Amicus Curiae Brief — Bryan v. Moore

5) Supreme Court, U.S.

- 2. FILED

)

Pec aff No. 99-6723 1 es 2 0 1999

OFFICE CF THE CLERK

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 Supreme Court Of Florida

*

BRIEF OF THE LOUIS STEIN CENTER FOR LAW

AND ETHICS, FORDHAM UNIVERSITY SCHOOL

OF LAW, AND PROFESSORS EDWARD A.

BRUNNER, M.D., Ph.D., ROBERT A. BURT, J.D.,

MARGARET A. FARLEY, Ph.D., AND SHERWIN B.

NULAND, M.D., AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

¢

Bruce A. GREEN*

Louis Stein Professor of Law

Director, Louis Stein Center

for Law and Ethics

FORDHAM UNIvERSITY SCHOOL OF LAw

140 West 62nd Street

New York, New York 10023

(212) 636-6851

*Counsel of Record

ae

en a ee

QUESTION PRESENTED

r-

Whether execution by electrocution generally, and in

Florida’s electric chair specifically, violate the Eighth

Amendment’s Cruel and Unusual Punishments Clause.

(I)

TABLE OF CONTENTS

Interest of Amicus Curiae

Statement

Summary of Argument......................... 4

ARGUMENT:

I. KEMMLER WARRANTS

RECONSIDERATION UNDER

MODERN EIGHTH AMENDMENT .

en 5

Il. MODERN EIGHTH AMENDMENT

ANALYSIS DEMONSTRATES THAT

EXECUTION BY ELECTROCUTION

CONSTITUTES CRUEL AND

UNUSUAL PUNISHMENT........... 8

A. Electrocution Constitutes “Unnecessary

and Wanton Infliction of Pain”. _.. . 9

B. Electrocution Constitutes “Physical

Violence” and Offends “Human

EN a ee = 9

C. Electrocution Constitutes the Risk of

“Unnecessary and Wanton Infliction of

DN ee aes aos |

D. Electrocution Violates “Evolving

Standards of Decency”

(II)

IV

Conclusion........ SOY ee irre Fer eee eh 17

Appendix

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L; Sener a A ae ae re Peers Sa

Table 6. . oe | ee a ae yee Ta

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TABLE OF AUTHORITIES

Cases

Enmund v. Florida, 458 U.S. 782 (1981).......... 14

Furman v. Georgia, 408 U.S. 238 (1972).......... 4,13

V

Gregg v. Georgia, 428 U.S. 153 (1976)........... 9,15

Jones v. State, 701 So.2d 76 (Fla. 1997)........... 4

In re Kemmler, 136 U.S. 436 (1890).............. 4,13

Malloy v. South Carolina, 237 U.S. 180 (1914)... .. 12

Penry v. Lynaugh, 492 U.S. 302 (1989)...... 2... 15

Poyner v. Murray, 508 U.S. 931 (1993)........... 7

Provenzano v. Moore, No. 95973, 1999 WL 756012

(Fee OR. OA, PO a es a es eG ee 3, 8, 16

Robinson v. California, 370 U.S. 660 hi; 8

Stanford v. Kentucky, 492 U.S. 361 (1989)... .. 15

Constitution

Ae VE... ee rae: Passim

Miscellaneous

Steve Bousquet, Floridians Favor Move from Electric

Chair to Injection, Poll Shows, Miami Herald.

TUOY. By BO oO ee ee 16

Craig Brandon, The Electric Chair: An Unnatural

American History 7-159(1999)......0.0 00... 7

Vi

Deborah W. Denno, Getting to Death: Are Executions

Constitutional? , 82 lowa L. Rev. 319 (1997)... ...

Deborah W. Denno, /s Electrocution An

Unconstitutional Method of Execution? The

Engineering of Death Over the Century,

35 Wm. & Mary L. Rev. 551 (1994)............

Carla McClain, Arizona Gas Chamber Stays,

Gannet News Serv., Apr. 7, 1992,

available in LEXIS, Nexis Library, Wires File... . .

Sherwin B. Nuland, M.D., Cruel and Unusual,

N.Y. Times, Nov. 9, 1999, at A25..............

Sherwin B. Nuland, MD., How We Die: Reflections

on Life’s Final Chapter (1993).................

Poll: Electric Chair Unpopular in Florida,

OMAHA WORLD-HERALD, Nov. 7, 1999, at 22a. ...

George Skelton, Death Penalty Still Strong in State,

L.A. TIMES, Apr. 29, 1992, at Al, Al8

16

BRIEF OF THE LOUIS STEIN CENTER FOR LAW AND

ETHICS, FORDHAM UNIVERSITY SCHOOL OF LAW,

AND PROFESSORS EDWARD A. BRUNNER, M.D., Ph.D.,

ROBERT A. BURT, J.D., MARGARET A. FARLEY, Ph.D.,

AND SHERWIN B. NULAND, M.D., AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE'

The Louis Stein Center for Law and Ethics is based at

Fordham University School of Law. The Stein Center reflects

the law school’s commitment to teaching, legal scholarship,

and professional service that promote the role of ethical

perspectives in legal practice, legal institutions, and the

development of the law itself. Toward this end, the Stein

Center sponsors programs, develops publications, and supports

scholarship on contemporary issues of law and ethics, and

encourages professional and public institutions to integrate

moral perspectives into their work. Over the past decade, the

Stein Center and affiliated Fordham Law faculty have

examined the ethical dimensions of the administration of

criminal justice, as well as questions of biomedical ethics.

