(Cite as: 1999 WL 756012 (Fla.))
Thomas H.
PROVENZANO, Petitioner,
v.
Michael W.
MOORE, Respondent.
No. 95973.
Supreme
Court of Florida.
Sept. 24,
1999.
Petition
for writ of habeas corpus, petition to invoke the Supreme Court's "all writs" jurisdiction, and a
petition for extraordinary relief were filed at a time when petitioner was
under a warrant of death. The Supreme Court entered a stay of execution and
directed the Circuit Court to hold an evidentiary hearing regarding the
functioning of the electric chair. The Circuit Court concluded that the
electric chair does not constitute cruel or unusual punishment. Petitioner
appealed. The Supreme Court held that: (1) electric chair does not constitute
cruel or unusual punishment, and (2) state's current use of electrocution as
its sole method of execution does not violate Eighth Amendment.
Affirmed.
Harding,
C.J., filed a specially concurring opinion in which Lewis, J., concurred.
Wells, J.,
filed a concurring opinion in which Quince, J., concurred.
Shaw, J.,
filed a dissenting opinion in which Anstead, J., concurred.
Anstead,
J., filed a dissenting opinion in which Shaw, J., concurred.
Pariente,
J., filed a dissenting opinion in which Anstead, J., concurred.
Michael P. Reiter, Chief Assistant CCRC, and Mark
S. Gruber, Assistant CCRC, Capital Collateral Regional Counsel‑‑Middle
Region, Tampa, Florida; and Martin J. McClain, Special Assistant CCRC,
Brooklyn, New York, for Petitioner.
Robert A.
Butterworth, Attorney General, Richard B. Martell, Chief, Capital Appeals, and
Carolyn M. Snurkowski, Assistant Deputy Attorney General, Tallahassee, Florida,
Katherine V. Blanco and Carol M. Dittmar, Assistant Attorneys General, Tampa,
Florida; and Louis A. Vargas, General Counsel and Susan A. Maher, Deputy
General Counsel, Department of Corrections, Tallahassee, Florida, for
Respondent.
PER
CURIAM.
*1 Thomas
H. Provenzano, at a time when he was under warrant of death, filed a petition
for writ of habeas corpus, a petition to invoke this Court's "all writs"
jurisdiction, and a petition for extraordinary relief. In order to give this
matter full consideration, this Court entered a stay of execution on July 8,
1999. This Court directed the circuit court to hold an evidentiary hearing
regarding the functioning of the electric chair. Following that four‑ day
hearing, the circuit court rendered findings of fact with respect to the
functioning of the electric chair and concluded that the electric chair does
not constitute cruel or unusual punishment. These findings of fact are the
subject of this appeal. We have jurisdiction pursuant to article V, sections
3(b)(1) and (9) of the Florida Constitution. For the reasons explained below,
we affirm the circuit court's order.
During the
evidentiary hearing on this matter, both parties presented several witnesses,
including testimony from experts. Most of the testimony focused on alleged
errors committed by the Department of Corrections (DOC) during recent
executions, particularly the execution of Allen Lee Davis on July 8, 1999. At
the conclusion of the hearing, the circuit court entered an order denying
relief, wherein it made the following findings of fact:
(1) During the execution of Allen Lee Davis, the
electric chair functioned as it was intended to function. Although the breakers
and other components of the electrical circuitry are old, the electric
circuitry is adequate to assure the proper functioning of the electric chair.
(2) The cycles of voltage and amperage applied in
the execution of Allen Lee Davis did not deviate from the execution protocol
which was previously approved by the Florida Supreme Court. The execution
protocol merely states: "The automatic cycle begins with the programmed
2,300 volts, 9.5 amps, for 8 seconds ...." (emphasis added). The protocol
does not state the voltage and amperage levels set forth therein are the
precise voltage and amperage levels that must be administered to the inmate who
is being executed.
The execution protocol does not take into account
the varying levels of resistance created by each and every inmate. The
resistance created by each executed inmate's body, or ohms, can be determined
by dividing the number of volts administered by the number of amps
administered. Since the level of resistance varies from inmate to inmate, these
figures must necessarily vary. The variations in these figures do not violate
the execution protocol.
(3) The death of Allen Lee Davis did not result
from asphyxiation caused by the mouth strap.
