Amicus Curiae Brief — Bryan v. Moore

' VIO Wout Ve ws ‘

; “- 20 1999

No. 99-6723

INTHE Péc 22 (994

Supreme Court of the Anited States

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ANTHONY BRADEN BRYAN,

Petitioner,

—_vV.—

MICHAEL MOORE, Secretary, Florida Department of Corrections,

Respondent.

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF FLORIDA

BRIEF AMICUS CURIAE OF THE LAW & HUMANITIES

INSTITUTE IN SUPPORT OF PETITIONER

Prof. Richard H. Weisberg Edward de Grazia

(On the Brief) (Counsel of Record)

Benjamin N. Cardozo School of Law The Law & Humanities Institute

55 Fifth Avenue 757 Third Avenue, 18th Floor

New York, New York 10003 New York, New York 10017

(212) 790-0299 (212) 790-0276

Prof. Austin Sarat

Department of Political Science

and Law, Jurisprudence

& Social Thought

Amherst College

Amherst, Massachusetts 01002

(413) 542-2308

TABLE OF CONTENTS

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1 RS RS DOES S EOS OED &. 2OeP Re SH

I. The Electric Chair: A Disillusioning History

Il. “Decency” and “Dignity”............................ 8

A. Electrified Pain: the Visible and the Invisible......... 9

WP SI ee a as Neer Se 13

Ill. The Legitimacy of Law and the Barbarity

of Electrocution

IV. When We are Made to See the Invisible:

Stories About Execution and Electrocution

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Ce i RA EE eta Be i. ed Behe eae dk) ak te

TABLE OF AUTHORITIES

Cases Page(s)

Buenoano v. State, 565 So.2d 309 (Sup. Ct. Fla. 1990)....... 4

Callins v Collins, 510 U.S. 1141 (1994). .............. 18, 19

Glass v. Louisiana, 471 U.S. 1080 (1985). ........... . 3, 6, 12

Gregg v. Georgia, 428 U.S. 153 (1976). -............2... 12

Hill v. Lockhart, 791 F. Supp. 1388

GABAA... BaP OURO onc cov ensandianaenuspus biases 17

Jones v. State, 701 So.2d 76 (Sup. Ct. Fla. 1997)...... 15, 16

Kemmiler, in Re, 136 U.S. 436 (1890). ................05- 16

LaGrand v. Stewart, 173 F.3d 1144 (9th Cir. 1999). .... 9, 10, 13

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947). . . .6

Provenzano v. Moore, No. 95,973 (Sup. Ct. Fla, 1999)... .. .17, 19

Trop v. Dulles, 356 U.S. 86 (1958).........cececeee ceeees 8

OTHER AUTHORITIES

Hugo Bedau, Death is Different (1987). ......... <tatae 8,9

Craig Brandon, The Electric Chair (1999)..........-.. 5, 6, 20

lil

Albert Camus, “Reflections on the Guillotine” (1957)

repr. in. London, The Law as Literature (1960)....... .27, 28

Russell F. Canan, “Burning at the Wire,”

in Facing the Death Penalty (1989)................. 6,7, 14

Robert Cover, “Violence and the Word,”

95 Yale L J. 1601:(1986)..............00..00000000.., 18

Deborah W. Denno, “Is Electrocution an

Unconstitutional Means of Execution?,”

35 William & Mary L. Rev. 551 ee. ee 10

“Are Executions Constitutional?”

82 Iowa L. Rev. 319 (1997)... 00... cece eee eee ee. 10

E.L. Doctorow, The Book of Daniel (1971)... 21, 22, 23, 24, 25

Theodore Dreiser, An American 7 ragedy (1925)...... 20, 21, 25

Lonny L. Hoffman, “The Madness of the Method,”

70 Texas L. Rev 1039 (1992)...............000000005. 5

Allen Huang, “Hanging, Cyanide Gas, and the

Evolving Standards of Decency: The Ninth

Circuit’s Misapplication of the Cruel and Unusual Clause

of the Eighth Amendment,” 74 Oregon L. Rev. 995 (1995)... .16

Alan Hyde, Bodies of Law (1997)................2.. 17, 18

Franz Kafka, In the Penal Colony (1914)............ 25, 26, 27

Michael Madow, “Forbidden Spectacle: Executions,

the Public, and the Press in 19th Century New York,”

43 Buffalo L. Rev. 461 (1995) ....................0. ba, iv

iV

Kent S. Miller and Betty Doris Miller, To Kill and

Be Killed: Case Studies from Florida’s Death

Be ree rey ree eyeing s 12, 13

NY Times, “Innocents on Death Row,” Editorial,

Fi, a Pe Pee ey TEEN na Tamer ©

Phillip R. Nugent, “Pulling the Plug on the Electric Chair:

The Unconstitutionality of Electrocution,”

2 William & Mary Bill Rts J. 185 (1993)............. panel

Michael L. Radelet, Post-Furman Botched

Executions, http://www.essential.org./dpic/

PR ties Dee au Pol oes wee ye ea tee 15, 16

_Ed., Facing the Death Penalty (1989).............. 7, 13, 14

Elaine Scarry, The Body in Pain (1985)................. 9,11

Tom Tyler, Why People Obey the Law (1990)......... 15, 16

Richard Wright, Native Son (1940)..............00-. 20, 21

CONSTITUTION

Lice SE I WE os coe cacnsvauladecsnanbaae’ passim

Supreme Court of the United States

No. 99-6723

ANTHONY BRADEN BRYAN,

Petitioners,

versus,

MICHAEL MOORE, Secretary,

Florida Department of Corrections,

Respondent.

BRIEF AMICUS CURIAE FOR THE LAW &

HUMANITIES INSTITUTE IN SUPPORT OF

PETITIONERS

INTEREST OF THE AMICUS CURIAE

The Law & Humanities Institute ("LHI") is a not-for-

profit foundation concerned with the various inter-relations

between law and literature. LHI believes that many complex

areas of development in the American legal system can be

illuminated by reference to non-legal sources that Clarify and

complement traditional doctrine.

