

accompanied by the inevitable convulsing and burning that

characterizes electrocution, but further, three executions in

particular were marred by extraordinary violence and

mutilation”) (footnote omitted); id. at 52-53 (photographs of

Davis “show a ghastly post-execution scene” which is

“unquestionably violent”); id. at 53 (“[iJn even the ‘successful’

executions, the inmate was subjected to violence (i.e., the inmate

was administered an electrical force that caused him to convulse

Those conclusions reflect the substantial evidence

presented to the Florida courts on the subjects of the

physical harrowing, degradation, and disfigurement

worked by the Florida electrocution machinery. Witnesses

to the electrocution process describe the condemned’s

body contracting forcefully and thrusting against the

chair and straps when the electricity is engaged. Experts

explain that this phenomenon results from electrical stim-

ulation of muscle cells, causing the skeletal muscles to

tetanize and pull against each other (R3.450, 573-75,

653-54). The same electrical effect paralyzes the respira-

tory muscles (R3.654). Post-electrocution examination

shows characteristic physical deformations such as those

seen in the following examples:

(1) Allen Davis’ body displayed a halo of electrical

burns on the scalp, burns on the right side of the face and

above the eyebrow, an arcing burn on the lower abdomen

or suprapubic region, a burn on the inner aspect of the

right thigh, and a burn on the right calf (R3.740-41). The

burns to his suprapubic region and inner right thigh were

“full thickness burns,” meaning that they extend all the

way through the skin to the subcutaneous tissue (R3.756).

These are “arcing burns” which occur when “the electric-

ity comes out of the skin or travels in the subcutaneous

tissues under the skin and is exited at that particular

point and perhaps even re-enters the skin there” (R3.756).

violently) and mutilation (i.e., the body of each inmate was

burned on the head and leg as a result of the electrocution

process)”); id. at 71 (Anstead, J., dissenting) (“electrocution

always involves mutilation (within and without the body) and a

substantial risk of malfunction (including external burning,

bleeding, asphyxiation, etc.), as well as a culture of cruelty

(‘burn ‘em,’ ‘fry ‘em’)”); id. at 81 (Pariente, J., dissenting) (“it is

undisputed that despite all of the best efforts, electrocution will

result in burning of parts of the body”).

The headpiece sponge came down over Mr. Davis’ fore-

head, causing burns, and below those burns are addi-

tional “drip burns” (R3.759, Pet. Ex. 1-H). “Drip burns”

are not arcing but are “electrical burns associated with

the saline in the sponge that is dripping down to the

eyebrow” (R3.759).7

(2) Photographs of Leo Jones’ body show a °/s-inch

deep wound in the top of the head, a wound on the right

leg, a wound near the left temple, a swollen area on the

back of the head, a chest puncture '/s of an inch in

diameter, a severe burn from '/s to 1/4 of an inch deep

going from the calf up to the knee, and a swollen area on

the face (R3.135-38; Pet. Ex. 4). Up to 5:30 a.m. the morn-

ing of his 7:00 a.m. execution, Mr. Jones did not have

these wounds on his body (R3.139, 150).

(3) Pedro Medina’s autopsy revealed a “burn ring of

the scalp with deposits of charred material,” “a scald

injury of the scalp and face” and a “circumferential” burn

of the right calf (R1. V9. 78-79). Part of the scalp burn

extended “full thickness through the scalp to the bone”

(R2.915). From Medina’s forehead down to his nose and

cheeks, the skin was scalded from steam (Id. at 915-16).

D. THE RISK OF CONSCIOUS PAIN DURING ELEC-

TROCUTION

The record presented to the Florida Supreme Court

contains substantial evidence (including expert testi-

_ mony) adduced by condemned persons to prove that

electrocution under Florida’s procedures involves the

conscious experience of intense physical pain. The State’s

7 In Mr. Davis’ execution, the head sponge was “very wet”

and a lot of water dripped on Mr. Davis’ back and front (R3.321,

322-23). According to execution team members, the head sponge

is supposed to be dripping wet (R1. V4. 45, 119; R3.1371).

sole rebuttal took the form of evidence (including expert

testimony) aimed to prove that the application of electric

current to an inmate under Florida’s procedures inevita-

bly causes instantaneous destruction of the brain’s capac-

ity to experience sensory stimulation (including-pain). In

this section, we summarize the evidence on both sides of

this issue, for the purpose of showing that the record as a

whole establishes the existence of a significant risk of

conscious physical pain attending a Florida electrocution,

and that the factual findings made on the point by the

courts below fail to address all of the dimensions of this

risk.

Experts presented by both parties in the Jones and

Provenzano hearings agreed that the electrical activity of

the brain during a judicial electrocution has never been

measured and cannot be measured because the electrical

current from the execution would obscure any measuring

devices (R3.635, 637; R2.408, 677, 1038-39). The experts

also agreed that no scientific experiments have been con-

ducted applying 2300 volts —- the maximum amount

administered during Florida’s electrocution procedure —

to a human being (R2.422, 465, 711, 1038).8 There are no

published scientific studies regarding the path that elec-

trical current follows through a person’s body during a

judicial electrocution (R2.476, 677, 705-06). No one knows

how much current is necessary to instantly disable the

brain because it is impossible to conduct such a study

(R3.683; R2.711).

Experts for both parties also identified another area

of inveterate uncertainty. They agreed that it is difficult to

8 Under the Florida procedure, electricity is supposed to be

delivered to the condemned for 34 seconds. The circuitry is

preset to deliver 2300 volts for 8 seconds, 1000 volts for 22

seconds and 2300 volts for 8 seconds (R1. V6. 209), but the last

8-second period is manually cut off after 4 seconds (R1. V4. 188).

determine from an external examination whether or not a

person is conscious (R2.663, 1045): Patients who were

believed to be unconscious from external examination are

sometimes later able to recount details of their surround-

ings and events that occurred while they were thought to

be unconscious (Id.). Autopsy cannot determine the

moment a person became unconscious (R2.144, 1038).

On the subjects of consciousness and the risk of

conscious pain, the condemned inmates presented the

following experts: John Wikswo, Ph.D., who specializes

in physics, biological physics, electromagnetics, biomedi-

cal engineering and electrophysiology (R3.611-12); J.

Patrick Reilly, an expert in the effects of electricity on

biological systems including the human body (R3.545);

Orrin Devinsky, M.D., who specializes in neurology and

clinical neurophysiology (R2.647); and Donald Price,

Ph.D., a neurophysiologist (R3.406). Wikswo, Devinsky

and Price testified that judicial electrocution is unlikely to

result in instantaneous unconsciousness and is likely to

result in extreme conscious pain. Reilly explained the

fundamental background principles regarding the effect

of electricity on biological tissues.

On these issues, the State presented the following

experts: Kris Sperry, M.D., a forensic pathologist (R3.852);

William Hamilton, M.D., a medical examiner (R3.1054); B.

J. Wilder, M.D., a neurologist specializing in epilepsy

(R3.1128); and Michael Morse, Ph.D., a biomedical engi-

neer (R1. V7. 13).9 These witnesses testified that judicial

electrocution instantly disables the brain so that the con-

demned experiences no pain.

9 The State also presented emergency room physician

Bullard, who had no opinion on the effects of electrocution on

the brain (R3.1312), and cardiologist Goldman, who did not

discuss the effects of electrocution on the brain (See R2.757-801).

1. Background data and scientific principles

a. The effects of electrical trauma on con-

sciousness

Wikswo, Price and Devinsky recited case studies

reported in the scientific literature regarding people who

suffered high voltage electrical trauma, including head

contact with high voltage, but retained consciousness

during the event and were able to describe the pain they

experienced (R3.639-45; J.A. 133-143; R2.352-53, 680-84).

Wikswo’s review of the literature indicates that “there is

no single threshold [of current] for loss of consciousness”

(R3.683). Devinsky described a patient whose head con-

tacted over 3,000 volts, with the current exiting from his

feet, but who “recalled a very painful sensation”

(R2.678-80). Wilder agreed that victims of high voltage

electrical accidents “are not necessarily rendered uncon-

scious” and that victims of lightning strikes often

describe feeling pain (R2.1043-44).!° Other evidence bear-

ing on the question whether the brain is instantly inca-

pacitated by electricity includes reports about people

who have undergone electroconvulsive therapy

[“ECT”].11 Devinsky and Price testified that patients who

had undergone ECT before anesthesia was used were not

rendered unconscious but reported painful experiences

10 Sperry described patients who touched a wire carrying

15,000 to 20,000 volts with their hands and suffered deforming

burns of their hands and arms (R3.902-03). When they came into

the emergency room, they were conscious (R3.903). They were

alive when found and did not have to be resuscitated (R3.903).

