Amicus Curiae Brief — Bryan v. Moore

; ' Supreme Court, U.S.

pec 20/77 fe Piven.

No. 99-6723 2 uth 2 Q 1999

OFFICE OF THE CLERK

IN THE

Supreme Court of the Wnited States

ANTHONY BRADEN BRYAN,

- Petitioner,

v.

MICHAEL MOORE, Secretary, Florida

Department of Corrections,

~ Respondent.

On WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

BRIEF OF PHYSICIANS FOR HUMAN RIGHTS, GLOBAL

LAWYERS AND PHYSICIANS, SOCIETY OF GENERAL

INTERNAL MEDICINE, AMERICAN NURSES

ASSOCIATION AND AMERICAN PUBLIC HEALTH

ASSOCIATION AS AMICI CURIAE IN

SUPPORT OF REVERSAL

MartTIN J. NEWHOUSE

Counsel of Record

CrysTAL D. TALLEY

KIMBERLY L. PEDERSEN

ELAINE J. GOLDENBERG

Ropes & GRAY

One Internetional Place

Boston, Massachusetts 02110

(617) 951-7000

Attorneys for Amici Curiae

Physicians for Human Rights, et al.

—_

ea

156880 @ Counsel Press LLC

(800) 274-3321 + (800) 359-6859

l

TABLE OF CONTENTS

Page

Table of Cited Authorities .................... il

Interest of the Amici Curiae ................... ]

Summary of the Argument .................... 3

ss, cenit EE CTT TTT oN here 5

I. It Is Undisputed That The Physiological

Effects of Electricity are Extremely Painful

ALND R AMER EEE REDS DO RRO NOEL OE one oes 3

II. There Is A Substantial Risk That Inmates

Remain Conscious For Some Period Of Time

During A Judicial Electrocution.......... 8

RE eee eee re 18

TABLE OF CITED AUTHORITIES

Cases:

Fierro v. Gomez, 865 F. Supp. 1387 (N.D. Cal.

1994), aff'd, 77 F.3d 301 (9th Cir.), vacated, 519

As PED CONSE) ia ds ee ee edaneehe ee ones

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

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

Poyner v. Murray, 507 U.S. 981 (1993) .........

Provenzano v. Moore, __ So. 2d _, 1999 WL

Fa@uss Hie. SOM, Dy TSPF) vv iiecan cease

Other Authorities:

1993 Report of the AVMA Panel on Euthanasia, 202

JAVIBA 250 Clam. 15, PRS) asec cov acessaaes

Arnold Beichman, The First Electrocution, 35

COMMENTARY 410 (May 1963) ...............

Theodore Bernstein, Electrical Injury: Electrical

Engineer’s Perspective and an Historical Review,

ANNALS OF NEW YORK ACADEMY OF SCIENCES, May

SOO vevvisccdnnd cane ses eee eee

HARRISON’S PRINCIPLES OF INTERNAL MEDICINE 859

(Eugene Braunwald et al. eds., 11th ed. 1987)

ees @eeseeueu eo eosece PCeseosesveeeaee eC eee eae eae nhaen ea 6 6 oe

Page

17

Cited Authorities

Nisha Chibber Chandra et al., Clinical Predictors

of Myocardial Damage After High Voltage

Electrical Injury, 18 CriticAL CARE MED. 293

Se ee ee eee eee

MacDonald Critchley, Electrical Injuries, LANCET,

es lak gah e wee be 6 ieee a6 n.9-

MacDonald Critchley, Neurological Effects of

Lightning and of Electricity, LANCET, Jan. 13,

SR renee ee

Martin R. Gardner, Executions and Indignities - An

Eighth Amendment Assessment of Methods of

Inflicting Capital Punishment, 39 Onto St. L.J.

EE ee eee

IAN Gray & Moira STANLEY, A PUNISHMENT IN

Seancn or A Crime (1989) .........2.c cece.

Baiba J. Grube et al., Neurologic Consequences of

Electrical Burns, 30 J. TRAUMA 254 (Mar. 1990)

J.P. Guinard et al., Myocardial Injury After Electrical

Burns: Short and Long Term Study, 21 Scanb. J.

PLAST. RECONSTR. SuRG. 301 (1987) ...........

C.E. HARTFORD, CARE OF THE CRITICALLY ILL PATIENT

(J. Tinker & M. Rapin eds., 1983) ............