LHI, in its 20 year existence, has monitored

developments in the difficult and always evolving area of Eighth

Amendment jurisprudence, specifically in the domain of Capital

punishment. LHI perceives the "cruel and unusual punishments"

clause -- on its terms -- to invite continuing judicial awareness of

norms of decency and dignity within the larger American society.

As the state of Florida completes its 75th year using the

electric chair to dispatch those convicted of Capital crimes and

2

sentenced to death, LHI recognizes the specific device of

electrocution as particularly challenging to the American sense

of decency and dignity at the turn of the millennium.

Some of the sources we cite in our Argument discuss the

Florida electric chair specifically; others also address

electrocution generally. LHI believes that, at its origins, people

of good will -- lawyers and non-lawyers alike -- had high hopes

for electrocution as an "advance" over existing and ancient

methods of capital punishment.

As amicus curiae will show, however, public opinion

quickly began to reflect empirical disappointment with the

electric chair. Even in times when Americans could support

capital punishment itself (and those times seem to run in cycles),

electrocution never sustained solid support as a humane

technique to complete the state's business in its most awesome

role -- the legalized executioner of a human being.

Amicus LHI differs from the parties in this proceeding

through its diverse use of source material regarding

electrocution. LHI strongly asserts that adjudicators exercising

the enormous power of life and death need to be informed of all

wise and compelling discussions of the electric chair. Only then

can the Supreme Court interpret under its own mandate of

"evolving standards of decency" the issue raised by this case.

Amicus has obtained and filed the written consents of the

parties to the filing of this brief pursuant to Rule 37(3)(a) of the

rules of this Court.

SUMMARY OF ARGUMENT

The Law & Humanities Institute argues that the state of

Florida violates the Eighth Amendment, as interpreted by this

Court, every time it pulls the switch to release electric charges

into the pinioned bodies of condemned individuals. Debate

within the Florida supreme court alone indicates increasing

distress among the state's judges at repetitive calls upon them to

3

sanction a method of death that has demonstrably breached even

the most dispassionate observer's sense of decency and dignity.

Part I of the brief summarizes the history of Florida's 75-

year experiment with electricity, embedding that discussion in

the 110-year use of the electric chair in this country. Amicus LHI

argues that -- from the origins of the electric chair -- scientists,

physicians, philosophers and story-tellers have increasingly

questioned the high hopes that greeted the first electrocution.

Much changed almost immediately after that event, when

William Kemmler's death did not produce the "clean" results

people of good will anticipated. From that moment on,

knowledgeable observers in many walks of life began to compare

electrocution unfavorably to the dominant mode of hanging it

was supposed to replace. Instead, authoritative observers -- from

actual physicians attending an execution in 1898 to Justice

Brennan opining in the 1985 case of Glass v. Louisiana -- have

compared electrocution to outmoded and uncivilized methods of

"torture," specifically to burning at the stake and drawing and

quartering.

The discussion in almost all appellate cases dealing with

capital punishment generally assumes that the condemned person

has acted violently upon at least one innocent other or -- in the

case of treason -- upon the people as a whole. Such crimes cannot

and should not be removed from the judicial mind as it assesses

electrocution and its effects. But all courts, and especially the

Supreme Court, must contemporaneously endeavor to trace the

evolving line of decent governmental behavior into the sinews

and the senses of even the condemned person. Adjudication in

this area necessarily involves the interpreter in the circuitry of

pain and the disfigurement of violent death.

Part II argues that this Court's standard of interpreting the

Eighth Amendment in capital punishment cases mandates close

scrutiny of the concept of "decency," and that such an analysis

directs the interpreter to the notion of human dignity. Dignity is

itself a multifaceted goal that, when it comes to extinguishing a

4

human life through legal means, requires minimizing the victim's

pain and his body's disfigurement.

Dignity also asks a good deal more of the state in

planning its modes of capital punishment. Governments, when

taking the lives of humian beings, represent their citizens and

must consequently act in a dignified manner. It is thus the dignity

of the citizens of the state of Florida, as much as it is the dignity

of the condemned individual, that must be respected under

"evolving standards of decency." The dignity of the state cannot

hide behind a method of killing whose only "virtue" is its relative

invisibility, invisible as it courses through its victim but never in

its disfiguring effects.

Part III argues, using a variety of judicial and academic

authorities, that this case raises issues fundamental to the

acceptance by the public of law’s legitimacy. Electrocution as

a means of capital punishment in the year 2000 is no longer

tolerable as a component of Eighth Amendment jurisprudence.

In the concluding Part IV, amicus LHI asks the Court to

consider as valuable source material on decency and dignity

several 20th century reflections on executions by essayists and

novelists. Amicus argues that, in deciding the issue now before

the Court, adjudicators need feel no dissonance between their

own frame of reference and that of other powerful indices of

evolving norms of civilized behavior.

Fatal currents set in motion by Florida's electric chair

must never explode again into the cells and sinews of a human

body.

5

ARGUMENT

I. The Electric Chair: A Disillusioning History

It is now exactly 75 years since the electric chair was

installed as the sole means of capital punishment in the State of

Florida. (Craig Brandon, The Electric Chair, (1999), p. 219). On

August 6, 1990, the use of the electric chair in the country more

generally “celebrated its 100th Anniversary” (Id., p. 253).

During the course of this long history, the Supreme Court of the

United States, as well as a variety of lower courts have

considered the constitutionality of the electric chair under the

“cruel and unusual punishments” provision of the Eighth

Amendment of the United States Constitution. At no time during

that period has any court ruled that the electric chair, despite

many malfunctions, violated that provision. But occasional

voices in this Court (both in majority and dissenting opinions),

as well as in the lower courts, have flagged the barbarity and the

inappropriateness of this particular method of capital

punishment. So have legal commentators. One of them,

Professor Lonny L. Hoffman, puts it this way:

Having abstained from considering the hard

questions relating to electrocution for so long,

courts bear the onus of re-examining the

constitutionality of the century-old method. The

judiciary cannot only pronounce sentence; it

must also monitor how the sentence of death is

carried out... It is a sobering reminder in this age

of weapons of mass destruction and killing that

how we exact the ultimate sanction of the law

matters. Not only for the prisoner, but for

ourselves as well. “The Madness of the

Method,” 70 Texas L. Rev. 1039, (1992), 1042.