(4) Allen Lee Davis did not suffer any conscious
pain while being electrocuted in Florida's electric chair. Rather, he suffered
instantaneous and painless death once the current was applied to him.
(5) The nose bleed incurred by Allen Lee Davis
began before the electrical current was applied to him, and was not caused
whatsoever by the application of electrical current to Davis. This Court is
unable to make a finding regarding the exact cause or situs of the initial
onset of the nose bleed because that information was not determined during
either of the autopsies performed on Davis' body.
*2 (6) The post‑execution photographs of
Allen Lee Davis indicate that the straps used to restrain Davis' body,
specifically, the mouth strap and chin strap, may have caused Davis to suffer
some discomfort. However, the straps did not cause him to suffer unnecessary
and wanton pain, and the mouth strap was not a part of the electrical operation
of the electric chair.
(7) The use of a mouth strap to secure an inmate's
head to the electric chair may be desirable, however a smaller and/or
redesigned mouth strap could accomplish the same purpose without raising the
same issue involved here.
(8) Execution inherently involves fear, and it may
involve some degree of pain. That pain may include pain associated with
affixing straps around the head and body to secure the head and body [to] the
electric chair. However, any pain associated therewith is necessary to ensure
that the integrity of the execution process is maintained.
The
circuit court also made the following conclusion of law:
Execution by electrocution in Florida's electric
chair as it exists in its present condition as applied does not constitute
cruel or unusual punishment, and therefore, is not unconstitutional.
[1]
Provenzano raises four arguments regarding the circuit court's order. First,
Provenzano asserts that the circuit court erred in concluding that the electric
chair did not constitute cruel or unusual punishment. Provenzano alleges three
different bases for this conclusion: (1) the electric chair causes pain, both
in preparing for and during the electrocution, (2) the electrical circuitry has
not been maintained, and (3) DOC has failed to follow protocol.
This Court
recently concluded in Jones v. State, 701 So.2d 76, 79 (Fla.1997), that "[i]n order for a
punishment to constitute cruel or unusual punishment, it must involve 'torture
or a lingering death' or the infliction of 'unnecessary and wanton pain.'
" (citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859
(1976), and Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374,
91 L.Ed. 422 (1947)). The record in this case reveals abundant evidence that
execution by electrocution renders an inmate instantaneously unconscious,
thereby making it impossible to feel pain. The record also contains evidence
that the electric chair is and has been functioning properly and that the
electrical circuitry is being maintained.
In Blanco
v. State, 702 So.2d 1250, 1252 (Fla.1997) (quoting Jones v. State, 591 So.2d
911, 916 (Fla.1991)), this Court stated, "As long as the trial court's
findings are supported by competent substantial evidence, 'this Court will not
substitute its judgment for that of the trial court on questions of fact,
likewise of the credibility of the witnesses as well as the weight to be given
to the evidence by the trial court.' " We find that the circuit court's
findings of fact are supported by competent, substantial evidence. Therefore,
we again conclude, as we did in Jones, that Florida's electric chair is not
cruel or unusual punishment.
*3 We are
aware that the record contains numerous references from witnesses, including
State witnesses, that the execution protocol is not well written. There is also
a recommendation from the circuit court for DOC to employ "a smaller
and/or redesigned mouth strap." We conclude that there is competent,
substantial evidence to support the circuit court's finding of fact that the
execution protocol was not violated in the Davis execution. However, it may be
appropriate for DOC to revisit the protocol, including the use of the mouth
strap, to ensure that it is consistent with the functioning of the electric
chair.
[2] In
issue two, Provenzano claims that Florida's current use of electrocution as its
sole method of execution is unconstitutional because it violates the evolving
standards of decency that mark the progress of a maturing society. This claim
was rejected by this Court in Jones. See 701 So.2d at 79.
In issue
three, Provenzano claims that the circuit court made numerous erroneous evidentiary
rulings during the evidentiary hearing, [FN1] thereby denying him a full and
fair hearing. In Heath v. State, 648 So.2d 660, 664 (Fla.1994), this Court
stated that "[t]he trial court has broad discretion in determining the
relevance of evidence and such determination will not be disturbed absent an
abuse of discretion." Provenzano has not demonstrated that the circuit
court abused its discretion on these evidentiary rulings.