Page

10

11

16

iv

Cited Authorities

Page

Harold Hillman, An Unnatural Way to Die, 27 NEw

oe wy Tk | ee eae 3, 8,9

Harold Hillman, The Possible Pain Experienced

During Execution By Different Methods, 22

PERCEPTION 745 (1993) .......... Ds Be be Ba aT

John L. Hunt et al., The Pathophysiology of Acute

Electrical Injuries, 16 J. TRAUMA 335 (1976) ... 9

Thomas N. James et al., Cardiac Abnormalities

Demonstrated Postmortem in Four Cases of

Accidental Electrocution and Their Potential

Significance Relative to Nonfatal Electrical

Injuries of the Heart, 120 AMERICAN Heart J. 143

EE 0 hadnt sdieliadaecse cleanses 12,15

PRINCIPLES OF NEURAL SCIENCE (Eric R. Kandel

OPER. Sis SEOEE Cw ke dh wecekpesdtheunewunen 6

John G. Leyden, Death in the Hot Seat: A Century

of Electrocutions, WasH. Post, Aug. 5, 1990 ... 3

Sherwin Nuland, Cruel and Unusual, N.Y. TIMEs,

Me ee eee Seren Sore rr a 4

Bernard M. Patten, Lightning and Electrical Injuries,

10 NEUROLOGY OF TRAUMA 1047 (Nov. 1992) ...

ere e ETE ee ee ee Pe eee Te Ee 12, 16, 17

A. Sances, Jr. et al., Electrical Injuries, 149 SuRGERY,

GYNECOLOGY & OssTETRICS 97 (1979) ......... Lt, 12

Cited Authorities

Page

V. Garcia-Sanchez & P. Gomez Morell, Electric

Burns: High- and Low-Tension Injuries, 25 BURNS

Eki | rere ere Seer reer 9,10

WILLIAM A. SCHAPAS, THE DEATH PENALTY AS CRUEL

TREATMENT AND TORTURE (1996) ............. 4

Joseph Still et al., Electrocution Due to Contact of

Industrial Equipment with Power Lines, 23 BURNS

PT CeOED: bon 45s ch eRe ee eee 11

NEGLEY K. TEETERS, HANG BY THE NECK (1967)

se Rae Woe kee Ee a a Ce eae 15

HANDBOOK OF CLINICAL NEUROLOGY (P.J. Vinken

eth ey) ere ee ae

]

INTEREST OF THE AMICI CURIAE'

Physicians for Human Rights is an organization of health

professionals, scientists, and concerned citizens that uses the

knowledge and skills of the medical and forensic sciences

to investigate and prevent violations of international human

rights and humanitarian law. In addition to its various

initiatives, Physicians for Human Rights works to prevent

medical complicity in torture and other abuses. Physicians

for Human Rights conducts educational training projects for

health professionals, members of the judiciary, and human

rights advocates on the application of medical and forensic

skills in the investigation of violations of human rights. In

recognition of its accomplishments, Physicians for Human

Rights shared in the 1997 Nobel Peace Prize for its work on

the steering committee of the International Campaign to Ban

Landmines.

Global Lawyers and Physicians works to protect the

human rights and dignity of all persons. Its goal is to provide

support and assistance in developing, implementing, and

advocating public policies and legal remedies that protect

and enhance human rights in health. Global Lawyers and

Physicians also co-directs the Boston Center for Refugee

Health and Human Rights, whose mission is to prevent

torture and aid survivors of torture.

The Society of General Internal Medicine is an

international organization of physicians and others who

1. Pursuant to Rule 37.6 of the Rules of the Supreme Court of

the United States, the amici curiae state that no counsel for either

party has authored this brief in whole or in part and no person or

entity, other than the amici curiae, their members, or their counsel,

has made a monetary contribution to the preparation or submission

of this brief.

2

combine caring for patients with education and research. It

is dedicated to improving patient care, education, and

research in general medicine, as well as to promoting social

responsibility.

The American Nurses Association (“ANA”) is an

association of registered nurses that is dedicated to the

advancement of the goals and interests of registered nurses

and of the nursing profession generally. It was founded in

1897 to promote the professional and educational

advancement of nurses. The ANA represents approximately

185,000 nurses in the United States and its territories through

its 54 constituent member organizations. The ANA

establishes professional standards for nursing practice,

nursing education, and nursing services as well as a code of

ethical conduct for nurses.

The American Public Health Association (“APHA’”’) is

a national non-profit organization devoted to the promotion

and protection of personal and environmental health.

Founded in 1872, APHA is the largest public health

organization in the world, representing over 50,000 public

health professionals. It represents all disciplines and

specialties in public health.

The amici are familiar with the medical evidence relevant

to whether the electrocution process causes intense pain, and

are concerned about the risk of a prolonged, torturous death.

Because an informed discussion of this evidence will

illuminate the question presented to the Court, the amici are

filing this brief to aid the Court’s resolution of this case.