6

Lawyers, law professors, and wise and eloquent

commentators from the wider range of American discourse have

almost continuously commented on the cruelty, if not the

unusualness, of the electric chair. In one of the most striking

recent statemei s, Justice William Brennan dissented to this

Court’s denial of certiorari in a case challenging the practice.

Justice Brennan, joined by Justice Marshall, amassed the

empirical evidence and opined that “it is difficult to imagine how

such procedures constitute anything less than ‘death by

installments’ -- a form of torture [that] would rival that of

burning at the stake,” Glass v. Louisiana, 471 U.S. 1080 at 1090

- 91 (1985) citing Louisiana ex rel. Francis v. Resweber, 329

U.S. 459, 476 (1947), (Burton J. dissenting).

Associations of prior barbaric forms of punishment with

electrocution did not originate in the Supreme Court of the

United States. The always uncertain performance of the electric

chair was both predicted and subsequently chronicled from the

period of the instrument’s first use in the New York execution of

William Kemmler in 1890. Many reasonable minds at the time

earnestly hoped that the electric chair would provide a less

painful, disfiguring, and extended form of capital punishment

than, for example, hanging. (Ihe Electric Chair, p. 49.)

However, it quickly became clear even to these individuals that

electrocution would never fulfill its humane potential. At best,

the chair provided an unpredictable form of death At worst, it

exposed the convicted individual to torture, extended pain, and

extreme disfigurement, as the electrocution of William Kemmler

itself proved. It was far from painless or instantaneous. “Some

witnesses indicated that electrocution appeared to be ‘far worse’

than hanging, and surmised that the ‘electrical experiment’

would never again be used as a form of capital punishment.”

(Phillip R. Nugent, “Pulling the Plug on the Electric Chair: The

Unconstitutionality of Electrocution,” 2 William & Mary Bill Rts

J. 185, 195 (1993) at p. 196.) “The New York Press stated that

the ‘age of burning at the stake is past; the age of burning at the

7

wire will pass also.”” ( Russell F. Canan, “Burning at the Wire”,

Radelet, ed., Facing the Death Penalty (1989), p. 67.) A

spokesman for the Buffalo District Attorney stated “‘there is no

question that unnecessary and revolting cruelty was inflicted

upon the unfortunate Kemmler . . . This man, it appears, was

made to suffer most horribly, and the first great experiment in

this matter could hardly be termed a success.” ( Nugent, supra at

p. 196.)

Only eight years after Kemmler’s execution, a physician

in New York state who had performed an autopsy on one of the

many condemned individuals who now routinely were being

electrocuted described the findings of his own autopsy as

follows:

“If the convict is dead, he will stay dead without

the autopsy. If he is alive then the autopsy is a

crime that outrages decency, a crime a thousand

times more horrible then the crime for which the

convict sacrifices his life... To be rendered

helpless by an electric shock and then

disemboweled by doctors before the body is cold

is the decree of our 2Cth-century courts... The

profession at large should protest vigorously

against performing the legitimate functions of

the hangman.” The Electric Chair, p. 220.

Dr. O’Nvill’s observations not only joined those of many

others who had witnessed the duration and the physical

mutilation’connected with the average electrocution, but his

reference to drawing and quartering joins the later thought of

Justice Brennan, namely that the electric chair in particular

harkens back to uncivilized modes of legal life-taking. Dr.

O’Neill gruesomely, but according to his own personal

experience, adds the observation that death sometimes simply

does not occur, no matter how many jolts of electricity are

8

injected into the body of the condemned. It seems to have been

the function of at least an occasional doctor -- during the autopsy

-- to administer a “coup de grace” to ensure the actual death of

the victim.

Observers of this means of execution outside of the

professions of law and medicine have raised their voice as well,

representing electrocution as less a new and humane technology

of death than an outgrowth of our own Anglo-American tradition

and its numerous, creative, and horrifying forms of dealing death

to the convicted and the unwanted.

Il. “Decency” and “Dignity”

In the case of Trop v. Dulles, 356 U.S. 86, 100 - 101

(1958), this Court established a constitutional standard that a

capital method of punishment must be consistent with “evolving

standards of decency that mark the progress of a maturing

society.” The Court asserted that the “basic concept underlying

the Eighth Amendment is nothing less than the dignity of man.”

The Eighth Amendment terms “cruel and unusual,” together with

Trop v. Dulles, virtually require a court of final jurisdiction in

capital punishment matters to look to all available sources of

wisdom about the state’s ultimate act, the taking of a human life.

As the Court said in Trop, the “scope [is] not static” but

constantly changing. A distinguished commentator on capital

punishment, Hugo Adam Bedau understands the Court to be

saying:

“Cruel and unusual punishment” is... not a

rigidly designated term, in the way it has béen

argued that names of naturally occurring species

(for example “tiger’’) or inert natural kinds (for

example, “diamond”) are. The sense of “cruel

and unusual punishment” has to be taken from

the properties of those punitive acts and practices

9

that have been judged to be morally

unacceptable in a particular historic time and

culture. Bedau, Death is Different ( 1987), p.

105.

And the United States Court of Appeals for the Ninth Circuit has

very recently seen this Court to require constant scrutiny of the

various methods states may try from time to time, a scrutiny that

mandates the widest possible survey of social commentary and

sources. See LaGrand v. Stewart, 173 F.3d 1144 (9th Cir. 1999).

The evolution of “decency” in our society, when applied

to the governmental act of execution, involves first and foremost

the Court’s own value of “dignity”. The issue, most cogently

stated, becomes “Is electrocution consonant with the goal of

dignity?” In answering this question, the Court must consider the

dignity both of the condemned person facing the electric chair

and the dignity of the citizens of the state of Florida, which has

consciously designated electrocution as its mode of Capital

punishment.

This Court’s emphasis on “decency”and “dignity”

mandates scrutiny of the possibility of prolonged pain, extreme

disfigurement, and the needless psychological and physical

torture connected to known defective methods of capital

punishment.