11 ECT is performed by placing two electrodes on the scalp,

either on the temples or on the forehead and back of the head to

try to direct the current directly across the brain (R2.685, 1001).

ECT uses 120 to 150 volts (R2.684, 1000). Before 1960, no

anesthesia was used during this procedure (R2.685).

(R2.356, 685-86). Morse agreed ECT patients report pain

and discomfort (R1. V8. 56).

b. The amount of current reaching the brain

In lay terms, electricity generally follows the path

offering the least resistance (R1. V8. 36). When a human

body is part of the electrical circuit, as in a judicial

electrocution, the body provides resistance (R2.551, 691).

Body tissues have differing resistances and thus provide

a variety of paths for electrical current to follow (R2.396,

439, 557, 689, 1016, 1022, 1028, 1192). Bone is among the

most resistive body tissues, while blood vessels and mus-

cles are among the least resistive and hence most highly

conductive (R2.228, 396, 439-40, 691-92, 1036; R1. V8.

36-37, 44).12 Thus, it cannot be assumed, simply because

there are electrodes on the head and leg during a judicial

electrocution, that the current follows the shortest path

from the head to the leg. The brain is shielded from the

current by the highly resistive skull and by highly con-

ductive tissues such as the scalp outside the skull and the

cerebral spinal fluid inside the skull (R2.430, 691-92;

R3.434, 561-63, 567-69).}5

Another important background principle in consider-

ing the physiological effects of electricity is that current

density, rather than current alone, is associated with

12 Sperry recognized that current coming into the body

through the head electrode would spread out and that the path

the current would follow depends upon the resistance of body

tissues (R3.895-97). Wilder and Morse agreed (R3.1179-80; R1.

V7. 101, V8. 36-37).

13 The burn ring on the head of an electrocuted person

confirms that the skull is deflecting current (Wikswo 1997 report

at 14-17). If the skull was not deflecting current and current was

not therefore traveling towards the edge of the head sponge, the

burn would be a solid disk rather than a ring (Id.).

degrees of tissue destruction (R3.560). High current den-

sity is more likely to cause physiological damage than

low current density (R3.560-61). In a judicial electrocu-

tion, the current density at any one point in the body is

less than the current coming in (R3.561-63), and current

density will not be uniform throughout the body

(R3.567).!4

2. The debate over whether judicial electrocution

produces instant unconsciousness, precluding

conscious pain

a. The condemned inmates’ witnesses

Because consciousness is not controlled by one par-

ticular area of the brain and because areas of the brain

react differently to electrical current, Devinsky testified

that it is not likely that judicial electrocution causes

immediate unconsciousness (R2.661, 732). Price explained

that regions controlling arousal and consciousness are

located deep in the brain, removed from the source of the

current, so the current density in those areas is likely to

be less than in superficial areas (R2.385). Based upon

behavioral, neurophysiological and anatomical evidence,

Price testified that “it is highly, highly unlikely that the

initial current surge [in a Florida judicial electrocution]

would instantly and permanently . . . incapacitate the

human brain” (R3.430; R2.385). Wikswo testified that “it

may be possible for an inmate to maintain consciousness

for 15 to 30 seconds into the execution” (R3.650).

14 Although no actual measurements have ever been made

(R3.571), Reilly estimated that during a judicial electrocution

the current density in the scalp will be about 50 times higher

than that within the brain (R3.569-71).

——$—— eee ee

In addition to the scientific evidence and principles

discussed above, two categories of observations of judi-

cially electrocuted persons indicate that unconsciousness

is not likely instantaneous. First, witnesses regularly

report that the condemned person exhibits breathing-like

motions of the chest after the electricity stops. Numerous

witnesses to the Davis execution reported that Mr. Davis’

chest expanded two to four times over several minutes

after the electricity stopped (R3.168, 201, 222, 228, 294,

303, 334, 708, 1027, 1041). One Davis witness, a prison

employee who had attended more than 10 executions,

saw that type of chest movement in several of them

(R3.296). The phenomenon was reported in the Tafero

execution (R3.43-44; Pet. Ex. 24, No. 40), the Medina

execution (R3.83, 239-40; R1. V5. 106), and the Jones exe-

cution (R3.127-28).

The significance of the chest movements is that respi-

ration is controlled by the brainstem (R2.70-72, 175-77,

696-97, 943-44, 957, 1011, 1029). Even respiratory move-

ments which are not frequent or deep enough to take in

oxygen effectively still indicate brainstem function

(R2.72, 198, 733, 1011-12).15 If the brainstem, which is part

of the brain (R2.1063-64), retains some function after the

electrocution cycle is complete, it follows that the per-

son’s whole brain was not instantly incapacitated at the

beginning of the cycle (R3.627-29, 751; R2.189-90).1¢

15 Wilder agreed that breathing motions at the end of an

electrocution could indicate a “firing of neurons” in the

respiratory center of the brain stem (R3.1197). Sperry testified

that such breathing motions “would mean that at least the brain

stem still had some minimal functioning” (R3.999).

16 Respiratory centers are located deep within the brain

and are close to the deep pain centers (R3.440). Thus, if there is

evidence of respiratory actions after an electrocution, it is likely

Second, sometimes the condemned has a palpable

pulse after the electricity stops. When physician’s assis-

tant Mathews examined Pedro Medina after the execu-

tion, Mathews felt an agonal pulse or irregular beat in Mr.

Medina’s wrist (R3.1046). Mathews has attended about 30

executions, and it is not unusual to find such a pulse (R1.

V5. 104). Mathews sometimes hears twelve to twenty-four

erratic, irregular heartbeats after an execution (Id. at 113).

With Mr. Medina, Mathews also heard irregular heart

sounds with a stethoscope (Id. at 113, 116). Dr. Almojera,

who approached Mr. Medina only after Mathews exam-

ined him for 3 to 5 minutes, heard “gurgling” sounds in

Mr. Medina’s chest indicating air and fluid moving (R1.

V9. 128, 137).

The fact that the heart can continue to function after

the cessation of the current also indicates that uncon-

sciousness is not instant. A pulse can occur only if the

heart is beating and pumping blood (R2.53, 174, 669, 783,

_797, 1033). The heartbeat is created by regular electrical

impulses flowing in the heart (R2.666, 764-67). Because

both the heart and the brain rely on organized electrical

chemical activity to function, the heart is a model of how

electrocution affects the brain (R2.383). If the heart’s

operation is not immediately and totally stopped, there is

no basis for saying the brain’s operation is immediately

and totally stopped (R2.382-84, 699, 212). In fact, the brain

is more likely to continue functioning than the heart

because the brain is protected by the skull which offers

greater resistance to the current than the soft tissues and

fluids surrounding the heart (R2.384, 699).

Based on the evidence and scientific principles

described, Wikswo, Price and Devinsky concluded that

that the pain centers in that area were not instantly and

permanently destroyed (R3.440).

judicial electrocution is not instantly incapacitating

(R3.430, 650; R2.376, 675). Thus, Price believed that “there

is a very high likelihood that judicial electrocution . . . is

excruciatingly, intensely painful and produces feelings of

horror, dread and other negative experiences” (R2.352;

R3.423). He explained that electrocution causes both

direct and indirect pain: Direct pain results from the

current activating particular areas of the brain, while

indirect pain is caused by the current’s effect on other

bodily tissues such as stoppage of the heart, asphyxiation

or the full contraction of skeletal muscles (R2.361, 379,

405; R3.424).

Devinsky agreed that judicial electrocution can cause

conscious pain and suffering and that electrical current

causes both spasmodic muscle contractions and repetitive

activation of the brain’s nerve cells (R2.676, 670). In addi-

tion, Devinsky testified, “for the electricity to get into the

brain it has to pass through at least four pain sensitive

structures, so one would expect there would have to be

initial pain” before consciousness is lost (R2.699).

Wikswo explained that during the period of con-

sciousness, the condemned will experience several kinds

of pain (R3.653). All skeletal muscles will tetanize and

pull against each other, causing intense pain (R3.653-54).