3

SUMMARY OF THE ARGUMENT

From its first use in 1890 in New York to the present,

electrocution as a method of judicial execution has been

described repeatedly as “torture,” akin to medieval methods

such as boiling in oil. See, e.g., Arnold Beichman, The First

Electrocution, 35 COMMENTARY 410, 415-18 (May 1963);

John G. Leyden, Death in the Hot Seat: A Century of

Electrocutions, Wash. Post, Aug. 5, 1990, at DOS (“The New

York Herald called the execution [in 1890] ‘death by

torture.’ ”); Harold Hillman, An Unnatural Way to Die, 27

New ScIENTIsT 278, 278 (Oct. 1983) (“He feels himself being

burnt to death. . . . It must feel very similar to the medieval

trial by ordeal of being dropped into boiling oil.”).

While there is no dispute that application of an electrical

current of the magnitude used in a judicial electrocution

affects the body in ways that would ordinarily cause

tremendous pain, what is disputed is whether the inmate

suffers no pain due to immediate brain death. However, no

study definitively shows that intentional electrocution causes

immediate brain death. See R2. at 705.” Because of a lack of

research, there is in fact no scientifically valid data to support

the claims advanced in favor of electrocution as an immediate

and painless means of execution. See Martin R. Gardner, _

Executions and Indignities - An Eighth Amendment

Assessment of Methods of Inflicting Capital Punishment, 39

Onto St. L.J. 96, 125 (1978); Hillman, An Unnatural Way

to Die, supra, at 278 (noting that “[t]here is no reason

whatsoever to believe that the condemned person does not

2. Citations to “R1.” refer to the April 1997 hearing in Jones

v. Butterworth, 695 So. 2d 679 (Fla. 1997). Citations to “R2.” refer

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

Citations to “R3.” refer to the July 1999 hearing in Provenzano v.

Moore, __ So. 2d _, 1999 WL 756012 (Fla. Sept. 24, 1997).

4

suffer severe and prolonged pain’’). The reason for the lack

of research is simple: conducting such research on human

beings would amount to torture. See R2. at 422. In fact,

ironically, research on this method of electrocution is not

even conducted on animals, because it is considered

inherently cruel.* See WILLIAM A. SCHABAS, THE DEATH

PENALTY AS CRUEL TREATMENT AND TORTURE 163 (1996).

Because studies of the onset of death and/or unconsciousness

during judicial electrocution cannot be conducted, it is

impossible to establish with any degree of medical or

scientific certainty the truth of the claim that electrocution

provides an instant and painless death.

To the contrary, to the extent that scientific data is

available despite a dearth of direct research, the medical and

scientific literature and the expert testimony in this case

strongly support the proposition that death by electrocution,

even when carried out without technical failure or mistake,’

can be quite the opposite: an unreasonably prolonged and

torturous experience.

3. When animals are euthanized by electrocution, “[i]t is

imperative that [they] be unconscious before being electrocuted”

because “animals do not lose consciousness for 10 to 30 seconds or

more after onset of cardiac fibrillation,” the ultimate cause of death.

1993 Report of the AVMA Panel on Euthanasia, 202 JAVMA 230,

241 (Jan. 15, 1993).

4. Because it is the amici’s position that, “[e]ven when

functioning exactly as it should, the electric chair is a brutal killer,”

Sherwin Nuland, Cruel and Unusual, N.Y. Times, Nov. 9, 1999,

this brief does not address the question of so-called “botched”

electrocutions, in which the electric chair does not function as

intended due to technical failures or human error. Such cases are

well documented, as is the suffering inflicted upon inmates in such

instances.

5

ARGUMENT

I. It Is Undisputed That The Physiological Effects of

Electricity are Extremely Painful

It cannot be disputed that the magnitude of electricity

applied ir a judicial electrocution necessarily affects the body

in ways that would cause excruciating pain under normal

circumstances.° As noted by Dr. Harold Hillman, one of the

few researchers to publish on the topic of the pain caused by

judicial electrocution, medical evidence suggests that judicial

electrocution is quite painful. See Harold Hillman, The

Possible Pain Experienced During Execution By Different

Methods, 22 PERCEPTION 745, 750 (1993) (concluding that

judicial electrocution would be a painful method of

execution, citing evidence that defibrillation is painful,

electric burns are painful, electricity is used for torture, and

a survivor of the electric chair felt pain). A seminal work on

electrical injuries reports that when high-voltage electrical

accidents do not cause instantaneous unconsciousness, the

victim almost always experiences “an agonizing pain

throughout the body.” MacDonald Critchley, Electrical

Injuries, LANCET, Nov. 2, 1935, at 1002, 1003. See also

HANDBOOK OF CLINICAL NEUROLOGY 686 (P.J. Vinken & G.W.