A. Electrified Pain: the Visibie and the Invisible

How are we to gauge pain? As is true of all trauma, pain

is exceptionally difficult to put into words: as Elaine Scarry puts

it, “Ordinarily there is no language for pain... [It] (more than any

other phenomenon) resists verbal objectivity.” (Scarry, The Body

in Pain (1985), p. 12.) It is especially important for judges to be

sensitive to the pain that even the most reviled of our fellow

human beings must endure through the conscious workings of

the state. No one else will speak the unspeakable. No judge can

10

be immune from the difficult and undesirable task of achieving

a form of empathy with the pain experienced even by those who

may have caused extreme pain to others. But this is the price of

an increasingly civilized scrutiny of our governmental practices.

If the Ninth Circuit in La Grand has judged lethal gas to cause

unconstitutional levels of pain, so doctors and others have

observed what appears to be extreme pain, expressed through the

body movements of the deliberately and forcibly muted victim

of electrocution.

Law professor Deborah W. Denno, who has reported

considerable medical data about electrified pain (see e.g.,

Denno, “Is Electrocution an Unconstitutional Method of

Execution? The Engineering of Death Over the Century,” 35

William & Mary L. Rev. 551 (1994)), has found the method

constitutionally wanting. Thus, “the most recent research and

eyewitness observations suggest that a wide range of factors

associated with an electrocution, such as severe burning, boiling

body fluids, asphyxiation, and cardiac arrest can cause extreme

pain when unconsciousness is not instantaneous. . . [E]ven a

routine electrocution can cause torture and a lingering death

because of human error, a lack of experience and knowledge, or

machine malfunction. . . [T]he human skull can insulate the brain

from an electric current, thereby preventing the current from

penetrating the brain to cause unconsciousness or to destroy

nerve activity. Because the electrit current stimulates each

muscle to full contraction, the prisoner cannot move even when

the current is momentarily turned off, ‘a physiological effect that,

in itself, is enormously painful and further prevents the prisoner

from crying out or providing other outward signs of other

massively painful effects of electrocution such as third degree

burns and an enormous heating up of bodily fluids throughout the

body.’” Denno, “Are Executions Constitutional?” 82 Iowa L.

Rev. 319, 356 - 57 (1997), citing medical testimony (id., at 356

notes 220 - 28).

1]

Yet, it is easy to forget -- even in a moment of judgment

about the Eighth Amendment -- the temporal experience of pain

endured by a convicted capital criminal. As Scarry puts it more

generally, “the relative ease or difficulty with which any given

phenomenon can be verbally represented also influences the ease

or difficulty with which that phenomenon comes to be politically

represented... But the sentient fact of physical pain is not simply

somewhat less easy to express than some [other] event,

somewhat less visible... but so nearly impossible to express, so

flatly invisible that . . . even where it is virtually the only content

in a given environment, it will be possible to describe the

environment as though pain were not there.” (The Body in Pain,

supra, p. 12.)

In the case of electrocution, the natural propensity to

ignore or to devalue someone else’s pain may have helped

otherwise civilized observers to tolerate it for 110 years. Even

if a body twisting next to a visible rope as it chokes to death

cannot be ignored, electrocution -- unlike every other means of

capital punishment -- is invisible to the non-victim as it courses

“cleanly” through the human body. Therefore, it is

understandable that a court might be distracted from thinking of

electrocution’s pain and instead wish to emphasize society’s

rationalized termination of the life of a murderer, one who has

after all inflicted pain on an innocent victim.

Invisible and apparently subcutaneous, electrical death

greatly appealed to even very enlightened jurists and scientists of

the late 19th century. But the earliest executions disabused these

optimists of their hopes. Even at its best, the device of the

electric chair finally revealed its particular form of violence.

When the chair was defective, or the procedure was “botched,”

electricity proved to be a hideous means of death, so that many

of the condemned required three, four, and sometimes five jolts

of electricity, inflicting increasing burns to the skin, with fire

leaping from the scalp, and the fingernails drilled through hands

and other limbs in pain.

12

The Eighth Amendment, as interpreted by this Court,

requires attention to what is usually suppressed and missing from

the discourse about capital punishment -- the pain of others, the

pain of the least among us. Recent forensic science has brought

about the release of 79 men and women from death row since

1973 (NY_Times editorial May 23, 1999), but even if most

condemned people are guilty, they deserve the dignity and the

decency of a process of death that minimizes the probability of

pain.

Looking at the constitutional standard of evolving

notions of human decency, therefore, courts must condemn

electrocution on grounds connected to pain. Justice Brennan,

joined by Justice Marshall in their dissent to the denial of

certiorari in Glass, quoted Justices Stewart, Powell, and Stevens,

to the effect that “first and foremost, the Eighth Amendment

prohibits ‘the unnecessary and wanton infliction of pain.’” Glass,

citing Gregg v. Georgia, 428 U.S. 153, 173 (1976). Of

electrocution it has been said by the writers of case studies from

Florida’s death row as well as experiences they observed in other

states:

Electrocution may involve excruciating pain as

well as physical violence, mutilation of the body,

burning of the flesh, etc. Several recent

executions required considerable time. In 1985

it took an executioner in Indiana 20 minutes and

five surges of electricity to kill William

Vandiver, who had refused to appeal his death

sentence, saying only that he wished to die in

peace. Alabama’s 1983 execution of John Evans

necessitated the better part of an hour, numerous

jolts of electricity, with an electrode on the leg

exploding and being destroyed in smoke and fire.

Observers described it as torturing him to death.

Kent S. Miller and Betty Doris Miller, To Kill

13

and Be Killed: Case Studies from Florida’s

Death Row , (1989), pp. 57 - 58.

A mode of punishment that is incapable of providing requisite

levels of dignity as to its infliction of pain must inescapably

challenge evolving notions of decency, thereby rendering that

mode of capital punishment archaic and constitutionally infirm.

B. Disfigurement

Co-equal with pain is a concern for disfigurement.