The respiratory muscles are paralyzed, so blood levels of

carbon dioxide rise quickly, creating a sense of suffoca-

tion (R3.654). The current will also directly stimulate pain

centers of the brain so that the brain perceives pain

elsewhere in the body, although the sensations are gener-

ated within the brain (R3.655).17

17 Price has made direct observations of this phenomenon

when neurosurgeons or physiologists have placed electrodes

deep in the brain and stimulated the brain with electricity

(R3.426). Such a direct application of electricity to brain cells can

b. The State’s witnesses

Sperry testified that a current level such as that

applied to Allen Davis causes instant unconsciousness

(R3.849-50), and that death occurs “within seconds as the

brain is heated well above a temperature from which it

cannot recover” (R3.851, 873-74). Wilder testified that

current such as that in the Davis execution would cause

unconsciousness in milliseconds (R3.1150-51) and dis-

ables structures deep in the brain, such as the brain stem

(R3.1152). Wilder testified that within a few milliseconds,

the person could not receive any sensation (R3.1152).

Morse testified that Pedro Medina was rendered instantly

unconscious and unable to feel pain (R1. V7. 16-17). He

based this opinion on reports in the scientific literature

that people who have survived electric shocks in the head

have no recollection of pain (Id. at 105-06).18

Neither Morse nor Sperry was familiar with any

instances of people having head contact with high volt-

age and retaining consciousness (R1. V8. 55-56, 57;

R3.884-85). Wilder was aware that people have survived

head contact with high voltage and have remembered

cause the person to feel pain (R3.426). If an area of the brain

responsible for perceiving pain is directly stimulated with

electricity, the person will feel pain even if there is nothing

causing a pain to the person’s body (R3.435-37, 450). Wilder

agreed that this phenomenon occurs (R3.1167-68).

18 Hamilton believed that applying the current level used

in the Davis execution through a current path from head to leg

results in immediate loss of consciousness and death (R3.1079).

In Hamilton’s opinion, the current path was “from the top of the

head through the brain, brain stem, through the center of the

body, then exiting out through the electrode on the leg”

(R3.1079-80). Hamilton believed that skin is the most resistant

body tissue and did not know how bone “rates in body tissues

as far as conductivity” (R3.1123).

these events (R3.1161-62). Regarding individuals who

have reported retaining consciousness while contacting

100,000 volts, Wilder testified, “I think it is a discussion

that you really — it is very difficult to pursue because you

are talking about massive voltages and currents and you

are trying to apply that to a normal physiological situa-

tion, and I can’t do that” (R3.1173).

Wilder had not seen any information about judicial

electrocutions in which the current cycle was completed,

the person was seen moving, and the current cycle was

then repeated (R3.1183). He believed information about

breathing motions at the end of an electrocution “is not

significant” (R3.1199). Sperry had no information about

condemned people exhibiting chest movements after the

current was turned off and thus could render no opinion

about that (R3.998). Morse could not discuss the signifi-

cance of breathing motions, as that was beyond his exper-

tise (R1. V7. RVII. 112).

Sperry had not studied electricity (R3.893). Although

he was of the view that a thermal effect disables the brain

during electrocution, he had done no research into how

fast the thermal effect occurs (R3.894). Sperry knew of no

studies showing exactly how fast the temperature will

rise in the brain during electrocution: “To my knowledge,

no one’s ever done that sort of research. No, I don’t think

you could” (R3.895). Sperry agreed that the thermal effect

of current would depend upon the current density at any

particular point (R3.1012). Sperry had no opinion about

the minimum current required to disable the brain

(R2.929, 955), did not know the resistance of the skull or

how much current passes through the skull into the brain

(R2.936), had no training in determining the path of elec-

tricity through the human body (R2.941), and had not

studied the effects of electricity on the brain (R2.945).

Wilder testified that although studies have been done

to determine how to guarantee a specific current pathway

during electroconvulsive therapy, “you can’t really guar-

antee a certain pathway” (R3.1189). In the case of current

entering through the head electrode and sponge used in a

Florida judicial electrocution, Wilder “would have no

way of knowing” how much current went into each brain

cell (R3.1179, 1182). Wilder was “not terribly familiar

with” the concept of current density (R3.1178), was “cer-

tainly no expert in electrical phenomena” (R2.1012), did

not have much expertise regarding the resistance of the

skull (R2.1015), was not sure about the resistance levels of

different types of bone (R2.1022), had not studied the

path electrical current follows in the body (R2.1035), did

not know the amount of current which reaches the cortex

during a judicial electrocution (R2.1051), and did not

know the amount of resistance the current must over-

come before reaching the cortex (R2.1053).

In April 1997, Morse had not done any studies of the

current path during a judicial electrocution (R1. V8. 38).

He was “just starting into . . . the way current might

distribute itself in an execution” and did not know the

current path (Id. at 42, 58). In July 1997, Morse had done

some “preliminary” work regarding the “nagging ques-

tion” of “where the current goes when it leaves the head

piece” in a judicial electrocution (R2.1145). Based on this

“preliminary” model he concluded that the electrical cur-

rent administered during a judicial electrocution instantly

disables the brain (R2.1155).

E. PRE-ELECTROCUTION PAIN

In the Florida Supreme Court, Mr. Bryan argued that

execution in Florida’s electric chair involves an undue

risk of painful asphyxiation because of the design of the

ae Ge

mouth strap and the manner in which it is affixed. In

Provenzano, the trial court had made the findings summa-

rized at pages 8-9 supra regarding the mouth strap,

including findings that: (1) Davis’ death “did not result

from asphyxiation caused by the mouth strap”; (2) the

mouth strap “may have caused Davis to suffer some

discomfort,” but not “unnecessary and wanton pain”; (3)

execution “may involve some degree of pain” including

pain from straps, but “any pain associated therewith is

necessary” to ensure “the integrity of the execution pro-

cess”; and (4) the use of a mouth strap “may be desirable,

but “a smaller and/or redesigned mouth strap could

accomplish the same purpose.” (R3.2297-98). Noting the

latter finding, the Florida Supreme Court majority said

that “it may be appropriate for DOC to revisit . . . the use

of the mouth strap,” but the majority did not discuss

whether there was a risk of pain associated with the

present mouth strap or how much. Provenzano, slip op. at

5. The pertinent evidence is this:

1. How the mouth strap is designed and affixed

In Florida a condemned person’s legs, arms, waist,

chest and head are strapped to a wooden chair, and

electrical circuitry is attached to the person’s head and

right calf. Since May, 1992, prison employees Thomas,

McNeill and Hackle have been responsible for strapping

the condemned to the chair and electrical circuitry

(R3.306; 313; 345; 351). Each man determines how tight to

affix the straps (R3.316). Thomas is supposed to affix the

straps “[a]s tight as I can get them” (R3.316). McNeill

makes sure the straps he affixes are “tight and snug”

(R3.353-54).

Petitioner’s Exhibit 5 in Provenzano is the mouth strap

used in a series of executions, including Allen Davis’

(R3.316-17, 349, 830).19 The mouth strap is “at least an

eighth of an inch thick” (R3.1407), solid leather and cov-

ers the mouth, extending from the chin to the bottom of

the nose (Pet. Ex. 1-I1).2° In Mr. Davis’ execution, Hackle

pulled the mouth strap “tight” (R3.318, 320). Before the

mouth strap is applied, Warden Crosby asks the con-

demned for a last statement, because after the mouth

strap is-applied, the person is unable to speak

(R3.1362-63).

The way the mouth strap was placed on Davis is the

way it has been done in all other Florida executions

(R3.340).21 The State stipulated that the mouth straps

used in other executions were the “same in design, pur-

pose and function” as that used on Davis (R3.74, 86-87).

Thomas agreed with the court that the mouth strap was

19 Witnesses have referred to Petitioner’s Exhibit 5 as either

the mouthpiece, mouth strap or chin strap. To avoid confusion,

this device will be referred to in this brief as the mouth strap.

20 See Provenzano, slip op. at 48 (Shaw, J., dissenting)

(“[W]hen Davis was being strapped into the chair, guards

placed a solid leather mouth-strap across his mouth and nose

area. This mouth-strap is wide — approximately five inches from

top to bottom — and it covered the entire lower portion of Davis’

face from the bottom of his chin to immediately below his nose.