Because Bryan v. Moore calls into question the extent of

courts’ adherence to “evolving standards of decency,” we

believe that the Stein Center’s consideration of the contours of

the Eighth Amendment’s proscription against cruel and unusual

punishment may provide the Court with a-unique perspective

on the issues relevant to this case.

' Both parties have consented to the appearance of amicus curiae

in this matter. No counsel for any party has authored this brief in whole or

in part, and no person or entity, other than amicus curiae, has made a

monetary contribution to the preparation or submission of this brief. Sup.

Ct. Rule 37.6.

2

Edward A. Brunner, M.D., Ph.D., is Emeritus

Chairman and James Eckenhoff Professor of Anesthesia at

Northwestern University School of Medicine. Professor

Brunner, a specialist in anesthesiology and pain therapy, has

authored many articles on anesthesiology and the amelioration

of pain. Professor Brunner also founded the Low Back and

Pain Clinic at the Rehabilitation Institute of Chicago and has

been active in the Anesthesia Department’s pain clinic at

Northwestern Memorial Hospital.

Robert A. Burt, J.D., is the Alexander M. Bickel

Professor of Law at Yale University. Professor Burt, an expert

in constitutional law and law and medicine, is the author of

Taking Care of Strangers: The Rule of Law in Doctor-Patient

Relations and The Constitution in Conflict, as well as numerous

articles addressing constitutional and medical ethics issues.

Since 1990, Professor Burt has chaired the Board of Trustees

of the Judge David L. Bazelon Center for Mental Health Law

and is currently the chair or member of many other

medical/legal organizations, including the Institute of Medicine

and the National Academy of Sciences.

Margaret A. Farley, Ph.D., is the Gilbert L. Stark

Professor of Christian Ethics at Yale University Divinity

School. Professor Farley, who has won a long list of awards

and published widely in books and articles on topics addressing

Christian, medical, and societal ethics, is currently president of

the Catholic Theological Society of America and past president

of the Society of Christian Ethics. Professor Farley, an

advisory board member of various ethics committees, also co-

chairs the Executive Committee of the Yale Interdisciplinary

Bioethics Forum, which coordinates all bioethics research and

teaching in the various schools at Yale University.

7

Sherwin B. Nuland, M.D., is Clinical Professor of

Surgery at Yale Schocl of Medicine. Professor Nuland is the

author of Doctors: The Biography of Medicine, Medicine: The

Art of Healing, How We Die (winner of the National Book

Award in 1994), and The Wisdom of the Body: How We Live.

Professor Nuland is chairman of the board of managers of the

Journal of the History of Medicine and Allied Sciences, literary

editor of Connecticut Medicine, a member of the editorial board

of Perspectives in Biology and Medicine, as well as a member

of the Yale Interdisciplinary Bioethics Forum.

STATEMENT

On July 8, 1999, Allen Lee Davis’ execution in

Florida’s electric chair gained national and international

attention. Post-execution photos and testimony indicated that

Davis suffered a nose bleed that poured down his shirt, that he

evidenced deep burns on his head, face, and body, and that he

was partially asphyxiated before and during the electrocution

from the five-inch-wide mouth strap that belted him to the

chair’s head-rest. There was also testimony that after guards

placed the mouth strap on him, Davis’ face became red and he

repeatedly mouthed and attempted to yell to the guards in an

effort to get their attention. Provenzano v. Moore, No. 95973,

1999 WL 756012 (Fla. Sept. 24, 1999) *20-22 (Shaw, J.,

dissenting). In the post-execution photos taken by Department

of Corrections personnel, “a sponge placed under [Davis’]

head-piece obscures the top portion of his head down to his

eyebrows; because of the width of the mouth-strap, only a small

portion of Davis’ face is visible above the mouth-strap and

below the sponge, and that portion is bright purple and

scrunched tightly upwards; his eyes are clenched shut and his

nose is pushed so severely upward that it is barely visible above

the mouth-strap.” Jd. at *22.

4

Thomas Provenzano, who was scheduled to be executed

in Florida State Prison the next day, filed a petition with the

Florida Supreme Court seeking a stay of execution and arguing

that the state’s electric chair was cruel and unusual punishment.

The Florida Supreme Court remanded Provenzano’s case to the

circuit court to conduct 2n evidentiary hearing on the

constitutionality of Florida’s electric chair. After the hearing,

the circuit court held that electrocution in Florida’s electric “is

not unconstitutional.” Provenzano, at *3. Ina 4-3 per curiam

opinion, a plurality of the Florida Supreme Court affirmed in

three pages the circuit court’s “finding that the electric chair is

not unconstitutional.” Jd. at *3. Moreover, the plurality

reiterated its previous holding in Jones v. State, 701 So.2d 76

(Fla. 1997), that had rejected the claim that Florida’s use of

electrocution violated “evolving standards of decency.”