Indeed, the move from outmoded means of execution -- such as

stoning, garreting, and flaying -- had as much to do with

society’s desire to resist the victim’s disfigurement as with the

minimization of his pain. England and America, too, had

consistently resisted the relatively painless device of the

guillotine because of the inevitable marring of the human body

involved in that technique. (See, e.g., Michael Madow,

“Forbidden Spectacle: Executions, the Public, anid the Press in

19th Century New York,” 43 Buffalo L. Rev. 461 (1995) at 535.)

But electrocution inevitably inflicts a terrible disfigurement on

its victim.

The deformations and disfigurements caused by

electrocution, perhaps even more so than by gas, LaGrand, supra,

evoke outmoded forms of capital punishment and torture such as

burning at the stake. Electrocution desecrates the human body,

for when a body is electrocuted

2000 volts of electricity shoot through a human

being and make his body leap and cringe. The

condemned’s eyeballs can literally pop out of the

socket. The face as well as the fingers, legs and

toes become hideously contorted and disfigured.

It is not unusual for the prisoner to defecate and

urinate during the surge of current. The

14

vomiting of blood and saliva is common. The

prisoner actually smolders under the force of the

current, and the temperature of the brain

approaches the boiling point of water. Doctors

who have performed autopsies of electrocuted

men report that the liver is so hot that it cannot

be touched by a human hand. (Radelet, ed.,

Facing the Death Penalty, pp. 67 - 68.)

In 1990, the Florida electric chair malfunctioned causing

six inch flames to erupt from the headpiece supplying life-

depleting electricity to the body of Jesse Joseph Tafero.

(Michael L. Radelet, “Post-Furman Botched Executions,”

http://www.essential.org./dpic/botched.html.) Throughout the

decade of the 90's, Florida continued to experience a virtually

inevitable series of undignified, inhumane, and indecent

electrocutions. The increasingly obvious barbarity of this

particular method of execution contributed to the vast reduction

during this period in the number of states permitting, much less

dictating electrocution as their means of capital punishment. “By

the mid-1990's two thirds of all executions that had taken place

since the death penalty was restored took place in only five

states: Texas, Florida, Virginia, Louisiana, and Georgia... All the

states in the east and west that once used electric chairs have shut

them down for good.” (The Electric Chair, pp. 254-255.) Yet

Florida proceeded throughout the decade of the 90's to employ a

means of execution whose specific features could now clearly be

defined in terms of pain, torture, disfigurement, and indignity.

After the horrifying electrocution of Tafero in 1990, the

Florida Department of Corrections investigated what went wrong

and found that a synthetic sponge was used in the headpiece of

the execution apparatus. Despite three strong dissenting opinions

in the case of a subsequent condemned man on Florida’s death

row, opinions that detailed in the Florida Reporter the grizzly

effects of the chair on Mr. Tafero’s entire body, Buenoano v.

15

State, 565 So.2d 309, 310 - 11 (Fla. 1990), no hiatus was

imposed on Florida’s electrocutions. On March 25, 1997,

Florida executed Pedro Medina. As was true of many

electrocutions in the state over its 75 - year history, so here

numerous observers attested to the hideousness of the procedure.

“With the first jolt of electricity, blue and orange

flames sparked from the mask covering Medina’s

face. Flames up to a foot long shot out from the

right side of Medina’s head for six to ten seconds.”

(www.essential.org/dpic/botched.html, supra.)

The pathologist who conducted the autopsy found that

1. The head had a “burn ring” on the crown of

the head that was common ifi executions by

judicial electrocution.

2. Within the “burn ring” there was a third

degree burn on the crown of the head, with

deposits of charred material...

3. There was a first degree burn of the upper

front ef the face and head, caused by scalding

steam. (Jones v. State, 701 So2d 76 (Fla. 1997),

Shaw, J., dissenting, pp. 86 - 87.)

A society that tolerates such disfigurement cannot be

described as civilized.

| lif. The Legitimacy of Law and the Barbarity of

Electrocution

The legitimacy of law depends, in part, on the widely

shared sense that how legal officials act and how they do what

they do is both legally appropriate and fair. (See Tom Tyler,

Why People Obey the Law (1990).) Tyler suggests that “People

16

are more responsive to normative judgments and appeals than is

typically recognized by legal authorities” (p. 178). While Tyler

did not study executions and people’s reactions to them, his

findings have clear and important implications for the practice of

electrocution.

However full of optimism was the early thinking about

electrocution as a technology for taking life, today it is

outmoded. It is no longer the technology best able to minimize

the risk that execution will impose unnecessary pain or

disfigurement and thus be incompatible with evolving standards

of decency. As the Supreme Court put it, in order to be

constitutional, methods of execution must not impose “something

more than the mere extinguishment of life.” (In re Kemmler, 136

U.S. 436 (1890) at p. 447). Because electrocution today involves

more than “the mere extinguishment of life” it is no longer able

to satisfy the normative basis of legal legitimacy.

“When our government takes the life of one of its

citizens, constitutional doctrine correctly commits it to do so in

as humane a fashion as is possible. Electrocution is no longer a

humane method of execution. From hanging to electrocution,

from electrocution to lethal gas, from electricity and gas to lethal

injection, execution has moved, though not uniformly, from one

technology to another.” (Allen Huang, “Hanging, Cyanide Gas,

and the Evolving Standards of Decency: The Ninth Circuit’s

Misapplication of the Cruel and Unusual Clause of the Eighth

Amendment,” 74 Oregon L. Rev. 995 (1995).)

The development of technology regularly renders

previously acceptable methods of execution barbaric, or simply

archaic. Thus, as one judge recently said about death by

electrocution, “Execution by electrocution is a spectacle whose

time has passed -- like the guillotine or public stoning or burning

at the stake....Florida’s electric chair, by its own track record, has

proven to be a dinosaur more befitting the laboratory of Baron

Frankenstein than the death chamber of Florida State Prison.”

(Jones v. State, supra, Shaw. J., dissenting, p. 87). As a Federal

17

District Court in Arkansas recently put it in upholding the

constitutionality of lethal injection, “There is general agreement

that lethal injection is at present the most humane type of

execution available and is far preferable to the sometimes

barbaric means employed in the past.” (Hill v. Lockhart, 791 F.