The strap was fastened so tightly against his face and was so

wide that it pushed his nose severely upward, blocking his

nostrils at least partially. A heavy fabric face-mask was placed

on top of this apparatus, further occluding his airway. And

then . . . blood began flowing from his nose prior to

electrocution. This too obstructed his nostrils.”).

21 Walter Zant, former Georgia death row warden, testified

that in Georgia a condemned person’s head is affixed to the

electric chair by means of a chin strap similar to that found ona

football helmet (R3.1292). This strap does not, like Florida’s,

cover the person’s mouth, and it does not obstruct the person’s

ability to breathe (R3.1299, 1303).

tightened as in Petitioner’s Ex. 1-I, which shows “the

mask covering his mouth is so tight against, it’s pushing

the nose up to the side, and the blood is then coming

directly down on the strap” (R3.328). The autopsy reports

on the deaths of Jesse Tafero and Theodore Bundy note

the presence of strap mark impressions on the face and

ankles (R3.1852, 2017, 2019).

After the mouth strap is in place, the headpiece is put

on (R3.320; Pet. Ex. 7).22 The headpiece mask covers the

condemned’s face as soon as the device is put on the

head, so when its chin strap is being tightened and there-

after, no one but Thomas can see the condemned’s face

(R3.354, 360, 819, 834, 838, 1033). The chin strap of the

headpiece is positioned and tightened on top of the previ-

ously attached mouth strap (R3.834, Pet. Ex. 1). Thus,

tightening this chin strap affects the tightness and posi-

tion of the mouth strap (R3. Pet. Ex. 1). Thomas fastens

this chin strap “tight” (R3.323). According to Crosby, the

chin strap is to be pulled “snug,” but he “would not

expect it to be pulled as tight as it could be pulled”

(R3.1365): “If you pull that thing as hard as you could,

you're liable to choke him or break his jaw or something”

(R3.1366).

Between the time when the mouth strap was secured

to Mr. Davis and the tightening of the chin strap, ten to

twenty seconds elapsed (R3.324). After the chin strap is

tightened, Hackle attaches the electrical circuitry to the

headpiece (R3.325). This took about twenty seconds in

Mr. Davis’ execution (R3.325).

22 The headpiece consists of the head electrode, a fabric

mask which conceals the condemned person’s face, and a chin

strap (See R3. Pet. Ex. 7).

John Moser watched the clock in the execution cham-

ber as the Davis execution progressed (R3.153-54). When

all the apparatus had been affixed, the clock showed 7:05

(R3.162). There was a lull in activity; then at 7:10, Davis’

body tensed (R3.162). Closer to 7:10 than to 7:05, Moser

heard “two distinct .. . screams” from Davis (R3.162-63).

Thomas noticed blood coming from Davis’ left nostril

before the current was turned on (R3.326-27, 332).

Thomas did not alert anyone that Davis was bleeding

(R3.329-30). Victor Seryutin, the attending physician at

the Davis execution, has attended five or six executions

(R3.297-98). His responsibility at an execution is solely to

certify death (R3.298; see also R3.1368). When he saw

Davis bleeding after the electricity was engaged, Seryutin

had no responsibility to take any action to stop the execu-

tion or to treat Davis (R3.298). Seryutin believed the

bleeding was caused by the tightness of the mouth strap

breaking small blood vessels or by Davis struggling to

breathe (R3.299-300).

2. The risk of pain from the mouth strap

Provenzano’s witness Robert Kirschner, a forensic

pathologist, performed an autopsy on Allen Davis

(R3.733). The examination disclosed petechial hemor-

rhages, which are “small pinpoint bleeding sites or hem-

orrhages that were present around the eyes, on the

eyelids and .. . in the eye on the sclera” (R3.741, 742-43).

Such hemorrhages “are frequently associated with

asphyxiation” (R3.741, 743-44), which results from “lack

of oxygen, either due to inability to breathe or to some

obstruction of the airways, either externally or internally”

(R3.741).

Based upon the position of the mouth strap pushing

against Mr. Davis’ nose and occluding his mouth and

upon the presence of petechial hemorrhages, Kirschner

formed the opinion that Davis was suffering partial

asphyxiation before current was applied (R3.747-48, 752)

and that Davis “was suffering from conscious pain dur-

ing that period of asphyxiation, the pain being that of air

hunger, which is a very powerful reflex, and a feeling of

suffocation is what is occurring” (R3.758).2

In rebuttal, Respondent presented Kris Sperry, a

forensic pathologist who observed Kirschner’s autopsy of

Davis (R3.852). Sperry and Kirschner agreed that the

bleeding came from the left nasal cavity (R3.857). Sperry

did not dispute that petechiae were present in the

numbers and distribution Kirschner described (R3.918),

and he agreed that photographs of Davis show conges-

- tion on his face, chin and neck (R3.866-67). (Congestion

means that the blood vessels are filled with blood

(R3.866), and does not occur after death (R3.867).74)

Sperry explained the congestion as resulting from Davis

holding his breath (R3.927-28, 989): “obviously with the

mouth strap on, -he could not breathe through his mouth,

but the nostrils are unoccluded” (R3.994; see Pet. Ex.

23 Rabbani Muhammed witnessed the 1998 execution of

Leo Jones (R3.111-12). The mouth strap applied to Jones was

similar to the one used in the Davis execution. (R3.114). In

Jones’ case the strap was “tied very tightly. I could see his — the

flesh bulge from the tightness of the strap” (R3.117).

Muhammed had earlier instructed Jones to signal if he could not

breathe (R3.118-19). After all the apparatus was applied,

Muhammed saw Jones moving his pinky finger up and down,

which indicated to Muhammed that Jones was unable to breathe

(R3.120, 142-43).

24 Respondent’s witness William Hamilton, a forensic

pathologist who also performed an autopsy on Davis, believed

the electric current caused the nose bleed (R3.1076, 1118).

1-1). Sperry could not say to what extent the mouth

strap might have caused pain or discomfort (R3.995).

Donald Price, the neurophysiologist and psychologist

mentioned earlier, testified that, in his opinion, Davis did

experience pain before the application of the electric cur-

rent. In Price’s field, scientists have developed a system

of measuring the severity of pain by looking at facial

expression and have determined that facial expressions of

pain are distinct from facial expressions of other emotions

(R3.454, 464).26 Price testified that photographs of Davis

show facial expressions which are “distinct signs of pain”

(R3.456-57; Pet. Ex. 1-I, 1-F, 1-H, 1-G, 1-E), in that Davis’

eyelids and the muscles around the eyelids are tightened,

the cheek area below his eyelids is elevated, the muscles

at the top of his nose between the eyes are wrinkled, his

jaw has dropped, and it is likely his mouth is open

(R3.458). Price concluded that Davis “almost certainly

experienced intense or severe pain” (R3.466), resulting

either from the straps or the effects of electricity

(R3.424).27

25 The court pointed out to Sperry that photographs show

the mouth strap is “pushing up under the nose to the point that

the nose is crimped up in there, plus the chin strap is in place. It

shows the blood bleeding straight down on top of the strap

under his nose” (R3.1004). Sperry testified that the position of

the strap and the fact that the blood came down over the strap

had no significance “[a]s far as the bleeding being caused by the

placement of that strap” but that the bleeding was

“spontaneous” (R3.1004-06).

26 Particular facial motions indicating pain are: a tightening

of the eyes, an elevation of the cheek area, a wrinkling of the

muscles at the top of the nose between the two eyes, a

downward turn of the mouth, and a dropping of the jaw or

mouth opening (R3.454-55).

27 The State presented no rebuttal to Price’s testimony on

the facial expressions of pain. As noted above, the findings of

———————

SUMMARY OF THE ARGUMENT

This Court has held repeatedly that the Eighth

Amendment’s prohibition of Cruel and Unusual Punish-

ments must be interpreted in the light of contemporary

knowledge, considering currently available alternatives,

and respecting society’s evolving standards of decency. It

has also held that the Eighth Amendment requires that a

state’s procedures for inflicting the death penalty must be

reasonably regulated to avoid unnecessary and unaccept-

able degrees of risk that the penalty will be applied in

disregard of basic human dignity.

The constitutional analysis conducted by a majority

of the state supreme court in upholding Florida’s electro-

cution procedures deviates from these Eighth Amend-

ment principles in several crucial regards. The Florida

Supreme Court majority did not consider whether the

procedure, on the evidence developed in this record,

creates a continuing, uncontrollable risk of physical pain

which is intolerable to contemporary standards of

decency. Plainly it does, in a time when the alternative of

lethal injection has become available and widely used -

and when, indeed, all but four of the twenty-six state

jurisdictions that at one time used electrocution as their

only mode of execution have abandoned that practice.