Provenzano, at *3. The court implied there was no need to

readdress the “evolving standards of decency” issue.

SUMMARY OF ARGUMENT

The Eighth Amendment was enacted to proscribe

“torturous” and “barbarous” punishments, the penalties most

commonly associated with executions. See Furman v. Georgia,

408 U.S. 238 (1972)(per curiam). As yet, however, no court

has provided a modern and comprehensive Eighth Amendment

review of any execution method, including electrocution. In

general, courts dismiss constitutional challenges to

electrocution entirely by relying on the outdated precedent of

In re Kemmler, 136 U.S. 436 (1890). In Kemmler, the Court

held that the Eighth Amendment did not apply to the states and

therefore never addressed directly the constitutionality of

electrocution. Jd. at 443. Alternatively, as in Provenzano,

courts engage in a brief Eighth Amendment review that

focuses predominantly on the amount of pain inflicted while

ignoring other Eighth Amendment standards.

a comege

5

A modern and comprehensive Eighth Amendment

review of medical, historical, and societal evidence

demonstrates that electrocution does not comport with

“evolving standards of decency.” Electrocution inflicts

unnecessary pain and physical violence, and is at risk of

continuing to do so given a demonstrated pattern of botched

electrocutions. Moreover, legislative trends show a clear and

consistent break from electrocution. If the Cruel and Unusual

Punishments Clause is applied in the way that it was originally

intended, the Court would find electrocution unconstitutional.

I. KEMMLER WARRANTS RECONSIDERATION

UNDER MODERN EIGHTH AMENDMENT

STANDARDS

When the United States Constitution was being ratified,

the Framers included in the Bill of Rights a prohibition of cruel

and unusual punishments created expressly to proscribe the

kinds of “torturous” and “barbarous” penalties associated with

certain methods of execution. See Furman, 408 U.S. at 238.

To date, however, courts generally have provided only

superficial Eighth Amendment review of the constitutionality

of execution methods, particularly electrocution. Most

commonly, courts dismiss the electrocution challenge entirely

(often in one sentence) by relying on the century-old precedent

of In re Kemmler, 136 U.S. 436 (1890). See Deborah W.

Denno, Js Electrocution An Unconstitutional Method of

Execution? The Engineering of Death Over the Century, 35

Wm. & Mary L. Rev. 551, 616-23 (1994) [hereinafter Denno-I]

(collecting authorities); Deborah W. Denno, Getting to Death:

Are Executions Constitutional?, 82 Iowa L. Rev. 319, 321-54

6

(1997) [hereinafter, Denno-II] (collecting authorities).? In

Kemmler, the Court held that the Eighth Amendment did not

apply to the states and deferred to the New York legislature’s

conclusion that electrocution was not a cruel and unusual

punishment under the state’s Electrical Execution Act.

Kemmler, 136 U.S. at 443.

For a range of reasons, Kemmler’s precedential value

has diminished substantially over the last century. First, the

Kemmler Court never specifically employed the Cruel and

Unusual Punishments Clause even though post-incorporation

cases have continued mistakenly to cite Kemmler as an Eighth

Amendment case. See Denno-II, 82 Iowa L. Rev. at 334

(collecting cases). Next, the Kemmler Court adopted the

burden of proof promulgated by the New York court that

required the prisoner to show “beyond doubt” that the

execution method was cruel and unusual. Kemmler, 136 U.S.

at 442. However, this standard has not been used since

Kemmler in death penalty cases. Although courts, as in

Provenzano, typically fail to identify the burden of proof when

reviewing the constitutionality of execution methods, the

burden of proof courts cite most frequently -- preponderance of

the evidence -- is far less stringent. Denno-II, 82 Iowa L. Rev.

at 335 (collecting cases). Moreover, a court reviewing

electrocution under the Eighth Amendment would not defer to

the state’s legislature to the extent this Court did when deciding

Kemmler. Kemmler, 136 U.S. at 442-43 (quoting the New

York Supreme Court’s explanation of why it deferred to the

legislature). Most critically, Kemmler was decided before

anyone had been electrocuted; therefore, the Court had limited

evidence in reaching its conclusion. Historical analyses suggest

: Reprints of Professor Denno’s William & Mary Law Review and

Iowa Law Review articles are being lodged with the Clerk, for the

convenience of the Court.

5

that Kemmler was based in large part on the law, science, and

politics of the time as well as the particular uncertainties

resulting from the passage of New York’s Electrocution Act.

See generally Craig Brandon, The Electric Chair: An Unnatural

American History 7-159 (1999); Denno-I, 35 Wm. L. Rev. at

562-604 (detailing the competition between Thomas Edison

and George Westinghouse concerning whose current would

dominate the electrical industry).

Both legally and scientifically, then, Kemmler’s 1890

electrocution was a “human experiment.” By all accounts, the

experiment failed. In graphic detail, the media reported the

confusion, mistakes, and physical violence that resulted from

Kemmler’s execution. Regardless, electrocution became a

popular means of execution in other states, which also reported

mishaps and botches. See Brandon at 7-257; Denno-I, 35 Wm.