Supp. 1388, 1394 (1992).) As Judge Anstead stated in

adjudicating the case below on whose authority the present

Petitioner stands ready for electrocution, “[j]ust as electrocution

may have been originally evaluated in comparison with hanging,

we know today that the overwhelming majority of death penalty

jurisdictions have long since rejected use of the electric chair and

have turned to lethal injection as a more humane punishment.”

(Provenzano v. Moore, No. 95,973 (Sup. Ct. Fla, 1999), Anstead,

J., dissenting, pp. 70-71.)

Where the courts fail to see in the Eighth Amendment the

requirement that the technology used by the state to take life

must keep pace with the ability to execute in the least painful and

disfiguring ways possible, they threaten to undermine one pillar

of legal legitimacy. Whereas at other times and in other

countries the technologies of execution deployed by the

government were valued precisely because of their gruesome

effects on the body of the condemned, today under the guidance

of the Eighth Amendment “executions. . . [have been]

progressively stripped of their ritualistic and religious aspects .

. . [A]s Americans developed a keen dread of physical pain,

medical professionals teamed wp with...engineers to devise a

purportedly ‘painless’ method of administering the death penalty.

. .. The condemned man. . . . had now become simply the object

of medico-bureaucratic technique -- his body read closely for

signs of pain. . . .The overriding aim of the state functionaries

charged with conducting executions nowadays is to ‘get the man

dead’ as quickly, uneventfully, impersonally, and painlessly as

nature and science permit.” (Michael Madow, “Forbidden

Spectacle”, 43 Buffalo L. Rev. supra, p. 469.)

18

Succeeding in this aim is crucial in terms of its impact on

the legitimacy of law. At least one scholar argues that the

requirement that execution be painless “follows a common

pattern in which the humanistic, sentimentalized body in pain

emerges as a site of empathy and identification” in the 19th and

20th centuries. Alan Hyde, Bodies of Law (1997), p. 192.

Sentimentalizing the body of the condemned establishes, Hyde

rightly notes, a bridge between the criminal and the public. The

criminal, no matter how horrific his deeds, is like us in his body’s

“amenability to feeling.” (Id., p. 193.) The concern that

punishment not inflict physical pain or excessive disfigurement

explains the fact that “electrocution, gas chambers, lethal

injections are each introduced with tremendous fanfare as a

painless form of death, until each is revealed to promote its own

kind of suffering on the way to death.” (Id.) |

When fulfilling their responsibility to adjudicate capital

punishment disputes under the Eighth Amendment, this Court

has recognized its responsibility to apply the norms of

contemporary American society to “evolving standards of

decency.” | Understanding that, in such cases, “legal

interpretation takes place in a field of pain and death” (Robert

Cover, “Violence and the Word,” 95 Yale L. J. 1601 (1986)),

members of this Court have found common ground in linking

Eighth Amendment adjudication to an ability to weigh one kind

of death against another.

This commonality in Eighth Amendment norms was put

vividly on display in Justice Scalia’s response to Justice

Blackmun’s dissent from a denial of certiorari in Callins v

Collins, 510 U.S. 1141 (1994). In that dissent, Justice Blackmun

announced that he no longer would “tinker with the machinery

of death” (Id. at p. 1145) and that he would, as a result, vote

against the death penalty in all subsequent cases. Justice Scalia

agreed that Justice Blackmun described “with poignancy the

death of a convicted murderer by lethal injection” (Id., at p.

1142) but opined that compared with “the murders that regularly

19

come before us -- the murder of a man ripped by a bullet

suddenly and unexpectedly, with no opportunity to prepare

himself and his affairs, and left to bleed to death on the floor of

a tavern, ” death by lethal injection “looks pretty desirable next

to that” (Id.) “How enviable,” Justice Scalia continued, “a quiet

death by lethal injection compared with that!” (Id. at p. 1143.)

Death by electrocution in the state of Florida is more

comparable to violent, unpredictable murder than to any “quiet

death.” As Judge Shaw observed, “The color photos of Davis

depict a man who -- for all appearances -- was brutally tortured

to death by the citizens of Florida... Each botched execution

cast(s) the entire criminal justice system of this state -- including

the courts -- in ignominy.” (Provenzano, supra, Shaw, J. ,

dissenting, p. 65.) Execution, guided by the restraining hand of

law, should be rational, purposive, and proportional; the violence

to which it responds is, in contrast, often irrational, anomic,

excessive. In the face of scientific “progress” the Eighth

Amendment can no longer condone the continuing use of archaic

technologies in executions and still retain the dignity and respect

of citizens.

IV. When We are Made to See the Invisible:

Stories About Execution and Electrocution

As this brief discussed in Part II, supra, electricity

provides a deceptively invisible force of death. The current flows

under the condemned person's flesh. Comforting to even the least

retributive of onlookers, subcutaneous annihilation conceals

more than it reveals. Thus, even though so many "botches"

finally expose the hideous effects of the electric chair on the

human body, there remains a haven of invisibility that protects

the onlooker from the full experience of another's violent death.

Added to this is the faulty assumption that pain is not occurring

because it, too, lies beneath the supposedly unconscious

distortions of the electrified brain and body.

20

Where appearances deceive, story-tellers reveal. Just as

‘ the "fictions of the law" permit legal resolution to occur in many

cases, so fiction about the law helps adjudicators to fathom the

phrase "cruel and unusual punishment" -- even where positivistic

and empirical experience provides an unacceptable if quite

narrow escape hatch from reality.

A. American Novelists on Electrocution

On March 30, 1908 New York State electrocuted Chester

Gillette for murdering Grace Brown, his pregnant girl-friend.

The Electric Chair, p. 216. Some years later, the great American

novelist Theodore Dreiser translated the story of Gillette and

Brown into one cf our century’s classics, An American Tragedy

(1925). Dreiser's character Clyde Griffiths, a social climber

modeled on Gillette, dies in the electric chair, which is depicted

three times in the novel doing its lightbulb - dimming, dreadful,

inhuman work. Dreiser set in motion a century-long tradition in

American letters of bringing readers face to face with electrical

death.

