# Amicus Curiae Brief — Bryan v. Moore

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0959%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1133

## Text

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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ME os ca, eee | ach eerste teers 2a
BE oe ieee ea ea a ee ee 3a
Lik ere an rete Ser, er ee money > Oi Ayton 4a
L; Sener a A ae ae re Peers Sa
Table 6. . oe | ee a ae yee Ta
TO Fe es ee eee ee ee a 8a
i) ee Veet Me ae 9a
fe eT eet Wor er metry Meccan Shey arrange nls 10a

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

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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
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1908 VA

1909 NC

1910

1912

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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.

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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)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0959%3A05. Public record. Not legal advice.