L. Rev. at 599-676. Seemingly, the desire to perpetuate the

death penalty outweighed any humanitarian goal to switch to

anew method. See Denno-II, 82 Iowa L. Rev. at 388-94.

The Kemmler Court’s factual assumptions regarding the

acceptability of electrocution have no support in light of

modern evidence of electrocution’s effects on the human body.

See, e.g., Poyner v. Murray, 508 U.S. 931, 933 (1993) (Souter,

J., joined by Blackmun and Stevens, JJ, respecting denial of

certiorari) (emphasizing that Kemmler was not “a dispositive

response to litigation of the issue [of the constitutionality of

electrocution] in light of modern knowledge”). One of the

Kemmler Court’s legal conclusions, however, remains viable:

“Punishments are cruel when they involve torture or a lingering

death.... something more than the mere extinguishment of life.”

Kemmler, 136 U.S. at 447.

Since 1962, when the Court held in Robinson v.

California, 370 U.S. 660, 666 (1962), that the Eighth

8

Amendment applies to the states, the Court’s Eighth

Amendment doctrine has emphasized an “evolving standard of

decency.” See Denno-II, 82 Iowa L. Rev. at 337-38 (collecting

cases). Consistent with the “evolving standards of decency”

and Kemmler’s “torture and lingering death” standards, the

Court’s Eighth Amendment jurisprudence suggests four

interrelated criteria for determining the constitutionality of an

execution method : (1) “the unnecessary and wanton infliction

of pain,” (2) “nothing less than” human dignity (e.g., “a

minimization of physical violence during execution’), (3) the

risk of “unnecessary and wanton infliction of pain,” and (4)

“evolving standards of decency” as measured by “objective

factors to the maximum extent possible,” such as legislation

passed by elected representatives or public attitudes. See

Denno-II, 82.lowa L. Rev. at 321-402 (collecting cases).

In Provenzano, the Florida Supreme Court’s skeletal

per curiam opinion virtually ignored the great bulk of the

Court’s Eighth Amendment jurisprudence. Therefore, the

Florida Supreme Court effectively begged the question of

electrocution’s continued propriety under an “evolving

standards of decency” test. Indeed, no court has reviewed the

constitutionality of electrocution under modern Eighth

Amendment standards which consider, as a substantial part of

an “evolving standards of decency” analysis, legislative trends

and related information, such as public opinion polls.

I. MODERN EIGHTH AMENDMENT ANALYSIS

DEMONSTRATES THAT EXECUTION BY

ELECTROCUTION CONSTITUTES CRUEL AND

UNUSUAL PUNISHMENT

Under the Court’s modern Eighth Amendment

jurisprudence, pain is only one of a range of factors suggesting

that an execution by electrocution constitutes cruel and

9

unusual punishment. This section discusses briefly the pain

and physical violence of electrocution, but then focuses on

other Eighth Amendment criteria, most particularly the strong

showing of legislative trends away from electrocution.

A. Electrocution Constitutes “Unnecessary and Wanton

Infliction of Pain”

The most recent research and eyewitness observations

suggest that many factors associated with electrocution, such as

severe burning, boiling body fluids, asphyxiation, and cardiac

arrest, Can cause extreme pain when unconsciousness is not

instantaneous. See Denno-II, 82 Iowa L. Rev. at 354-58

(summarizing available medical publications, eyewitness

reports, and affidavit testimony). Table 9 (App., infra)

provides brief summaries of nineteen botched electrocutions

following Gregg v. Georgia, 428 U.S. 153 (1976), when the

Court ended its moratorium on the death penalty. See id. at

168-207. These botches provide considerable evidence of

extensive pain and suffering experienced by electrocuted

prisoners. Notably, even a routine or “properly performed”

electrocution can cause intense pain and a lingering death. See

Sherwin B. Nuland, M.D., Cruel and Unusual, N.Y. Times,

Nov. 9, 1999, at A25 (“Even when it functions exactly as it

should, the electric chair is a brutal killer.”); see also Sherwin

B. Nuland, How We Die: Reflections on Life’s Final Chapter

(1993) (discussing different methods of death and the pain

associated with them).

B. Electrocution Constitutes “Physical Violence” and

Offends “Human Dignity”

Evidence of mutilation resulting from electrocution is

derived from three sources: post-execution autopsies, which are

required in some states; observations provided by experts; and

10

witnesses’ descriptions of executions, some of which are

detailed in App., Table 9, infra. The effects of electrocution on

the human body include the following: charring of the skin and

severe external burning, such as the possible burning away of

the ear; exploding of the penis; defecation and micturition,

which necessitate that the condemned person wear a diaper;

drooling and vomiting; blood flowing from facial orifices;

intense muscle spasms and contractions; odors resulting from

the burning of the skin and the body; and extensive sweating

and swelling of skin tissue. Denno-II, 82 Iowa L. Rev. at 359.