In issue
four, Provenzano claims that the circuit court erred when it struck additional
petitioners from Provenzano's petition for relief in this case. We find no
merit to this issue. The order in this case directing the circuit court to hold
an evidentiary hearing was specific as to the parties in this case. Further, a
similar motion to intervene was denied by this Court in Jones v. State, No.
90,231 (order filed July 3, 1997).
Accordingly, for the reasons expressed in this opinion, we affirm
the circuit court's order finding that the electric chair is not
unconstitutional. No motion for rehearing will be permitted.
It is so
ordered.
HARDING,
C.J., and WELLS, LEWIS, and QUINCE, JJ., concur.
HARDING,
C.J., concurs specially with an opinion, in which LEWIS, J., concurs.
WELLS, J.,
concurs with an opinion, in which QUINCE, J., concurs.
QUINCE,
J., concurs specially with an opinion, in which WELLS, J., concurs.
SHAW, J.,
dissents with an opinion, in which ANSTEAD, J., concurs.
ANSTEAD,
J., dissents with an opinion, in which SHAW, J., concurs.
PARIENTE,
J., dissents with an opinion, in which ANSTEAD, J., concurs.
HARDING,
C.J., specially concurring.
I write
separately for two reasons. First, I write to explain the reasons that I concur
with the majority opinion regarding the constitutionality of the electric
chair. Second, I again urge the Legislature to offer lethal injection as an
alternative method of execution.
I. Constitutionality of the Electric Chair
*4 I agree
with the majority in upholding the circuit court's findings regarding
electrocution as a constitutional method of execution. While I am disturbed by
the graphic photographs of Allen Lee Davis' body following his July 8, 1999,
execution, I do not find this alone enough to deem electrocution "cruel or
unusual" punishment. "Since it is the method of execution that is
challenged, it follows that a court must focus on the procedure as a whole and
over time, rather than on any one particular execution." Fierro v. Gomez,
865 F.Supp. 1387, 1411 n. 25 (N.D.Cal.1994) (permanently enjoining California
from executing inmates by lethal gas), aff'd, 77 F.3d 301 (9th Cir.) (affirming
injunction based on district court's factual findings regarding pain), vacated,
519 U.S. 918, 117 S.Ct. 285, 136 L.Ed.2d 204 (1996) (vacating judgment and
remanding for further consideration in light of California's subsequently
amended death penalty statute providing that lethal injections should be used
to carry out death sentences unless the defendant requests that the State use
the gas chamber). As explained by the district court in Fierro, the key
question to be answered in a challenge to the method of execution is how much
pain the inmate suffers. Id. at 1411. Where "unconsciousness is 'likely to
be immediate or within a matter of seconds' " the method is within
constitutional limits. Id. (quoting Campbell v. Wood, 18 F.3d 662, 687 (9th
Cir.1994) (finding that Washington's execution by judicial hanging did not
violate prohibition against cruel and unusual punishment)). The record in the
instant case contains competent, substantial evidence to support the conclusion
that Davis was rendered unconscious instantaneously when the current was
applied. This Court may not arbitrarily overturn the circuit court's finding
based upon conflicting evidence in the record. See Shaw v. Shaw, 334 So.2d 13,
16 (Fla.1976) ("It is not the function of the appellate court to
substitute its judgment for that of the trial court through re‑evaluation
of the testimony and evidence from the record on appeal before it. The test, as
pointed out in Westerman [v. Shell's City, Inc., 265 So.2d 43 (Fla.1972),] is
whether the judgment of the trial court is supported by competent
evidence.").
II. Lethal injection: The Need for Legislative
Action
However,
as I suggested in my concurring opinion in Jones v. State, 701 So.2d 76, 80
(Fla.1997) (Harding, J., specially concurring), I urge the Legislature to
revisit this issue and pass legislation giving death row inmates the choice
between lethal injection and electrocution as the method of carrying out the
death penalty. See Art. I, § 17, Fla. Const. ("Methods of execution may be
designated by the Legislature."); see generally, e.g., Ariz.Rev.Stat. Ann.