Richard Wright, in his 1940 novel_Native Son, also

depicts a full capital criminal proceeding that ends with

electrocution. The state is Illinois, the charge is murder, and the

accused is Bigger Thomas. Bigger, who is black, has killed a

white woman. It is quite unclear that he has acted with pre-

meditation.

Yet the grand jury indicts Bigger for capital murder. If

convicted and sentenced to the extreme penalty under the charge,

Bigger will be electrocuted. As he leaves the court house after

being indicted,

A huge throng of people covered the pavement.

The wind blew hard. Out of the shrill pitch of

shouts and screams he caught a few distinct

words:

21

b>]

“... turn ‘im loose... .’

“, .. give ‘im what he gave that girl... .”

“,.. let us take care of ‘im... .”

“. . . burn that black ape. . . .” (Wright, Native

Son, p. 309)

Bigger, who is represented passionately if perhaps

injudiciously by the lawyer Max, is convicted and doomed to

electrocution. Richard Wright spares his reader too much detail

relating to Bigger’s execution, but the means of punishment

decidedly interweaves with the larger subject of injustice in the

novel.

Three decades later E. L. Doctorow described what the

public, and even many experts, always wanted to believe about

electrocutions. In his novel, The Book of Daniel, Doctorow

points to the misconception that “it’s very painless, it’s very fast

and it doesn’t hurt.” The Book of Daniel (1971), p. 243.

However, Doctorow later goes cn to give what proved to be the

more accurate description, that electrocution is not painless, and

neither is it fast, and neither will the condemned necessarily be

saved from repetitive attempts, because often the first jolts

simply do not suffice:

The Warden was highly agitated... The

executioner went back behind the wall, and again

received a signal and again turned on the current.

Later he said that the first “dose” had not been

enough to kill...” Id, p. 315.

Like Dreiser, Doctorow was imaginatively recreating an

actual execution. One of Dreiser’s convicts needed three jolts,

separated over 90 seconds. An American Tragedy, p. 773. In the

case represented by Doctorow, it took five separate jolts of

electricity to kill the convict.

22

Doctorow's depiction of electrocution gains particular

force because the narrator of The Book of Daniel is the son of not

one, but two condemned criminals. This perspective humanizes

and personalizes the fate even of Julius and Ethel Rosenberg,

whom the federal courts had convicted of espionage and

sentenced to die in New York's electric chair.

The boy recounts his parents’ executions:

My father's hands were raised, and separated,

and his arms strapped at the wrists to the arms of

the chair. The arms of the electric chair are

wood. The frame is wood, although a metal

brace rises from the back of the chair and the

chair is bolted to the concrete floor with metal

braces. His ankles were strapped to the chair.

The chair straps are leather. A strap was tied

across his lap, another across his chest, and

another, like a philactery, around his head. A

guard geniiy removed his eyeglasses, folded

them and put them aside. A guard came over,

dipped his fingers into-a jar, and with a circular

motion rubbed an adhesive and conduction paste

on the shaved place on my father's head, and

then kneeled down and did the same for the place

‘on his cap that had been shaved. Then the

electrodes were fixed in place.

4

Electricity flows in circuits. If the circuit is open

or incomplete, electricity cannot flow. In

electrocution the circuit is closed or completed

by the human body. My father's lips were sucked

up between his teeth as the hood came down

over his face, every last tremor of his energy

gathered in supreme effort not to cry out. The

hood is black leather and is offered in respect for

23

the right to privacy at the moment of death.

However, it is also possible that the hood is

placed on the head to spare the witnesses the

effect to the musculature and coloration of the

face, and the effect to the organs of the face, the

tongue, the eyes, of two thousand five hundred

volts of electricity. My father's hands gripped the

wooden chair-arms till it seemed they could

Squeeze them to sawdust. The chair would kill

him but at this moment it was his only support._

The executioner took his place behind a

protective wall in a kind of cove. On the wall in

this cove was a large handled forklike switch.

The switch is thrown from an up position to a

down position. The executioner looked through

a glass panel, and observed the warden observing

my father. Waiting a moment too long the

warden turned to the glass panel and nodded.

The executioner threw the switch. My father

smashed into his straps as if hit by a train. He

snapped back and forth, cracking like a whip.

The leather straps groaned and creaked. Smoke

rose from my father's head. A hideous smell

compounded of burning flesh, excrement and

urine filled the death chamber. Most of the

witnesses had turned away. A pool of urine

collected on the cement floor under the chair. \

When the current was turned off, my father's

rigid body suddenly slunk in the chair, and it

perhaps occurred to the witnesses that what they

had taken for the shuddering spasming

movements of his life for God knows how many

seconds was instead a portrait of electric current,

24

normally invisible, moving through a field of

resistance. (Id., pp. 313-14.)

Everything real about electrocution -- including its

violence and also its deceptive invisibility -- emerges from this

fictionalized account, which continues with the boy's description

of the electrocution of his mother:

My mother turned her back to the chair,

disdaining any helping hand. She hugged the

matron who had guarded her alone in the

woman's death cell block for two years. They

had become dear friends. The matron wept and

ran out of the chamber. My mother, still with her

peculiar smile, sat down in the electric chair and

observed the strapping in of herself like a

passenger in a plane getting ready for a journey.

When the hood went over her eyes they were

open. When the switch was thrown she went into

the same buzzing spluttering arc dance. The

current was turned off. The doctor came over to

the slumped body and listened for a heartbeat

with his stethoscope. He — expressed

consternation. The electrocutioner came out of

his cove and they conferred. The warden was

highly agitated. The three reporters

communicated in urgent whispers. The

executioner went back behind the wall, and again

received a signal, and again turned on the

current. Later he said the first "dose" had not

been enough to kill my mother Rochelle

Isaacson. (Id., pp. 314-15.)

This narrative defamiliarizes an assessment of

electrocution by placing the account in the mouth of one who has

25

been orphaned by his own government. Yet Daniel’s

uncompromisingly accurate account of his parents’ deaths does

not impose blame on anyone. The guards are gentle, the warden

and the doctors seem concerned about the way the electric chair

is functioning.