5. Florida employs an automatic five-cycle electrocution

method that lasts for two minutes. See R1. Vol. 8 at 157. Between

2250 and 2350 volts are applied during the first cycle, which lasts

for eight seconds. See R1. Vol. 5 at 133. One thousand volts are

applied during the second cycle, which lasts for twenty-two seconds.

See id. at 134. Both the eight-second “high” cycle and the twenty-

two-second “low” cycle are repeated, followed by a final high cycle

of sixty seconds. See R1. Vol. 8 at 157. Although the system is set

to go through all five cycles automatically, according to the record

below in practice the cycles are always stopped manually four

seconds into the third cycle. See id. at 184-88.

6

Bruyn eds., 1975); Hillman, The Possible Pain Experienced,

supra, at 750. As the current travels through the body, it

causes every muscle to violently and completely contract,

which is an enormously painful experience. See Affidavits

of E.B. Ilgren, M.D. 920 (hereinafter “Ilgren Aff.”) and Dr.

Harold Hillman 412 (hereinafter “Hillman Aff.”), previously

submitted to the Court in Poyner v. Murray, 507 U.S. 981

(1993) (denial of petition for stay of execution).

The contractions can cause the limbs to move violently

against the straps, which may result in dislocations or

fractures. See Hillman, The Possible Pain Experienced,

supra, at 747. See also C.E. HARTFORD, CARE OF THE

CRITICALLY ILL PATIENT 690 (J. Tinker & M. Rapin eds.,

1983). Furthermore, electrical current at the level used in

judicial electrocutions causes the body’s temperature to rise,

heating the body fluids close to the boiling point of water

and causing painful swelling of the internal organs. See Ilgren

Aff. 921; Hillman Aff. 912. In addition, the high-voltage

electrical current applied during a judicial electrocution

causes second- and third-degree burns, which would be

excruciatingly painful. See HANDBOOK OF CLINICAL

NEUROLOGY, supra, at 720; Ilgren Aff. 919. See also CARE OF

THE CRITICALLY ILL PATIENT, supra, at 686. The painful nature

of these burns is evidenced by the fact that patients who

receive such severe burns and survive are regularly treated

with powerful pain reduction medication.® See Hillman

Aff. 411.

6. Indeed, when tissues are damaged, as with an electrical burn,

the sensation of the pain in response to subsequent exposure to the

stimulus can be increased. See PrincIPLES OF NEURAL SCIENCE 386

(Eric R. Kandel et al. eds., 1991). That is, the threshold for pain at

that location is reduced, and the area becomes hyper-sensitive to

pain. See id.

7

As the current travels through the body inflicting the

physical pain described above, it can also cause the sensation

of pain by directly activating the pain-sensing regions of the

brain. Although pain ordinarily is caused by the application

of a pain-causing stimulus to a body part, the sensation of

pain can also be produced by applying a certain quantum of

electrical current to the areas of the brain responsible for

sensation of pain. See R2. at 372. For example, if an electrical

current is applied to the brain cells responsible for sensing

pain in the foot, a person will feel pain in the foot, even if

there is no external stimulation to the foot causing pain.

See R3. at 437. Amputees often experience such “phantom

limb pain” when the area of the brain responsible for

sensing pain in the previously amputated limb is activated.

See id. Because the regions of the brain that control the

sensation of pain are located deep within the brain

and thus are protected frem the source of the current, it is

unlikely that they are instantly destroyed by the initial

application of electricity during a judicial electrocution.

See R3. at 438-39.’ It is more likely that weaker current

reaches the deeper areas of the brain, because electrical

current has a tendency to spread out to fill the available space,

resulting in current dissipation. See CARE OF THE CRITICALLY

ILL PATIENT, supra, at 682.° If only weaker current does reach

7. In addition to the fact that these regions are removed from

the source of the current, they are also protected by the skull, which

resists the flow of the electrical current. See infra pp. 9-10 for a

discussion of this point.

8. This concept is known as current density. A given amount

of current concentrated in a small area has a higher density than the

same amount of current concentrated in a larger area. See R3. at

560. As the State’s expert conceded, the spreading out of current

could be a significant factor in assessing the effect of electrical

current on the body. See R2. at 1028.

8

those areas, the pain-sensing regions of the brain are likely

activated, see R2. at 379, 406, which, in and of itself, would

cause the inmate to experience intense pain.