Sunilar to Allen Lee Davis’ execution, for example, the

execution of Wilbert Lee Evans in Virginia resulted in

substantial bleeding. According to accounts by witnesses and

reporters, blood poured from Evans’ eyes and nose, drenching

his shirt. Moreover, the flames witnessed during the 1990

execution of Jesse Joseph Tafero and the 1997 execution of

Pedro Medina made the public explicitly aware of how a

human body could be burned and distorted during an

electrocution. See App. Table 9, infra.

C. Electrocution Constitutes the Risk of “Unnecessary and

Wanton Infliction of Pain”

When legislatures or courts validate the use of

electrocution, they presume that prison officials will carry out

executions properly and that equipment will not malfunction.

A focus on electrocutions in all states and over time, however,

reveals the potential for prison personnel’s contribution to a

risk of unnecessary pain.

In 1990, for example, the botched electrocution of Jesse

Joseph Tafero in Florida suggested there was a substantial

likelihood the state’s execution procedure could result in

severe pain and prolonged agony. Subsequently, a pattern of

1]

consecutive malfunctions has been established with the botched

electrocution of Pedro Medina and, now, James Allen Davis.

Tafero’s and Medina’s executions shared similar problems

(most particularly difficulties with the headset sponge), that

created the flames, smoke, smell, and burning in both

executions. See App. Table 9, infra. Ironically, Tafero’s and

Medina’s executions closely resembled William Kemmler’s

over a century ago. The fact that a new and additional set of

problems accompanied the execution of James Allen Davis

suggests that a continuing pattern of botches is highly

foreseeable. Indeed, a pattern of consecutive botching also

occurred in Virginia even after the state rewired the electric

chair due to prior botching. These problems prompted Virginia

to allow inmates a choice between electrocution and lethal

injection. See Denno-II, 82 Iowa L. Rev. at 362 & n. 262.

D. Electrocution Contravenes “Evolving Standards of

Decency”

“Evolving standards of decency” can be measured by

legislative trends regarding the imposition of a particular

punishment. A thorough assessment should consider

legislative changes in execution methods over the course of the

twentieth century, starting with the New York legislature’s

1888 selection of electrocution. See Denno-II, 82 Iowa L. Rev.

at 363-408, 439-64; App. Tables 2-4, infra.

In general, three themes emerge from an 1888-1999

overview of legislative trends in the use of the five available

methods of execution in the United States: hanging, firing

squad, electrocution, lethal gas, and lethal injection. First, most

state legislatures purport to change from one method of

execution to another, or to a "choice" between a state's old

method of execution and lethal injection, for humanitarian

reasons, although other factors, such as cost, can also be

12

influential. Second, legislatures evidence a fairly consistent

pattern of movement from one method of execution to another,

suggesting that states take notice of the methods used, and the

difficulties encountered, by other states. Third, since 1977,

when lethal injection was first introduced, no state has changed

to, or included as an additional "choice," any other method of

execution but lethal injection. In general, states' changes in

execution methods have occurred in the following order: from

hanging to electrocution to lethal gas to lethal injection. The

firing squad has been used only sporadically in only a few

states. See Denno-II, 82 Iowa L. Rev. at 363-408, 439-64; App.

Tables 2-4, infra.

In 1853, hanging, the "nearly universal form of

execution," was used in 48 "states" (many of which were still

considered territories at that time). Nearly four decades later,

however, concerns over the barbarity of hanging and the

subsequent advent of electrocution prompted states to change

their method of execution from hanging to electrocution. Even

though the first electrocutions were grotesquely botched, by

1913, a total of 15 states had changed to electrocution as a

result of "a well-grounded belief that electrocution is less

painful and more humane than hanging." Malloy v. South

Carolina, 237 U.S. 180, 185 (1914). By 1949, 26 states had

changed to electrocution, the largest number of states that had

ever used electrocution at the same time. However, since 1949,

no state has selected electrocution as its method of execution.

In other words, it has been a half century since any legislature

has adopted electrocution as a method of execution. See Denno-

II, 82 lowa L. Rev. at 363-408, 439-64; App. Tables 2-4, infra.

The gradual cessation of states’ adoption of

electrocution appears to be attributable to Nevada's switch in

1921 from hanging and shooting to lethal gas in accordance

with the state's new Humane Death Bill. By 1955, 11 states

13

were using lethal gas and 22 states were using electrocution.

By 1973, 12 states were using lethal gas and 20 states were

using electrocution. Since 1973, however, no state has selected

lethal gas as a method of execution. See Denno-II, 82 Iowa L.

Rev. at 366-67.

With each new lethal gas statute came controversy and

constitutional challenges, both before and after the Court's

moratorium on capital punishment in Furman, 408 U.S. at 238.

By 1994, there was a "national consensus" concluding that

lethal gas was not an acceptable method of execution. See

Denno-Il, 82 Iowa L. Rev. at 368.

Recent research indicates that there is an even more

striking national consensus rejecting electrocution. Since 1973,

12 states have abandoned lethal gas as their exclusive method

of execution. By contrast, since 1949, 22 states have

abandoned electrocution as their exclusive method of

execution. Moreover, 7 of these states have abandoned

electrocution in the last six years. See Denno-Il, 82 Iowa L.

Rev. at 368-70; App. Tables 1-4, infra.