In Doctorow’s depiction, it is as though the means of

legalized death had progressed beyond the control of any human

agent. (And had not Dreiser seen the “death house” itself as “one

of those crass erections and maintenances of human

-insensitiveness and stupidity principally for which no one

primarily was really responsible?” (An American Tragedy, p.

758.)

This Court, however, with such descriptions legitimately

on the record, cannot delegate or defer responsibility.

Thankfully, as the century of American literary interest in

electrocution wanes, this Court has the opportunity to recapture

civilized control over a mechanism that has run amok.

B. Kafka and Camus on the Essence of Execution

Like the Americans, but even earlier, Europe’s writers

perceived the mechanisms of legalistic death to have overtaken

the common humanity of executioner and executed alike. In

1914, Franz Kafka wrote his classic story, In the Penal Colony,

a graphic description of the effects of capital punishment on the

body of the condemned individual. Almost a quarter-century

after New York's first electrocution, and ten years prior to

Florida's initiation into electric death, Kafka was describing an

eerily similar death, but without the shield of electricity's

subcutaneous deviousness:

"It's a remarkable piece of apparatus," said the officer to

the explorer [who] seemed to have accepted merely out

of politeness the Commandant's invitation to witness the

execution of a soldier condemned to death for

26

disobedience and insulting behavior to a superior. Nor

did the colony itself betray much interest in this

execution. . . . [T]here was no one present except the

officer, the explorer, the condemned man, who was a

stupid-looking, wide-mouthed creature with bewildered

hair and face, and the soldier who held the heavy chain

controlling the small chains locked on the prisoner’s

ankles, wrists and neck, chains which were themselves

attached to each other by communicating links.

Kafka's description of the machinery of death continues its

uncanny evocation of both the process of strapping someone to

the electric chair and of electricity itself -- but it is electricity

rendered visible. The "apparatus" -- as shamefully flawed as

Florida's chair -- runs on "an electric battery". While Kafka

declines specifically to represent an electric chair, the following

account, virtually from start to finish, provides a ruthlessly

honest foreshadowing of "cruel and unusual" electrocutions:

"Needles are set in like the teeth of a harrow and the

whole thing works something like a harrow, although its

action is limited to one place. . . . On the Bed here the

condemned man is laid -- . . . One of the cog wheels in

the Designer is badly worn; it creaks a lot when it's

working; you can hardly hear yourself speak; spare parts,

unfortunately, are difficult to get here. . . . On this cotton

wool the condemned man is laid, face down, quite naked,

of course; here are straps for the hands, here for the feet,

and here for the neck to bind him fast. Here . . . is this

little gag of felt, which can be easily regulated to go

straight into his mouth. It is meant to keep him from

screaming and biting his tongue. Of course the man is

forced to take the felt into his mouth, or otherwise his

neck would be broken by the strap. . . . As soon as the

man is strapped down, the bed is set in motion. It quivers

27

in minute, very rapid vibrations, both from side to side

and up and down. ... The movements are all precisely

calculated.”

At the moment of death, the needles puncture the condemned

person's flesh. Although "it was working so silently, the machine

simply escaped one's attention,” the "badly worn" parts of the

instrument malfunction and finally call attention to what would

otherwise seem tolerable. Eerily evoking Florida's electric chair.

the always prophetic Kafka recounts the horrifying end of the

prisoner's life:

... [T]he bed was not turning the body over but

only bringing it up quivering against the needles.

The explorer wanted to do something, if

possible, to bring the whole machine to a

standstill, for this was no exquisite torture such

as the officer desired, this was plain raurder. . . .

[T]he harrow rose with the body on it and moved

to the side. . .. Blood was flowing in a hundred

streams, not mingled with water, the water jets

too had failed to function. And now the last

action failed to fulfill itself. . . .

__ Kafka and other writers refuse to abstract the condemned

person from the pre-ordained death that works zpon him. Story-

tellers also decline to preserve the shadows that often fall on

capital punishment. So Albert Camus, in "Reflections on the

Guillotine" (1957), refuses to let "our condemned criminals die

by rote in the name of a theory in which their executioners no

longer believe." He goes on:

When the Nazis staged public executions of

hostages in Poland, they first gagged their

prisoners with rags soaked in plaster so they

28

could not cry out some final word of liberty or

rebellion. It may seem an effrontery to compare

the fate of these innocent victims with that of our

condemned criminals, but apart from the fact that

it is not only criminals who are guillotined in

France, the method is the same: we gag our

guilty with a stuffing of words, though we cannot

justly affirm the legitimacy of their punishment

unless we have first considered its reality.

Instead of saying, as we always have, that the

death penalty is first of all a necessity, and

afterwards that it is not advisable to talk about it,

we should first speak of what the death penalty

really is, and only then decide if, being what it is,

it is necessary. (Emphasis in original.)

Electrocution -- "being what it is" -- will not survive as

a means of execution one second beyond considered reflection

on its real nature. So, a generation after Camus's essay, France

in 1981 did away with the guillotine. That decision, and France's

abolition of all means of capital punishment, were affirmed by

their high constitutional court in 1985, relying in part on Protocol

6 of the European Convention on Human Rights. Similarly, New

York and Illinois long ago rejected the electric chair.

But this Court finds itself still in the business of micro-

managing the electrical instrumentality of death. In the name of

the dignity of the condemned men and women on Florida’s death

row, in the name of the dignity of the citizens of the states that

still use electrocution, we beg the Court to end this barbarism.

29

CONCLUSION

‘che Eighth Amendment’s prohibition upon “cruel and

unusual punishments,” as interpreted by this Court and applied

to the best current wisdom about electrocution, mandates the

finding that Florida’s electric chair is an unconstitutionally

undignified means of capital punishment.

Respectfully submitted,

Edward de Grazia

(Counsel of Record)

i The Law & Humanities Institute

757 Third Avenue, 18th floor

New York, NY 10017

(212) 790-0276

Richard Weisberg

(On the Brief)

Benjamin N. Cardozo

School of Law

55 Fifth Avenue

New York, NY 10003

(212) 790-0299

Austin Sarat

Department of Political Science and

Law, Jurisprudence Social Thought

Amherst College

Amherst, MA 01002

(413) 542-2308