The Florida Supreme Court majority also put wholly out

of account the psychological torment, agonizing uncer-

tainty, and barbaric disfigurement of its electrocution

procedure, all of which profoundly offend the core values

of the Eighth Amendment.

’ the trial judge were that Mr. Davis did not die of asphyxiation,

and that he died instantaneously once the current was applied.

ARGUMENT

A. INTRODUCTION: THE GOVERNING waicaisiuan

AMENDMENT STANDARDS

“At the beginning of the nineteenth century ..., the

great spectacle of physical punishment disappeared; the

tortured body was avoided; the theatrical representation

of pain was excluded from punishment.”28 This case

involves a reversion to the penal style of the preceding

era, the epoque of “torture as a public spectacle.”29 It

therefore implicates the original concerns of the Cruel

and Unusual Punishments Clause.»

But the Eighth Amendment “proscribes more than

physically barbarous punishments.” Estelle v. Gamble, 429

U.S. 97, 102 (1976). It prohibits punishments that “involve

the unnecessary and wanton infliction of pain,” Gregg v.

Georgia, 428 U.S. 153, 173 (1976). “Among ‘unnecessary

and wanton’ inflictions of pain are those that are ‘totally

without penological justification.’” Rhodes v. Chapman,

452 U.S. 337, 346 (1981) (quoting Gregg, 428 U.S. at 183;

citing Gamble, 429 U.S. at 103).

The pain inflicted need not be physical. The Eighth

Amendment reaches “exercises of cruelty by laws other

than those which inflict[ ] bodily pain or mutilation.”

Weems v. United States, 217 U.S. 349, 373 (1910). It forbids

28 MICHEL Foucautt, Discipline AND PunisH 14 (Alan Sheridan

trans., Vintage Books 2d ed. 1995).

29 Id. at 7. See also R. J. EvANs, Rrruats oF RETRIBUTION: CAPITAL

PuNISHMENT IN GERMANY 1600-1987 (Oxford University Press

1996).

30 See, e.g., A. Granucci, “Nor Cruel and Unusual

Punishments Inflicted”: The Original Meaning, 57 Cat. L. Rev. 839

(1969); R. Durham, THe Crue, anp UNnusuat PuNnisHMENT AND

Excessive Fines Ciauses, 26 Am. Crm. L. Rev. 1617 (1989).

laws subjecting a person to “circumstance[s] of degrada-

tion,” id. at 366,51 or to “circumstances of terror, pain, or

disgrace” “superadded” to a sentence of death. Id. at 370

(emphasis supplied).32 See also Trop v. Dulles, 356 U.S. 86,

101-102 (1958) (condemning punitive denationalization:

“There may be involved no physical mistreatment, no

primitive torture,” but the destruction of political exis-

tence entailing a “fate of ever-increasing fear and dis-

tress” offends the Amendment).*%

“[T]his Court has ‘not confined the prohibition

embodied in the Eighth Amendment to “barbarous”

methods that were generally outlawed in the 18th cen-

tury,’ but instead has interpreted the Amendment ‘in a

flexible and dynamic manner.’ ” Stanford v. Kentucky, 492

31 See also Hudson v. McMillian, 503 U.S. 1, 26 (1992) (“That

is not to say that the injury [violating the Eighth Amendment]

must be, or always will be, physical.”) (Thomas, J., dissenting).

32 Cf. In re Medley, 134 U.S. 160, 171, 172 (1890) (seclusion in

solitary confinement and prohibition on telling condemned

prisoner date and time of his execution are increased

punishments, in violation of ex post facto clause, because solitary

induces “further terror,” while “secrecy [about the time of

execution] must be accompanied by an immense mental anxiety

amounting to a great increase of the offender’s punishment.”).

33 See Hudson v. McMillian, 503 U.S. 1, 16-17 (1992)

(Blackmun, J., concurring): “As the Court makes clear, the

Eighth Amendment prohibits the unnecessary and wanton

infliction of ‘pain,’ rather than ‘injury.’ . . . ‘Pain’ in its ordinary

meaning surely includes a notion of psychological harm... . I

have no doubt that to read a ‘physical pain’ or ‘physical injury’

requirement into the Eighth Amendment would be no less

pernicious and without foundation than the ‘significant injury’

requirement we reject today.”

U.S. 361, 369 (1989) (quoting Gregg, 428 U.S. at 171).*4

Eighth Amendment adjudication is “dynamic” in three

important senses. First, the punishment must be judged

“in light of contemporary human knowledge.” Robinson v.

California, 370 U.S. 660, 666 (1962).55 Second, the cruelty

and gratuity of a mode of punishment must be judged in

comparison to currently available alternatives. Furman v.

Georgia, 408 U.S. 238, 430 (1972) (Powell, J., dissenting)

(“[N]o court would approve any method of implementa-

tion of the death sentence found to involve unnecessary

cruelty in light of presently available alternatives.”) Third,

assessments of what is “cruel” and “unusual” must nec-

essarily refer to the “evolving standards of decency that

mark the progress of a maturing society.” Trop, 356 U.S. at

101. Thus, punishments “that transgress today’s ‘ “broad

and idealistic concepts of dignity, civilized standards,

humanity, and decency”’” violate the Amendment.

Hutto v. Finney, 437 U.S. 678, 685 (1978) (quoting Gamble,

429 U.S. at 102, quoting Jackson v. Bishop, 404 F.2d 571, 579

(8th Cir. 1968)). This is why the Court has invalidated

punishments repudiated by contemporary perceptions of

34 “But surely they [the framers of the Eighth Amendment]

intended more than to register a fear of the forms of abuse that

went out of practice with the Stuarts. Surely, their jealousy of

power had a saner justification than that. They were men of

action, practical and sagacious, not beset with vain imagining,

and it must have come to them that there could be exercises of

cruelty by laws other than those which inflicted bodily pain or

mutilation.” Weems, 217 U.S. at 372.

35 As Justice Souter stated in his opinion respecting the

denial of certiorari in Poyner v. Murray, 508 U.S. 931 (1993), “the

holding [in Kemmler] does not constitute a dispositive response

to litigation of the issue [of the constitutionality of

electrocution] in light of modern knowledge about the methods

of execution.”

appropriate proportion, as reflected by objective indicia*

such as the consensus of considered American legislative

judgment. See, e.g., Thompson v. Oklahoma, 487 U.S. 815

(1988); Coker v. Georgia, 433 U.S. 584 (1977); Enmund v.

Florida, 458 U.S. 782 (1982). “But . . . public perceptions of

standards of decency with respect to criminal sanctions

are not conclusive. A penalty must also accord with ‘the

dignity of man,’ which is the ‘basic concept underlying

the Eighth Amendment.’ ” Gregg, 428 U.S. at 173 (citing

Trop, 356 U.S. at 100).

Since Furman v. Georgia, 408 U.S. 238 (1972), this

Court has repeatedly applied these principles to state-

created systems for administering the punishment of

death. It has found the death penalty per se constitu-

tionally unobjectionable, but has insisted that the pro-

cedures for inflicting it be reasonably regulated with an

eye to controlling against unacceptable degrees of risk

that the penalty will be applied in disregard of basic

human dignity. See, e.g., Lockett v. Ohio, 438 U.S. 586, 605

(1978) (plurality opinion) (speaking of the “risk that the

death penalty will be imposed in spite of factors that may

call for a less severe penalty” and holding that “such risk

is unacceptable and incompatible with the commands of

the Eighth and Fourteenth Amendments”); Beck v. Ala-

bama, 447 U.S. 625, 637 (1980) (speaking of the “risk of an

unwarranted conviction” and holding that “[s]uch a risk

cannot be tolerated in a case in which the defendant’s life

is at stake”). In capital cases as in others, the teaching of

the Court’s cases is that Eighth Amendment adjudication

cannot proceed primarily by correcting ugly but isolated

36 See Stanford, 492 U.S. at 370; Ford v. Wainwright, 477 U.S.

399, 408-410 (1986); Penry v. Lynaugh, 492 U.S. 302, 331 (1989).

instances of deviation from generally acceptable stan-

dards of procedure; rather, it must be concerned with

assuring that general procedures themselves are ade-

quately designed and maintained to avoid undue risks of

inflicting inhumane punishments. Compare Maynard v.