There are historical differences between the uses of

electrocution and lethal gas that point to states’ initial, relative

reluctance, to reject electrocution. First, over the course of the

century, states have relied on Kemmler to support the retention

of electrocution whereas no Court case has addressed the

constitutionality of lethal gas. Next, electrocution was

introduced three decades earlier than lethal gas during a time

when science was substantially less advanced; therefore, lethal

gas, which was also a considerably more visible method than

electrocution, had the advantage of greater immediate scrutiny.

Nonetheless, electrocution and lethal gas have comparable

"legislative lifelines" (61 years and 51 years, respectively) in

terms of the point at which they were introduced and the point

14

at which they were no longer adopted, thereby suggesting

comparable periods of tolerance. (Electrocution was first

introduced in 1888 and last adopted in 1949; lethal gas was first

introduced in 1921 and last adopted in 1973.) Lastly, lethal gas

is more expensive than electrocution, a factor that states have

acknowledged when they have changed execution methods.

See Denno-lIl, 82 Iowa L. Rev. at 370-71 & n.298.

Recent trends also suggest that state legislatures may

have reached a "sufficient" degree of national consensus in

rejecting both lethal gas and electrocution as execution

methods. Although the Court has never specified how much of

a consensus is considered "sufficient," it has rendered

punishments unconstitutional with far less consensus than that

shown for lethal gas or electrocution. In Enmund v. Florida,

458 U.S. 782 (1981), for example, the Court held the death

penalty unconstitutional for some kinds of felony murder,

explaining that of the 36 death penalty jurisdictions, "only" 8,

"a small minority," allowed capital punishment for such an

offense. /d. at 792. Furthermore, even if the Court considered

along with these 8 states an additional 9 jurisdictions that

allowed the death penalty for an unintended felony murder if

aggravating circumstances outweighed mitigating

circumstances, the Court emphasized that still "only about a

third of American jurisdictions" would allow a defendant to be

sentenced to death for such offenses. /d. (emphasis added).

The Court noted that even though this trend was not "wholly

unanimous among state legislatures ... it nevertheless weighs

on the side of rejecting capital punishment for the crime at

issue." Jd. at 793; see also Denno-Il, 82 Iowa L. Rev. at 371.

In those cases where the Court has rejected Eighth

Amendment challenges to a particular punishment, there have

been far more states employing that particular punishment than

the number of states employing electrocution. See, e.g.,

15

Stanford v. Kentucky, 492 U.S. 361, 370-71 (1989) (rejecting

a challenge to the constitutionality of the death penalty for 16-

year-olds, noting that 22 of the 37 death penalty jurisdictions

allowed capital punishment for such youths); Penry v. Lynaugh,

492 U.S. 302, 334-35 (1989) (rejecting a challenge to the

constitutionality of the death penalty for mentally retarded

persons, emphasizing that only two states had prohibited it).

See also Denno-II, 82 Iowa L. Rev. at 371 & n. 306.

Over time, lethal injection has become the

overwhelmingly dominant method of execution. See App.

Tables 5-7, infra. Among those inmates executed by either

electrocution or lethal injection between 1978-79 and 1998-99,

75% were executed by lethal injection and 25% were executed

by electrocution. As the total number of executions from these

two methods increased over time (from | execution in 1978-79

to 156 executions in 1998-99), the percentage of electrocution

executions declined steadily. The percentage of electrocution

executions declined rapidly from 1980-81 to 1986-87 (from

100% to 56%), increased briefly in 1988-89 (58%), then

declined steadily thereafter. The rapid increase in the

percentage of lethal injection executions can be attributed to the

fact that the increases over time in the total number of

executions was driven largely by increases in lethal injection

executions. See id.

There are other issues that bear on “evolving standards

of decency.” For example, apart from the United States, no

other country in the world uses electrocution. Of the four

remaining states in this country that use electrocution

(Alabama, Florida, Georgia, and Nebraska), Florida imposes

the most electrocution executions. Since Gregg, more than half

of the electrocutions in this country, and thus in the world, have

taken place in Florida. See App. Table 8, infra.

16

Electrocution is also not favored as a method of

execution among respondents in recent public opinion polls.

Lethal injection is preferred by most, if not the great majority,

of respondents. See Carla McClain, Arizona Gas Chamber

Stays, Gannet News Serv., Apr. 7, 1992, available in LEXIS,

Nexis Library, Wires File (84% favoring lethal injection);

George Skelton, Death Penalty Still Strong in State, L.A.

TIMES, Apr. 29, 1992, at Al, Al8 (63% favoring lethal

injection). Floridians also have indicated majority support for

lethal injection after Davis’ execution. See Steve Bousquet,

Floridians Favor Move from Electric Chair to Injection, Poll

Shows, Miami Herald, Nov. 8, 1999 (reporting the results of an

October, 1999, statewide poll conducted by The Miami Herald

and The St. Petersburg Times, in which 58% of the 600 people

questioned supported a state law to replace the electric chair

with lethal injection). See also, Poll: Electric Chair Unpopular

in Florida, OMAHA WORLD-HERALD, Nov. 7, 1999, at 22a.