§ 13‑704(b) (West Supp.1998) (defendant sentenced to death for offense
committed prior to date of amended statute shall choose either lethal injection
or lethal gas; execution by lethal injection if the defendant fails to choose
method); Cal.Penal Code § 3604(b) (West Supp.1999) (same); S.C.Code Ann. § 24‑3‑530(A)
(Law Co‑op. Supp.1998) (election between electrocution and lethal
injection; if defendant waives right of election, then penalty must be
administered by lethal injection); Utah Code Ann. § 77‑18‑5.5
(1995) (election between firing squad and lethal injection; where no preference
is stated, execution is by lethal injection); Va.Code Ann. § 53.1‑234
(Michie 1998) (election between electrocution and lethal injection; lethal
injection where prisoner fails to choose in timely manner); Wash. Rev.Code §
10.95.180(1) (1998) (death shall be inflicted by lethal injection unless defendant
elects hanging).
*5 Florida
death row inmates almost routinely challenge electrocution as a cruel or
unusual method of punishment. See, e.g., Davis v. State, 24 Fla. L. Weekly
S345, ‑‑‑ So.2d ‑‑‑‑, 1999 WL 462642
(Fla. July 1, 1999), cert. denied, 68 U.S.L.W. 3136, ‑‑‑ U.S.
‑‑‑‑, ‑‑‑ S.Ct. ‑‑‑‑,
‑‑‑ L.Ed.2d ‑‑‑‑, 1999 WL 460197
(U.S. July 7, 1999), and cert. denied, 68 U.S.L.W. 3136, ‑‑‑
U.S. ‑‑‑‑, ‑‑‑ S.Ct. ‑‑‑‑,
‑‑‑ L.Ed.2d ‑‑‑‑, 1999 WL 460198
(U.S. July 7, 1999); Remeta v. State, 710 So.2d 543, 546 (Fla.), cert. denied, ‑‑‑
U.S. ‑‑‑‑, 118 S.Ct. 1383, ‑‑‑
L.Ed.2d ‑‑‑‑ (1998); Jones v. State, 701 So.2d 76, 80
(Fla.1997), cert. denied, ‑‑‑ U.S. ‑‑‑‑,
118 S.Ct. 1297, 140 L.Ed.2d 335 (1998); Stano v. Singletary, 692 So.2d 180, 181
(Fla.1997). Such challenges consume an inordinate amount of the time and
resources expended by inmates' counsel, State counsel, and judicial personnel.
Furthermore, each time an execution is carried out, the courts wait in dread
anticipation of some "unforeseeable accident" that will set in motion
a frenzy of inmate petitions and other filings. See Jones, 701 So.2d at 76 n.
1, 77 (discussing Pedro Medina's 1997 execution, where flames were seen near
the headpiece of the electric chair and smoke emanated from under the headpiece;
circuit court found that flame and smoke were caused by insufficient saline
solution on the sponge in the headpiece of the electric chair); Buenoano v.
State, 565 So.2d 309, 310‑11 (Fla.1990) (discussing flames and smoke that
erupted from the headpiece of the electric chair during the 1990 execution of
Jessie Tafero; investigation concluded that the irregularities in Tafero's
execution were caused by the use of a synthetic sponge).
It is my
view that the Legislature can foreclose many of these claims by simply amending
Florida's death penalty statute to provide that death sentences should be
carried out by lethal injection unless the defendant requests execution by
electrocution. See Fierro v. Terhune, 147 F.3d 1158, 1160 (9th Cir.1998)
(finding that California inmates lacked standing to challenge constitutionality
of execution by lethal gas and claims were not ripe for decision where the
inmates had not chosen execution by lethal gas); Poland v. Stewart, 117 F.3d
1094, 1104 (9th Cir.1997) (finding that similar challenge to identical Arizona
statute was not ripe because inmate had not chosen lethal gas as method of
execution). While an inmate's choice of electrocution would not constitute a
waiver of his or her Eighth Amendment protections and would not foreclose a
constitutional challenge to this method of execution, see LaGrand v. Stewart,
173 F.3d 1144 (9th Cir.1999), the alternative method of lethal injection would
still be available even if a constitutional challenge of electrocution proved
successful. See id. at 1149 (ordering that no inmates be executed by lethal gas
and that inmate bringing challenge could not be executed pursuant to the
existing death warrant which required execution by lethal gas, but also
recognizing that warrant could be "reissued in a form that does not
require execution by lethal gas").