Cartwright, 486 U.S. 356 (1988), with Lewis v. Jeffers, 497

U.S. 764 (1990).97

B. THE FLORIDA SUPREME COURT HAS DISRE-

GARDED PROPER EIGHTH AMENDMENT

ANALYSIS AND AN INTOLERABLE RISK OF

PHYSICAL PAIN

The per curiam majority opinion upholding Florida’s

electrocution procedure in Provenzano nowhere addresses

the constitutionally critical question whether that pro-

cedure involves an unacceptable, needless risk of physi-

cally painful death. It recites that “[t]he record in this

case reveals abundant evidence that execution by electro-

cution renders an inmate instantaneously unconscious,

thereby making it impossible to feel pain.” Provenzano v.

Moore, slip op. at 3-4. But it does not mention that the

record also contains abundant evidence to the contrary —

evidence that an inmate can suffer intense pain before

unconsciousness occurs (see pages 15-24 supra) — and it

does not explain how or why or by what measure the

former evidence is to be regarded as more satisfying than

the latter. It refers only to Florida’s customary “compe-

tent, substantial evidence” standard for appellate review

37 Accord: Helling v. McKinney, 509 U.S. 25, 33 (1993) (Eighth

Amendment analysis “requires a court to assess whether society

considers the risk that the prisoner complains of to be so grave

that it violates contemporary standards of decency”); Farmer v.

Brennan, 511 U.S. 825, 846 (1994) (the focus of the inquiry is

whether there exists an “objectively intolerable risk of harm”).

of findings of historical fact, slip op. 4, a reference that is

wide of the constitutional mark for two related reasons.

First, the pertinent Eighth Amendment question is not

one of historical fact (what happened on a specific occa-

sion) or even of simple actuarial probability (“a scientific

and statistical inquiry into the . . . likelihood that...

injury . . . will actually be caused”); it is whether “society

considers the risk . . . [of the injury] so grave that it

violates contemporary standards of decency,” Helling v.

McKinney, 509 U.S. 25, 36 (1993). Second, the trial court in

Provenzano made no factual findings except about what

happened on the single occasion of Allen Davis’ execu-

tion, and it made those findings “by the greater weight of

the evidence.” (R3.2297).38 To say that there was compe-

tent, substantial evidence to support a finding that (more

38 The trial court made six factual findings relating to the

Davis execution: that, on that occasion, (1) the electric chair

functioned as it was supposed to function; (2) DOC protocol

was followed; (3) Davis’s “death . . . did not result from

asphyxiation caused by the mouth strap”; (4) Davis “did not

suffer any conscious pain” but “suffered instantaneous and

painless death once the current was applied to him”; (5) his nose

bleed was of unknown origin but started before the electric

current; and (6) the mouth and chin straps “may have caused

Davis to suffer some discomfort” but not “unnecessary and

wanton pain” (and “the mouth strap was not a part of the

electrical operation of the electric chair.”). It made a seventh

finding that a different sort of mouth strap might be preferable;

and an eighth finding as follows: “Execution inherently

involves fear, and it may involve some degree of pain. That pain

may include pain associated with affixing straps around the

head and body to secure the head and body [to] the electric

chair. However, any pain associated therewith is necessary to

ensure that the integrity of the execution process is

maintained.” State v. Provenzano, slip op. at 32, quoted in

Provenzano v. Moore, slip op. at 2-3.

probably than not) the application of electric current to

Allen Davis on July 8, 1999 killed him instantly and

without conscious physical pain falls far short of address-

ing the question whether electrocution - which passes

through different human bodies differently on different

occasions (see pages 18-20 and n. 12 supra) — poses a risk

of physical pain that “violates contemporary standards of

decency.”39

39 In the earlier Jones hearing, the trial court made findings

of fact - also based on “the greater weight of the evidence,”

(R2.1947) - that centered on the execution of Pedro Medina and

the DOC’s then-new electrocution protocol. It found that,

despite the “malfunction[ ]” which occurred during Mr.

Medina’s execution, he “suffered no conscious pain”; that the

same “can be said” for all future inmates who would be

executed in Florida; that “Florida’s electric chair — its apparatus,

equipment, and electric circuitry — is in excellent condition”;

that the “death chamber staff is qualified and competent to

carry out executions”; that the new protocol for future

executions would insure that “all executions in the electric chair

will be carried out with the reasonable certainty of no future

malfunctions”; and that “[a]ll inmates who will hereafter be

executed in Florida’s electric chair will suffer no conscious

pain”. See Jones v. State, 701 So. 2d at 77. The trial court’s

understanding of the scientific evidence presented in Jones was,

however, so flawed on its face as to be patently unreliable. The

court’s holding that no conscious pain could be experienced

relies in part on this explanation of how pain is experienced:

“It is uncontroverted that the brain does not create

pain impulses, but rather, pain impulses are created

at the peripheral nerves. The pain message is

transmitted through the nerves to the spinal cord and

then to the brain, which then perceives the pain

message.”

(R2.1956). Nothing in the record supports this extraordinary

notion, and the testimony of expert witnesses for both sides

confirms the well-understood phenomenon that sensations of

It is not only this Court’s precedents, of course, that

make the crucial Eighth Amendment question whether

“that risk is unacceptable,” Lockett, 438 U.S. at 605. Since

the effects of an electrocution upon human sensation

cannot be measured during the event* or reported by the

subjects afterwards, risk and its acceptability are the only

questions that can meaningfully be asked about the use of

such a procedure, however frequently repeated. The fail-

ure of the Florida Supreme Court to consider that ques-

tion requires, at the least, a reversal and remand for

reconsideration under the correct constitutional stan-

dard.*! See, e.g., Stansbury v. California, 511 U.S. 318

(1994); Sochor v. Florida, 504 U.S. 527 (1992). But, on the

present record, we believe that this Court should resolve

the question independently, see, e.g., Haynes v. Washing-

ton, 373 U.S. 503 (1963), because there is only one answer

to it that is consistent with contemporary standards of

decency.

There was a time when the unmeasurable hazards of

electrocution were thought to be bearable - and, indeed,

pain can be produced by stimulating the regions of the brain

which function to interpret pain. See pages 20-24 & n. 17 supra

and the testimony of State’s experts Wilder (R2.1019, 1034, 1046;

R3.1167-1168) and Sperry (R2.951-953; R3.889-890, 892-893).

40 See pages 15-16, supra.

41 In his concurring opinion in Provenzano, slip op. at 10,

Chief Justice Harding (joined by Justice Lewis) noted that “each

time an execution is carried out, the courts wait in dread

anticipation of some ‘unforeseeable accident’ ” that will result

in more litigation about the electric chair. Justice Quince, in her

concurrence (joined by Justice Wells), observed that “human

error .. . seems to plague this form of execution.” Id. at 23. Yet

none of the four justices considered these elements of risk in

their analyses of whether electrocution was unconstitutionally

cruel punishment.

a humane experiment - because of an apparent absence

of alternatives. That was the view this Court took in In re

Kemmler, 136 U.S. 436 (1890),42 although Kemmler’s discus-

sion of the subject was necessarily dictum because the

Eighth Amendment was not then applicable to the States.

Such a view was still tenable when the Court decided

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463

(1947), although that, too, was before the Eighth Amend-

ment’s incorporation into the Fourteenth.*® But the

advent of lethal injection - a mode of execution now used

in the overwhelming majority of American jurisdictions

that at one time used only electrocution - has made it

unnecessary to tolerate the risks involved in discharging

high-voltage electric current through the unpredictable

pathways of the human body.* To continue to accept

those risks, a gamble now deprived of any “ ‘legitimate

penological objectiv[e],’ ” Farmer v. Brennan, 511 U.S. 825,

—

42 The Court in Kemmler quoted from a New York state

legislative commission report describing electrocution as “the

most humane and practical method known to modern science of

carrying into effect the sentence of death in capital cases.” Id. at

444.

43 Justice Frankfurter’s decisive vote in Francis was

explicitly based upon the theory, later overthrown by Robinson

v. California, 370 U.S. 660 (1962), that Eighth Amendment

standards did not bind the States. See 329 U.S. at 470.