It is important to note that an absence of outward signs

of pain from an inmate during a judicial electrocution is

hardly evidence that the inmate is not experiencing severe

pain. The more likely explanation for a lack of expression is

that the manifestations of pain are hidden by the nature of

the procedure. See Hillman, An Unnatural Way to Die, supra,

at 278. For one thing, the inmate is strapped to the chair at

the arms, legs and chest, and a mask covers his head. Further,

though it was once believed that a failure to move indicated

a lack of pain, it is now known that such a failure could be

due to the fact that the muscles are contracted maximally,

preventing the inmate from expressing or conveying that

pain. See Hillman Aff. 412. The muscle contraction itself is

excruciatingly painful, and is added to the pain of the burning

flesh and the heating of the organs as described above. See

id. The end result is that the inmate “feels himself being

burnt to death while he is conscious of his inability to

breathe.” Hillman, An Unnatural Way to Die, supra, at 278.

II. There Is A Substantial Risk That Inmates Remain

Conscious For Some Period Of Time During A

Judicial Electrocution

Though it is undisputed that severe burning of the skin,

massive contraction of the muscles, and rapid heating of the

internal fluids could result in great pain under normal

circumstances, the question at the core of the present debate

is whether the inmate being executed by electrocution is

conscious, or sufficiently conscious, so as to experience that

pain. The precise instant at which consciousness is lost when

9

electricity is applied to the human body is necessarily on the

edge of the unknowable. See Hillman Aff. 412 (stating that

“[a]lthough it is believed by proponents of death by

electrocution that the person being electrocuted may lose

consciousness and the sensation of pain as soon as

electrocution begins, there is no scientific evidence

whatsoever to support this belief’); R2. at 655, 743.

However, there is no evidence that the magnitude of

electricity applied during a judicial electrocution necessarily

causes immediate brain death, such that pain and suffering

are not experienced. See Hillman, An Unnatural Way to Die,

supra, at 278; Ilgren Aff. 423; Hiliman Aff. 910; R2. at 677.

During a judicial electrocution it is likely that

the magnitude of current that reaches the deep recesses of

the brain where the centers of consciousness are located is

not sufficient to cause instantaneous unconsciousness.

See R2. at 385. Electricity tends to follow the path of least

resistance, see R3. at 485, and there are several layers of

highly resistant material between the electrode and the brain.

Specifically, between the head electrode and the brain,

resistance will be encountered in the skin, the tissue, and

the skull. The human skull is likely the most resistant

substance in the body, see John L. Hunt et al., The

Pathophysiology of Acute Electrical Injuries, 16 J. TRAUMA

335, 339 (1976) (“Bone has the greatest resistance to current

flow of any tissue in the body....”), and can effectively

insulate the brain from current, see V. Garcia-Sanchez & P.

Gomez Morell, Electric Burns: High- and Low-Tension

Injuries, 25 Burns 357, 358 (Dec. 1998); HARRISON’S

PRINCIPLES OF INTERNAL MEDICINE 859 (Eugene Braunwald et

al. eds., 11th ed. 1987) (noting that bone offers relatively

high resistance); Ilgren Aff. 915. Studies have shown that

10

the amount of electrical current that actually crosses the skull

is 1/20" of the initial current.? See Hillman Aff. 99; R2. at

395. The current that does ultimately penetrate the skull will

then encounter the highly conductive cerebral spinal fluid.

See Critchley, Electrical Injuries, supra, at 1002 (noting that

the best conductive material in the body is cerebral spinal

fluid); Garcia-Sanchez, supra, at 358; PRINCIPLES OF INTERNAL

MEDICINE, supra, at 859; R2. at 399. The presence of such

fluid will likely divert the current around the brain and into

the spinal canal. See R2. at 399. That significantly smaller

amounts of current reach the brain is supported by

observations that “[t]he burns appearing inside the scalp are

minute compared with those on the skin’s surface.” Hillman

Aff. 99. See also R2. at 922 (“[Medina’s] scalp exhibited

the central area of charring .. . but the bone itself was not

burned through. In fact, it was not even partially burned.”).

As a result, it is more likely than not that inmates are not

rendered immediately unconscious, see R2. at 674-76, 749,

and, in fact, consciousness is likely to last for a period of

time, see R2. at 438. Even Nikola Tesla, the inventor of

alternating current, believed that death by judicial

electrocution is not instantaneous, stating that alternating

current would spread through the body in a manner that could

preserve vital organs, “with the result the victim may retain

consciousness and experience great pain.” IAN Gray & Moira

STANLEY, A PUNISHMENT IN SEARCH OF A CRIME 32 (1989).