*6
Although not determinative of the Eighth Amendment claim, I find it significant
that a number of other states that once relied on electrocution as the sole
means of execution have now either entirely abandoned this method or offered an
alternative. Nineteen of the states that currently permit capital punishment
specified in 1970 that electrocution was the exclusive form of capital
punishment. See Fierro, 865 F.Supp. at 1406. Today, of the thirty‑ eight
states that permit capital punishment for the crime of first‑degree
murder, only four states rely on electrocution as the exclusive form of
punishment. See Fla. Correct. Comm'n, 1997 Supplemental Report on Execution
Methods Used by States at 48 (June 20, 1997) (on file with Library, Fla.
Sup.Ct.) [hereinafter Commission Report]; Ky.Rev.Stat. Ann. § 431.220 (Michie
Supp.1998) (establishing lethal injection as the sole means of capital
punishment for defendants receiving death sentence on or after March 31, 1998,
and giving the choice of electrocution or lethal injection to those prisoners
sentenced prior to March 31, 1998); Tenn.Code Ann. § 40‑23‑114
(Supp.1998) (establishing lethal injection as the sole means of capital
punishment for defendants receiving death sentence on or after January 1, 1999,
and giving the choice of electrocution or lethal injection to those prisoners
sentenced prior to January 1, 1999). In contrast, thirty‑four states
offer lethal injection either as a choice or as the exclusive form of
punishment. See Commission Report at 48; Ky.Rev.Stat. Ann. § 431.220; Tenn.Code
Ann. § 40‑23‑114. Clearly, the modern trend is towards rejecting
electrocution as a method of capital punishment. In fact, in the 1997 report
submitted to the Governor and the Legislature by the Florida Corrections
Commission, the Commission recommended that Florida permit lethal injection as
an alternative method of execution. See Commission Report at 28.
Finally,
it is important to note that several courts, including the United States
Supreme Court, have held that it is not an ex post facto violation to apply a
change in execution methods retroactively. See Malloy v. South Carolina, 237
U.S. 180, 185, 35 S.Ct. 507, 59 L.Ed. 905 (1915); Hernandez v. State, 43 Ariz.
424, 32 P.2d 18, 25 (1934) (upholding amendment to statute which changed method
of capital punishment from hanging to lethal gas); DeShields v. State, 534 A.2d
630, 639 n. 7 (Del.1987) ("A statute which provides an optional method of
death is not ex post facto legislation or an unlawful bill of
attainder."); State ex rel. Pierre v. Jones, 200 La. 808, 9 So.2d 42, 46
(1942) (upholding amendment to statute which changed method of capital
punishment from hanging to electrocution); State v. Fitzpatrick, 211 Mont. 341,
684 P.2d 1112, 1113 (1984) (upholding amendment to statute which allowed
defendant to elect either lethal injection or hanging as the method of
punishment); Woo Dak San v. State, 36 N.M. 53, 7 P.2d 940, 941 (1931)
(upholding amendment to statute which changed method of capital punishment from
hanging to electrocution); Ex parte Granviel, 561 S.W.2d 503, 510‑11
(Tex.Crim.App.1978) (upholding amendment to statute which changed method of
capital punishment from electrocution to lethal injection); In re Personal
Restraint of Benn, 134 Wash.2d 868, 952 P.2d 116, 149 n. 19 (1998) (
"Retroactive application of a change in the method of execution does not
violate the Ex Post Facto Clause where the change is to a more humane
method."). In Malloy, the Supreme Court concluded that "[t]he statute
under consideration did not change the penalty‑death‑for murder,
but only the mode of producing this.... The punishment was not
increased...." 237 U.S. at 185, 35 S.Ct. 507. In Weaver v. Graham, 450
U.S. 24, 33 n. 17, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), the United States
Supreme Court further explained its decision in Malloy, wherein the Court
stated, "In Malloy v. South Carolina, we concluded that a change in the
method of execution was not ex post facto because evidence showed the new
method to be more humane, not because the change in the execution method was
not retrospective." (Citation omitted.) My research has not revealed a
single state that has found the retroactive application of a more humane method
of execution to be unconstitutional. This is true even though the sentence
imposed specifically called for the previous method of execution.