44 See pages 17-27, supra. The evidence in this record is

consistent with the professional literature in suggesting that — to

an extent undreamed of in the Kemmler era — the human body

may react to electrical current in ways that are designed to

preserve life and consciousness, if only briefly, and that during

that life-preserving biological reaction significant pain and

suffering may be experienced. See the literature collected in D.

Denno, Is Electrocution an Unconstitutionai Method of Execution?

The Engineering of Death over the Century, 35 William and Mary L.

Rev. 551, 633-642 (1994).

833 (1994), is unconscionable. And to compound the risks,

as Florida does, by strapping its condemned inmates to

the chair in a fashion serving simply to add asphyxiation

to the hazard, is a travesty of decency equalled solely, in

this century, by the grotesque execution machine in

Kafka’s In the Penal Colony.

C. THE FLORIDA SUPREME COURT HAS DISRE-

GARDED ITS OBLIGATION TO CONSIDER THE

PSYCHOLOGICAL TORMENT, INDIGNITY AND

BARBARIC DISFIGUREMENT INFLICTED BY ITS

ELECTROCUTION PROCEDURE

By its orders limiting the scope of the evidentiary

hearings conducted in the Jones and Provenzano cases and

by the majority’s single-minded focus upon physical pain

in its ultimate Provenzano decision, the Florida Supreme

Court excluded from its Eighth Amendment analysis

three additional considerations that render Florida’s elec-

trocution procedure abhorrent to the Constitution:

1. Florida’s procedure involves exquisite mental

cruelty

It is difficult to imagine an execution procedure more

dramatically designed than Florida’s to deny condemned

inmates death with dignity. The stark terror and incom-

prehensibility of the gruesome spectacles that have

repeatedly occurred in Florida’s electrocution chamber -

and that have not ceased despite the sanguine finding of

the trial court in Jones that “all executions in the electric

chair will be carried out with the reasonable certainty of

no future malfunctions”45 — make it impossible for the

condemned to invest his or her death with any shred of

45 See note 39 supra.

apperceptible meaning. That the most horrifying of the

spectacles occur (or are reported) only irregularly does

not make their apprehension easier to bear. See pages

14-15 supra; 49-51 infra.

Psychological science seconds the common sense

human intuition that the anticipation of pain can exacer-

bate the suffering of pain.4° Psychological understanding

of the mechanisms people use to cope with the anticipa-

tion of death from illness*” is instructive with respect to

the experience of persons waiting to be executed by the

state. It teaches us that condemned inmates like Anthony

Bryan will attempt to prepare psychologically for their

executions. They will attempt to make sense of their

impending deaths; they will spend time contemplating

what is about to happen, harnessing whatever psycho-

logical and emotional resources they have available to

withstand the fate they know awaits them. Like others

for whom death is imminent,48 condemned inmates

46 A. Ploughaus, I. Tracey, S. Clare, et al., Dissociating Pain

from its Anticipation in the Human Brain, 284 Science (No. 5422)

1979 (1999). As one researcher has noted: “Even the suffering

associated with losses from past events [emphasizes its

anticipatory nature] . . . because the suffering person is forced to

anticipate the effects of the losses on his or her present and

future.” W. Fordyce, Pain and Suffering: A Reappraisal, 43 Amer.

PsyCHOLOGIST 276, 278 (1988).

47 See, e.g., E. Kubler-Ross, ON DeatH ano Dyinc (Macmillan

1969); E. Kubler-Ross, The Languages of Dying Patients, 10

Humanitas 5 (1974).

48 See, e.g., J. Arndt, J. Greenberg, S. Solomon, T.

Pyszczynski & L. Simon, Suppression, Accessibility of Death-

Related Thoughts, and Cultural Worldview Defense: Exploring the

Psychodynamics of Terror Management, 73 JOURNAL OF PERSONALITY

AND SociAt PsycuHo.ocy 5 (1997); T. Pyszczynski, J. Greenberg &

S. Solomon, A Dual Process Model of Defense Against Conscious

experience anticipatory fear of dying, and this is an emo-

tion that they struggle to overcome and manage.*?

But Anthony Bryan and others condemned to death

in Florida face more than simple pain and the loss of their

lives. They face extinction by a process that is unpredict-

able and potentially painful, in which their bodies and

particularly their faces and genitalia may be disfigured,

and their deaths rendered a humiliating public spectacle.

These aspects of the process by which they will die make

their ability to cope with death overwhelmingly difficult

— beyond the ordinary difficulty of facing death.

When one sits in a cell for years with little to occupy

one’s thoughts except to ready oneself for death, the

manner of one’s dying comes to have a special place in

one’s imagination. The essence of the Florida execution

procedure, made notorious by repeated terrifying exhibi-

tions, is to deprive the condemned man or woman of the

capacity to hope that he or she can face what is to come

with any solace of acceptance or redeeming courage.

Like raw physical pain, whose greatest horror is that it is

mentally ungraspable, being put to death as Florida

inflicts death is a prospect that cannot be made intellig-

ible by the person who will suffer it. Demeaning and

and Unconscious Death-Related Thoughts: An Extension of Terror

Management Theory, 106 PsycHOLocIcAL Review 835 (1999).

49 See C. Haney, Psychological Secrecy and the Death Penalty:

Observations on “The Mere Extinguishment of Life,” 16 Srupies IN

Law, Potirics AND Society 3 (1996).

50 As Ernest Becker observed in his classic work: “We

admire the courage to face death; we give such valor our highest

and most constant adoration; it moves us deeply in our hearts

because we have doubts about how brave we ourselves would

be.” E. Becker, THe Deniat of DeatH 11-12 (Free Press paperback

ed. 1997)

repulsive, gratuitously hideous, it defies assimilation in

any of the ways through which the human mind and will

can make destruction bearable - by explaining it, or

alleviating it, or dignifying it, or otherwise putting it into

a coherent frame of reference that allows something of

worth and value and sense to coexist with death and to

survive despite it. The culminating insult is that all Flor-

ida inmates are required to be sane enough to contem-

plate what sanity can only gibber at.>!

2. Florida’s procedure adds the horror of uncer-

tainty

One of the early purported advantages of using elec-

trocution for state-sanctioned executions was its alleged

reliability.5? Reliability or predictability is an important

dimension of humane treatment. Knowledge about the

nature of the process by which death will come has been

found to assist what therapists have described as the.

51 See Ford v. Wainwright, 477 U.S. 399, 409 (1986): “[T]he

natural abhorrence civilized societies feel at killing one who has

no capacity to come to grips with his own conscience or deity is

still vivid today.”

52 The advantages of electrocution were said to be the

reduction of suffering of the condemned, elimination of the

unpredictability that sometimes accompanied the less effective

and more inefficient method of execution then commonly in use

(hanging), and — because of the promise of instantaneous and

apparently painless death - a significant moderation in the

spectacle of the execution itself. No less a scientific figure than

Thomas Edison was called upon by New York to provide

support for this untried method of execution, and he

confidently opined that it “would kill instantly, painlessly, and

in every case.” Quoted in L. Hoffman, The Madness of the Method:

The Use of Electrocution and the Death Penalty, 70 Texas L. Rev.

1039, 1043 (1992).

“death anxiety” or “terror management” that surrounds

death by decreasing the profound fear that people associ-

ate with their impending demise.54 Conversely, unpredic-

tability and unreliability are hallmarks of cruel

punishment. Introducing unpredictability into the pro-

cess of administering pain is a favored practice of tor-

turers who, by doing so, seek to intensify the fear their

actions generate and the suffering it inflicts.55 Thus, the

unpredictability of events clearly adds to their painful

quality.°¢ A century’s worth of experience with the elec-

tric chair, and not just the events of the last decade in

53 R.A. Neimeyer & D. Van Brunt, “Death Anxiety,” in H.

Wass, R. Neimeyer et al., eds., Dyiva: Facine THe Facts 49-88 (3d

ed., Taylor and Francis 1995); R. Neimeyer, ed., DeatH ANnxiETY

HanbBook: RESEARCH, INSTRUMENTATION, AND APPLICATION (Taylor

and Francis 1994).

54 C. Abengozar, B. Bueno & J. Vega, Intervention on

Attitudes toward Death along the Life Span, 25 EpucaTIONAL

GERONTOLOGY 435 (1999).