As no studies have ever measured the brain’s electrical

activity during an electrocution, see R2. at 677, accidental

electrocutions and lightning strikes provide the closest

9. The studies have measured movement of current from the

inside of the skull to the outside. See R3. at 447. However, there is

no reason to believe that the movement of current from the outside

of the skull to the inside would be different. See id.

il

analogue. Although loss of consciousness does occur after

many high-voltage electrical accidents, the medical and

scientific literature reports that loss of consciousness is by

no means a certainty. Various studies have shown that

anywhere from 40% to 55% of patients studied remained

conscious after high-voltage accidents with electricity

ranging from 3000 to 130,000 volts, a range far exceeding

the voltage used in a judicial electrocution. See Nisha

Chibber Chandra et al., Clinical Predictors of Myocardial

Damage After High Voltage Electrical Injury, 18 CRITICAL

Care Mep. 293, 295 (1990) (explaining that nine out of

thirteen patients remained conscious after contact with

voltage ranging from 3000 to 130,000 volts); Baiba J. Grube

et al., Neurologic Consequences of Electrical Burns, 30 J.

TRAUMA 254, 255 (Mar. 1990) (stating that 55% of patients

studied remained conscious after high-voltage accident);

Joseph Still et al., Electrocution Due to Contact of Industrial

Equipment with Power Lines, 23 Burns 573, 573 (1997)

(stating that seven patients survived and remained conscious

when industrial equipment they were touching contacted

high-voltage power lines).

If consciousness is retained for some period of time

during a judicial electrocution, the mechanisms of death in

such cases indicate that consciousness — and thus the

sensation of pain — can be more prolonged than is argued

by the procedure’s advocates. Asphyxiation and ventricular

fibrillation are believed to be the primary mechanisms of

death in a judicial electrocution. See Hillman Aff. 413

(‘Death results from the cessation of respiration and the heart

as well as a cessation of brain functioning.”); Hillman, The

Possible Pain Experienced, supra, at 748 (“Death from

electrocution could be due to asphyxia caused by paralysis

of respiration, and to ventricular fibrillation.”). Cf A. Sances,

12

Jr. et al., Electrical Injuries, 149 SuRGERY, GYNECOLOGY &

OssTETRICs 97, 99 (1979). Laryngeal asphyxia results when

the muscles of the larynx contract and close off the airway

to the lungs. See Ilgren Aff. 24. This mechanism of death

is similar to death by strangulation, with death ultimately

taking several minutes. See id. General asphyxia results when

the muscles of the chest contract and prevent the lungs from

being able to expand to take in air. See id. Once the oxygen

supply is cut off in this way, death may take up to several

minutes to occur. See id. Finally, death by ventricular

fibrillation results when the heart ceases functioning,'° see

id., and an individual can remain conscious for upwards of

twenty to thirty seconds after its onset, see Hillman, The

Possible Pain Experienced, supra, at 748 (“[S]everal seconds

or minutes could elapse during which the condemned person

could be conscious.” (citations omitted)); R2. at 96, 438.

10. It is important to note, though, that while electrical current

can fibrillate the heart and cease blood flow, high levels of electrical

current can also have the opposite effect. See Thomas N. James et

al., Cardiac Abnormalities Demonstrated Postmortem in Four Cases

of Accidental Electrocution and Their Potential Significance

Relative to Nonfatal Electrical Injuries of the Heart, 120 AMERICAN

Heart J. 143 (July 1990) (“Paradoxically, the effects of electrical

current upon the heart can be lifesaving as well as the cause of death,

and the difference in the end result depends upon relatively small

differences of circumstances.”). This is the theory behind an

emergency room defibrillator. If the heart were in fibrillation, then

the application of anywhere between 5 and 15 amps of current could

cause defibrillation and “restart” the heart with a normal heartbeat.

See R3. at 594. See also R3. at 681 (stating that there is an “upper

limit of vulnerability” whereby an electric shock exceeding a certain

threshold will not cause fibrillation). In fact, one scientist reports

that judicial electrocutions have shown that alternating current of 5

to 8 amps can pass through the body without causing permanent

arrest of the heart. See Bernard M. Patten, Lightning and Electrical

Injuries, 10 NEUROLOGY OF TRAUMA 1047, 1054 (Nov. 1992).