The Florida Corrections Commission, the body

responsible for overseeing Florida’s electric chair, has also

recommended that Florida change to lethal injection. The

Commission’s survey of execution methods in other states

revealed that “numerous states had recently changed to lethal

injection from electrocution because it was considered to be a

‘more humane method of execution.’” Provenzano, at *25

(Shaw, J., dissenting). Lastly, the Humane Society of the

United States and the American Veterinarian Medical

Association consider electrocution a wholly unacceptable

method of euthanasia for animals.

In Provenzano, the Florida Supreme Court failed to

address these critical “evolving standards of decency” factors.

Clearly, a modern Eighth Amendment analysis of electrocution

reveals the court’s unjustified conclusion that electrocution is

constitutional.

17

CONCLUSION

The judgment of the Florida Supreme Court should be

reversed.

Respectfully submitted,

BRUCE A. GREEN

Louis Stein Professor of Law

Director, Louis Stein Center

for Law and Ethics

Fordham University School of Law

140 West 62nd Street

New York, New York 10023

(212) 636-6851

Counsel of Record

December 1999

APPENDIX

la

TABLE 1

CURRENT METHODS OF EXECUTION BY STATE*

REAR R

POPP Daas

onoeeeoreee,

LETHAL INJECTION (24) ELECTROCUTION (4)

Arizona Arkansas California | Alabama Florida

Colorado Connecticut Georgia Nebraska

Delaware Illinois Indiana

Kansas Kentucky Louisiana

Maryland Mississippi

Nevada New Jersey

New Mexico New York

Oklahoma Oregon

Pennsylvania South Dakota

Tennessee Texas Wyoming

INJECTION OR HANGING (3)

Montana New Hampshire Washington

INJECTION OR FIRING SQUAD (2)

Idaho Utah

INJECTION OR ELECTROCUTION (3)

Ohio South Carolina Virginia

INJECTION OR GAS (2)

Missouri North Carolina

* Statutory and case law documentation for each state can be found in Denno-II, 82

lowa L. Rev. at 439-64; Ky. REV STaT. ANN. §431.220 (1998), TENN. CODE ANN

§ 40-23-114 (1998), LaGrande v. Stewart, 173 F.3d 1144 (9 Cir. 1999)

(California and Arizona)

2a

TABLE 2

CHANGES IN THE USE OF ELECTROCUTION BY

STATE: 1888-1928

HANGING TO

ELECTROCUTION

ELECTROCUTION

TO

LETHAL GAS

ELECTROCUTION

TO

LETHAL

INJECTION

zZPm=

Baral wv

1888 NY

1896 OH

1898 MA

1906

Zz

i

—_—

1908 VA

1909 NC

1910

1912

az [sa |a(z|s le |g (2/2

1913 :

1923

1924 | GA |] GA

1927 IL TE

NO CHANGE IN

EXECUTION

METHOD

3a

TABLE 3

CHANGES IN THE USE OF ELECTROCUTION BY

STATE: 1929-1982

Y s HANGING TO ELECTROCUTION | ELECTROCUTION

E T ELECTROCUTION TO TO

A 4 LETHAL GAS LETHAL

R r INJECTION

E

1929

1935

1939

1940

1949

1951

1954 | MS

1955 | NM

1965 | VT"

wv*

1977 | TX

1982 | MA

NO CHANGE IN

EXECUTION

METHOD

* Year these states abolished the death penalty.

** Choice states. For example, if a state (e.g., Massachusetts) changes

from one execution method (electrocution) to a choice between that method

and a new method (a choice between electrocution and lethal injection in

1982), the new method (lethal injection) only is shown in the Table.

4a

TABLE 4

CHANGES IN THE USE OF ELECTROCUTION BY

STATE: 1983-1999

HANGING TO ELECTROCUTION ELECTROCUTION

ELECTROCUTION TO TO

LETHAL GAS LETHAL

INJECTION

zr me

Atrain

1983 IL

1984 | MA*

1990 LA

1993 | OH

1994 VA

1995 IN

1998 KY

NO CHANGE IN

EXECUTION

METHOD

* Year these states abolished the death penalty

** Choice states. For example, if a state changes from one execution method to a

choice between that method and a new method, the new method only is shown in

the Table

Note: Statutory and case law documentation for each state in Tables 24 may be

found in Denno-II, lowa L. Rev. at 439-64; Ky. REV STAT. ANN. §431.220 (1998),

TENN. CODE ANN. § 40-23-114 (1998); LaGrande v. Stewart, 173 F.3d 1144 (9%

Cir. 1999) (California and Arizona).