55 See, e.g., M. Basoglu & S. Mineka, “The Role of

Uncontrollable and Unpredictable Stress in Post-traumatic

Stress Responses in Torture Survivors,” in Torture anpD ITs

CONSEQUENCES: CURRENT TREATMENT APPROACHES 182-225

(Cambridge University Press 1992). And see A. KoestTLer,

Darkness aT Noon (Macmillan 1941).

6 E.g., T. Pyszczynski, J. Greenberg, & S. Solomon, “A

Terror Management Perspective on the Psychology of Control:

Controlling the Uncontrollable,” in M. Kofta, G. Weary, et al.,

eds., Persona ContRoL IN AcTION: CoGNrTIVE AND MoTIVATIONAL

Mecuanisms 85-108 (Plenum Press 1998); V. Florian & M.

Mikulincer, Fear of Death and the Judgment of Social Transgressions:

A Multidimensional Test of Terror Management Theory, 73 JouRNAL

OF PERSONALITY AND SocIAL PsycHo.oGcy 369 (1997). Terror

management is facilitated by the belief that future death-related

events will be orderly and predictable. J. Lieberman, Terror

Management, Illusory Correlation, and Perceptious of Minority

Groups, 21 Basic AND Appts Sociat PsycHoLocy 13 (1999).

Florida, suggests that it is fraught with uncertainty. As

one historian recently concluded:

“Many [executions by electrocution], like Kem-

mler’s, were botched when the electrodes were

not tight enough, when a sponge was allowed to

dry out or even when the wires were installed

incorrectly. In many of these cases the victim

dies a slow and agonizing death rather than the

quick and efficient ‘electric euthanasia’ the

inventors of the electric chair had hoped to pro-

vide.”°7

As this Court recognized more than a hundred years

ago, uncertainty about the time of one’s execution “must

be accompanied by an immense mental anxiety amount-

ing to a great increase in punishment.” In re Medley, 134

U.S. 160, 171, 172 (1890). Uncertainty as to whether one

will die like Jesse Tafero or Pedro Medina or Allen Lee

Davis is no less agonizing. ;

3. The prospect of disfigurement enhances the

atrocity

Another supposed advantage of electrocution when

it was introduced as a means of execution a century ago

was that it seemed to offer a scientific solution to the

problem of disfiguring spectacles that plagued beheading

and hanging. A New York Herald editorial published in

1884 calling for an end to the gallows reflected this view:

“Science stands ready to provide Justice with a number of

perfectly expeditious, neat and non-disfiguring homicidal

methods. It is quite easy to devise a plan by which the

death of a murderer would be instantaneous, and into

which neither the horrible nor the grotesque would

57 C. Brandon, THe Evecrric CHair: AN UNNATURAL AMERICAN

History 205 (McFarland Publishers 1999).

enter.”°§ But that promise has not been fulfilled.5?

According to the Florida Department of Corrections,

“most executions last longer than seven minutes.” Bue-

noano v. State, 565 So. 2d 309, 311 (Fla. 1990). During those

more than seven minutes of electrical current waxing and

waning, of clenched muscles, chest movements and

sometimes moans, smoke, flames or blood, the prisoner’s

death is rendered a grisly spectacle.

Disfigurement is almost universally recognized as a

form of profound degradation and humiliation.®

58 New York Heratp, August 10, 1884, quoted in Brandon,

note 58 supra, at 39.

59 There is research suggesting that electrocution is

perceived as the second most painful form of judicial execution,

next only to stoning to death. M. Patarelli & J. Bishop,

Perceptions of Estimated Pain Experienced During Execution: Effects

of Gender and Belief in Capital Punishment, 38 OmeEGa: JOURNAL OF

DEATH AND Dyinc 103 (1998-99).

6° Across the country, news reports of recently botched

executions in Florida have included accounts that witnesses

were “sickened” by what they saw. See, e.g., Grisly Execution in

Electric Chair Sickens Witnesses, Flames Shoot from Convict’s Head

as Floride Murderer is Put to Death, San Jose Mercury News 1A

(March 26, 1997). Newspapers as far away as Ireland carried

headlines like “Electric chair sparks another grisly scene” when

they reported on the bloody execution of Allen Davis. David

Sapsted, Electric Chair Sparks Another Grisly Scene, Irish

Independent 28 (July 9, 1999).

61 “When William Hogarth engraved, in 1751, the grim

series entitled The Four Stages of Cruelty, he mapped the moral

sequence that begins with boys tormenting animals and leads to

rape and murder. In the final macabre image, The Reward of

Cruelty, the perpetrator has finished up a ghastly shrieking

corpse on a surgical dissection table, his innards rummaged by

doctors and spilling in profusion on to the floor and into pails,

his bones in the anatomist’s cauldron, while on the operating

theatre walls are suspended the skeletons of criminals who have

Disfigurement of the dead is condemned by virtually

every culture.®? It was a common-law crime and is now

commonly punished by statute. In times of political

upheaval, opposing factions sometimes use disfigure-

ment and mutilation of the dead to terrorize and humili-

ate their opponents. Conversely, most cultures have

elaborate burial rituals that scrupulously provide for the

careful preservation of the physical integrity of the dead.

Preservation of the physical integrity of the dead is part

of a deep-seated human need.™ The threat of a disfigur-

ing death instills intense distress.

Physical mutilation is cited among the atrocities for-

bidden in this Court’s early cases. See, e.g., Weems v.

United States, 217 U.S. at 372 (“there could be exercises of

cruelty by laws other than those which inflicted bodily

pain or mutilation”); Wilkerson v. Utah, 99 U.S. 130, 135

(1879) (citing drawing, beheading, quartering and public

dissection as punishments forbidden by the Eighth

Amendment). Indeed, the State conceded in the

Provenzano case that death by guillotine would violate the

Eighth Amendment, even though probably instantaneous

and painless, because of its disfiguring of the executed

preceded him under the scalpel.” Marina Warner, No Go THE

BOGEYMAN: SCARING, LuLLING AND Maxinc Mock 133-134 (Farrar,

Strauss and Giroux 1998).

62 See generally E. BENDANN, DeatH Customs 45-56, 83-89

(Knopf 1930) (comparing several cultures’ attitudes and

practices regarding death).

63 See John S. Herbrand, Validity, Construction, and

Application of Statutes Making It A Criminal Offense to Mistreat or

Wrongfully Dispose of Dead Body, 81 A.L.R. 3d 1071 (1977). |

64 This is why the disinterment and dissection of corpses

has been a constant subject of horror and a staple of classic

horror tales like Robert Louis Stevenson’s The Body Snatcher.

person. Provenzano v. Moore, slip op. at 79 (Pariente, J.,

dissenting).

Disfigurement and degradation are abhorred, more-

over, because they represent ancient forms of power in

which one’s body was not one’s own, but belonged to the

“divine” King to dispose of at his whim.® It was in part

in reaction to this limitless power of the Sovereign to

trespass on an individual's right to his or her own bodily

integrity that prohibitions against cruel and unusual pun-

ishment were erected. These prohibitions stand to limit

not only government's power to inflict pain, but govern-

ment’s power to deform the very physical being of its

citizens. That is why, among the “rules of government

which . . . have [been] found to be essential to the

preservation of those great principles of liberty and

law . . . was that which prohibited the infliction of cruel

and unusual punishment.” Weems, 217 U.S. at 367-368.

' 4. Florida’s method of electrocution is an atavistic

barbarism

Kemmler gave the States 100 years to experiment with

methods of conducting executions by electrocution.

Untried when Kemmler was decided in 1890, electrocution

subsequently came to be the only mode of execution used

in more than half the States of the United States. That

number now has dwindled from 26 to 4, not by happen-

stance but through humanity. Not a single jurisdiction in

the world outside of the United States practices judicial

electrocution. Yet in the State of Florida it continues to be

practiced under circumstances that increase its visible

65 See M. Foucautt, op. cit. supra note 28.

brutality. So practiced, it is a gratuitous affront to univer-

sal standards of contemporary decency and violates the

Eighth Amendment.

CONCLUSION

The judgment of the Florida Supreme Court should

be reversed.

Respectfully submitted,

Grecory C. Smitn, Esoa.*

ANDREW THomas, Esa.

CapiTAL COLLATERAL COUNSEL

NorRTHERN REGION

Post Office Drawer 5498

Tallahassee, FL 32314-5498

(850) 488-7200

Martin McC iain, Esa.

Gait ANDERSON, Esa.

Special Assistant CCRC-N

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