— ; ——

Th Aa ae i ESE oe eae

2h TRE ome

13

The evidence suggests that the contention that

unconsciousness is a/ways instantaneous when an inmate is

electrocuted is wrong. To being with as the State’s own expert

conceded below, consciousness itself can be difficult to

determine by mere observation. See R2. at 1045. This fact has

long been recognized. For example, when the trial court in

Fierro v. Gomez, 865 F. Supp. 1387 (N.D. Cal. 1994), aff'd, 77

F.3d 301 (9th Cir.), vacated, 519 U.S. 918 (1996), concluded

that execution by use of the gas chamber was cruel and unusual,

it commented extensively on difficulties encountered in the

observation of consciousness and pain in individuals. The court

stated that neither pain nor consciousness is easy to assess. See

id. at 1400. It further noted that even a physician could not be

certain that a person is unconscious “unless that person is

completely flaccid, with no body movements,” id., and that even

if one displayed those characteristics of unconsciousness, there

could still be a response to a painful stimulus, see id. at 1400

n.9. Even when a person is conscious, the court concluded, it

can be difficult to assess the presence and the extent of pain.

See id. at 1400. Thus, in a judicial eletrocution, while the

prisoner may appear unconscious because he may be paralyzed

by the current’s effects on the muscles and restrained by the

straps and mask, this appearance does not remove the risk that

he is conscious and sentient for some period of time. See

Hillman, The Possible Pain Experienced, supra, at 751;

Hillman, An Unnatural Way to Die, supra, at 278.

The conclusion that unconsciousness occurs

instantaneously depends upon the validity of the assumption

that the electrical current applied in a judicial electrocution

causes immediate and permanent depolarization of the brain,

which deprives the brain cells of the ability to return to their

polarized state, thereby ultimately leading to death.'’ While it

11. The brain consists of billions of nerve cells which have a

positive electrical charge on the outside, and a negative electrical

(Cont'd)

14

is true that intense and prolonged depolarization can cause

cell death, see R2. at 425, “[it is] extremely unlikely that

[the initial current surge in a judicial electrocution] would

permanently and instantly depolarize the brain,” R2. at 376.

See also R2. at 674 (“With a degree of medical certainty, I

do not believe the brain is instantly, simultaneously

depolarized as the current is applied.”). If the brain instantly

and permanently depolarized, then the State “should be able

to give the current for less than one second and be done with

it.” R2. at 710-11. However, Florida procedure calls for a

five-cycle method that can last for as long as two minutes.

See R1. V8. at 157. Such a procedure hardly seems consistent

with, and indeed contradicts, the assumption that the brain

is instantly, permanently, and fatally depolarized by the

initial application of electrical current.'”

(Cont'd)

charge on the inside. See R3. at 427. When the outside of the cell

becomes negatively charged, depolarization, a normal brain function

necessary for the perception of external stimuli, occurs. See R3. at

427; R2. at 658. After depolarization, the cell gradually returns to

its normal state of external positive charge and internal negative

charge (i.e., it becomes repolarized). Depolarization can be caused

by either the direct application of electricity to the brain, or by the

release of a chemical from peripheral nerves, like those in the hand,

when a sensation is encountered. See R3. at 427. In its normal

occurrence in daily life, the ultimate result of depolarization is the

firing of an impulse known as an action potential, which is necessary

to experience everyday sensations such as light, sound, and pain.

See R2. at 372.

12. The fact that some states have subjected inmates to a second

round of electric cycles when the first round did not cause death is

also evidence that there is no certainty that death is instantaneous.

See R2. at 745.

15

Despite an attempt by the State to control the path of current

in a Florida electrocution by placing electrodes on the head and

leg, is that the path of electrical current cannot be controlled

once it enters the body, and so a particular amount of electrical

current cannot be guaranteed to reach and incapacitate a

particular vital organ. See R2. at 558-60. According to the

inventor of alternating current, the result of a lack of control of

the current path when conducting a judicial electrocution is that

“(t]he alternating current used ... does not pass in a direct

course, despite all the precautions taken. The current flows along

a restricted path into the body and destroys all tissues confronted

in this path... . In the meantime the vital organs may be

preserved ....” NEGLEY K. TEETERS, HANG BY THE NECK 448

(1967) (quoting Nikola Tesla) (internal quotation marks

omitted).

One indication that the brain continues to function after

the application of electrical current is that the heart has been

shown to continue functioning. Like the brain, the heart

functions on the basis of electrical impulses. See James

et al., supra, at 148 (stating that the heart “has among its special

characteristic properties the production and distribution of

electrical currents”); R2. at 383. Though it is true that the heart

can beat despite a lack of brain function, several experts have

noted that the continued activity of the heart after the application

of the current in a judicial electrocution strongly suggests that

the brain could continue to function, given the extensive

protection provided to the brain by the skull and cerebral-spinal

fluid, and the lesser protection available to the heart. See R3. at

433-34. Because of the extensive protection available to the

brain by virtue of the skull, there is no reason to believe that the

brain receives more electrical current than the heart. See R3. at

434. According to one expert, “[i]t would be possible [to exhibit

an agonal pulse even though the brain has been totally destroyed]

16

...but...ifthat much current reaches the brain, there should

be sufficient current to reach the heart to cause fibrillation

of the heart or cardiac standstill. There’s an incompatibility

here which is not explained by the electrical engineers.” R2.

at 216. See also R2. at 383-84 (“If judicial execution does

not terminate the beating of the heart immediately or

throughout the minute of the current application, then there

is no reason to think that the same current will stop the

electric chemical activity of the brain which also relies on

impulse activity. ...”). Thus, the pulses palpated after the

electrocutions of Medina and Tafero, which indicate that their

hearts were still capable of electrical activity, suggest that

their brains may still have been functioning. See R3. at 433.

This, in turn, obviously suggests that consciousness persists

during a judicial electrocution.

Industrial accidents and lightning strikes provide

evidence that it cannot be concluded with scientific or

medical certainty that the brain is instantly and permanently

depolarized during a judicial electrocution. Such accidents

can involve voltages in excess of ten thousand volts. One

expert who treated such patients testified that their brains

and hearts were not instantly destroyed, though they did

sustain massive and severe burns. See R2. at 679. In addition,

the medical and scientific literature documents the survival

of high-voltage electrical shock victims. In one study of ten

patients who were either struck by lightning (which reaches

one million volts) or who received electric shocks ranging

from 16,000 to 60,000 volts, all the victims survived. See

J.P. Guinard et al., Myocardial Injury After Electrical Burns:

Short and Long Term Study, 21 SCAND. J. PLAST. RECONSTR.

SurG. 301, 302 (1987). Another study reports that 70% of

lightning strike victims survived, despite amperage ranging

from 25,000 to 500,000 amps and temperatures exceeding

5000 degrees Fahrenheit. See Bernard M. Patten, Lightning

17

and Electrical Injuries, 10 NEUROLOGY OF TRAUMA 1047, 1048

(Nov. 1992). Yet another study notes that less than 25% of

victims die from lightning strikes each year. See Theodore

Bernstein, Electrical Injury: Electrical Engineer's

Perspective and an Historical Review, ANNALS OF NEW YORK

ACADEMY OF SCIENCES, May 1994, at 1, 8. These examples

support a conclusion that brain function is not invariably

instantaneously destroyed by electrocution and that, to the

contrary, in some if not all cases brain function — and

therefore perhaps consciousness — also persists for some

period after the initial application of electricity.

Further, not only is it possible for people to remain

conscious during a judicial electrocution, it is also possible

that the perception of time during an electric shock is altered,

such that a few seconds feels like several minutes. See

HANDBOOK OF CLINICAL NEUROLOGY, supra, at 698 (“There

are numerous references in the literature to the apparent

slowing down of time under the influence of the [electrical]

current.”); MacDonald Critchley, Neurological Effects of

Lightning and of Electricity, Lancet, Jan. 13, 1934, at 68,

70 (explaining that “[a]s with most protracted painful

experiences, the sufferer usually feels that the passage of

time is inordinately slow, and electrical injuries supply one

of the most vivid examples of the prolongation of time”).

Furthermore, one must consider that “reaction times — which

include the time that motor signals take to go from the brain

to the periphery — are maximally up to 1 [second], whereas

the blood and oxygen supply last several seconds. Thus there

will always be a finite, if variable, number of seconds during

which a condemned person feels before he or she becomes

unconscious.” Hillman, The Possible Pain Experienced,

supra, at 750.

18

In sum, based on the scientific and medical evidence, a

substantial risk exists that the inmate will retain

consciousness for some period of time after the initial

application of electricity, during which time the inmate will

experience intense pain.

CONCLUSION

Based on the evidence discussed above, a substantial

risk exists that death and unconsciousness will not be

immediate when a judicial electrocution is performed, that

the inmate will retain consciousness for some period of time

and will experience for that period the intense pain caused

by exposure to a massive electrical charge. It is the amici

curiae’s position that this risk is unreasonable and

unacceptable and renders electrocution a brutal and inhumane

procedure that should be banned as unconstitutional by this

Court.

Respectfully submitted,

MARTIN J. NEWHOUSE

on Counsel of Record

( f/ CrysTAL D. TALLEY

ae KIMBERLY L. PEDERSEN

ELAINE J. GOLDENBERG

Ropes & GRAY

One International Place

Boston, Massachusetts 02110

(617) 951-7000

Attorneys for Amici Curiae

Physicians for Human Rights, et al.

Dated: December 20, 1999