Sa

| TABLE 5

| NUMBER AND DISTRIBUTION OF

| ELECTROCUTION AND LETHAL INJECTION

EXECUTIONS IN TWO-YEAR INTERVALS:

1976-1999*

| YEARS || ELECTROCUTION LETHAL TOTAL

INJECTION

1976- 0 0 0

1977

1978- 0 l

1979 (1.00) (0.00)

1980- 0

1981 (1.00) (0.00)

1982- 5 6

1983 (0.83) (0.17)

1984- 27 12 39

1985 (0.69) (0.31)

1986- 23 18 41

1987 (0.56) (0.44)

1988- 15 11 26

1989 (0.58) (0.42)

6a

TABLE 5

CONTINUED*

YEARS || ELECTROCUTION LETHAL TOTAL

INJECTION

1990- 18 18 36

1991 (0.50) (0.50)

1992- 18 47 65

1993 (0.28) (0.72)

1994- 13 72 85

1995 (0.15) (0.85)

1996- 13 104 117

1997 (0.11) (0.89)

1998- 10 146 156

1999 (0.06) (0.94)

TOTAL 144 429 573

(1976- (0.25) (0.75)

1999)

*From 1976-1999, executions from other methods (hanging, shooting,

and lethal gas) constituted 2.71% of the total number of executions.

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TABLE 9*

BOTCHED ELECTROCUTION

EXECUTIONS FOLLOWING

Gregg v. Georgia, 423 U.S. 153 (1976)

1. John Spenkelink, May 25, 1979, Florida:

It took three separate jolts of electricity spread over five minutes to

kill Spenkelink. After the first joit, smoke filled the room and a three-

inch wound scorched on his right leg.

2. Frank J. Coppola, August 10, 1982, Virginia:

After a second jolt of electrical current, the death chamber filled with

the smell and sizzle of burning as Coppola’s head and leg burst into

flames.

3. John Louis Evans III, April 22, 1983, Alabama:

Three separate jolts over 14 minutes were required to kill Evans.

Flames erupted from the electrode tied to his leg, and smoke was seen

coming from his head and leg.

4. Robert W. Williams, December 14, 1983, Louisiana:

When the electricity was applied, smoke and sparks appeared from

Williams's head. Witnesses reported the smell of "burning flesh" and

"excessive burning."

5. Alpha Otis Stephens, December 12, 1984, Georgia:

It took two two-minute jolts of 2,080-volt electricity, eight minutes

apart, to kill Stephens. After the first jolt, doctors had to wait six

minutes for the body to cool down before examining it. During this

time, Stephens took about 23 breaths

6. William E. Vandiver, October 16, 1985, Indiana:

Indiana's seventy-two year old electric chair took seventeen minutes

and five jolts of electricity to kill Vandiver.

lla

7. Alvin Moore, June 9, 1987, Louisiana:

When examined after his execution, Moore was severely burned on

the top of his head and his epidermis was found to be missing in a

wide circular pattern.

8. Wayne Robert Felde, March 15, 1988, Louisiana:

Felde's body evidenced severe third and fourth degree burns. His leg

was mutilated, his skin was coming loose, and "chunks of skin" had

been "burned off the left side of his head . . . revealing his skull bone."

9, Horace F. Dunkins, July 14, 1989, Alabama:

An incorrectly wired chair took nineteen minutes to kill the mentally

retarded Dunkins.

10. Jesse Joseph Tafero, May 4, 1990, Florida:

For four minutes, the executioner applied three 2,000-volt jolts of

electricity, causing flames to shoot from Tafero's head. The medical

examiner could not determine whether Tafero survived the first two

jolts.

11. Robert T. Boggs, July 19, 1990, Virginia:

Boggs required two fifty-five second applications of 2,500-volts of

electricity.

12. Wilbert Lee Evans, October 17, 1990, Virginia:

During the execution, blood poured from Evans's eyes and nose.

Witnesses heard an audible moan, suggesting suffering.

13. Derick Lynn Peterson, August 22, 1991, Virginia:

Peterson's death occurred after thirteen minutes and two separate jolts

of electricity. After the first series of jolts, Peterson's heart appeared

to still be beating.

14. Roger Keith Coleman, May 20, 1992, Virginia:

Executioners applied two 1,700-volt jolts to kill Coleman. A witness

spoke of smoke coming from Coleman's leg during the execution.

12a

15. Gregory Resnover, December 8, 1994, Indiana:

When the electricity was applied, Resnover rose suddenly "from his

chair in a giant spasm... His head jerked back and smoke and spark-

like flames came out of the top of his head."

16. Jerry White, December 4, 1995, Florida:

There were reports that White lunged and screamed during his

execution

17. Larry Lonchar, November 14, 1996, Georgia:

Lonchar moaned and "seemed to gasp for air" as the executioner

applied two jolts of 2,000 volts each to Lonchar's body before he was

pronounced dead

18. Pedro Medina, March 25, 1997, Florida:

"Blue and orange flames up to a foot long shot from the right side of

Mr. Medina's head and flickered for 6 to 10 seconds, filling the

execution chamber with smoke."

19. Allen Lee Davis, July 8, 1999, Florida:

After being jolted with 2,300 volts, blood poured from Davis’ face,

and soaked a large portion of his shirt. Testimony indicated that the

strap placed across Davis’ mouth hindered his breathing and partially

asphyxiated him prior to and during the electrocution.

* Documentation for each blotched electrocution can be found in Denno-l, 35 Wm

& Mary L. Rev. at 664-74. and Denno-Il. 82 lowa L. Rev. at 412-24, as

supplemented by Provenzano v. State (Davis) .

2)