*7 For all
of the reasons expressed, I believe that the Legislature will only improve
death penalty jurisprudence in Florida by amending our state's statute to
permit inmates to choose between lethal injection and electrocution. This is
the prudent and proper step for the Legislature to take.
LEWIS, J.,
concurs.
WELLS, J.,
concurring.
I concur
in the majority opinion and the separate concurring opinion of Justice Quince.
I write briefly to make two points.
First, the
Davis nosebleed has not provided any basis for this Court to reexamine this
issue. This Court, on July 8, 1999, sent this case to a trial judge because of
allegations that the electric chair did not function as intended in the Davis
execution. The trial judge made the factual determination that those
allegations were unfounded. Therefore, there is no basis to disturb the
decision that this Court so recently made in Jones.
Second, in
respect to Chief Justice Harding's recommendation as to lethal injection,
obviously the legislature can relieve further complications involved with the
electric chair issues by changing the method of execution to lethal injection
for those crimes committed after the effective date of the legislation. I join
in the recommendation to that extent.
However, I
have to acknowledge that there are legal issues with the changing of sentencing
laws for the punishment of crimes committed prior to a change in the law. This
Court has been repeatedly taught that lesson by the United States Supreme
Court. In Gomez v. Singletary, 733 So.2d 499 (Fla.1998), the majority made this
point, pointing to Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17
(1981), Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997),
Calamia v. Singletary, 520 U.S. 1141, 117 S.Ct. 1309, 137 L.Ed.2d 473 (1997),
and Lancaster v. State, ‑‑‑ U.S. ‑‑‑‑,
118 S.Ct. 37, 139 L.Ed.2d 5 (1997). A great number of prisoners presently on
death row have been sentenced to death by judgments which specify use of the
electric chair because their sentences conformed with the existing law. All
have been sentenced on the basis of section 922.10, Florida Statutes, which
states: "A death sentence shall be executed by electrocution."
Not only
does this United States Supreme Court precedent present legal issues on a
change of this Florida statute, the Florida Constitution presents a legal issue
in article X, section 9, which states expressly: "Repeal or amendment of a
criminal statute shall not affect prosecution or punishment for any crime
previously committed." (Emphasis added.) Justice Shaw's dissent
acknowledges this legal issue in its footnote 53, recognizing this Court's
precedent in Washington v. Dowling, 92 Fla. 601, 109 So. 588 (1926), from which
he states he would recede.
*8 A
change to lethal injection for inmates may be legally attainable based upon an
express waiver by the prisoner of any contest as to the method of execution.
However, such a change requires full study and awareness by the legislature of
the legal issues. Consequently, I do not join those that recommend it without
acknowledging the consequent legal issues and that those legal issues will present
matters for further litigation. I conclude that because of these outstanding
legal issues the decisions as to this change are within the province of the
legislature and are matters about which this Court cannot properly render an
advisory opinion regardless of our personal views as to that decision.
QUINCE,
J., concurs.
QUINCE,
J., specially concurring.
I agree
with the majority's determination that death by electrocution is not cruel and
unusual punishment within the meaning of the Eighth Amendment. While there has
been much said about the Davis execution because of the blood which dripped
from the inmate's nostril during this process, the real question presented here
is whether or not the use of electrocution violates the "evolving standards
of decency" espoused by the United States Supreme Court in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2
L.Ed.2d 630 (1958). The answer to this question is not easy and involves the
analysis of several factors including the use of the particular method by other
states. Although electrocution as the judicial method of execution has been
abandoned in a number of states in favor of, for the must part, lethal
injection, [FN2] that factor does not dispose of the issue. [FN3]
In Jones
v. State, 701 So.2d 76 (Fla.1997), cert. denied, ‑‑‑ U.S. ‑‑‑‑,
118 S.Ct. 1297, 140 L.Ed.2d 335 (1998), this Court reiterated its prior
determination that death by electrocution is not per se cruel and unusual
punishment under the Eighth Amendment. See also Medina v. State, 690 So.2d 1241
(Fla.), cert. denied, 520 U.S. 1151, 117 S.Ct. 1330, 137 L.Ed.2d 490 (1997).
And, citing to Hunt v. