# Amicus Curiae Brief — Bryan v. Moore > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0959%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2000 - **Citation:** 528 U.S. 1133 ## Text ' VIO Wout Ve ws ‘ ; “- 20 1999 No. 99-6723 INTHE Péc 22 (994 Supreme Court of the Anited States o> 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 ele Re ee ee ee a ie eae ee ee he ee ee ee a a a a ae 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 G28 68 €¢€68 6d & 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). ......... ] “... 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0959%3A12. Public record. Not legal advice.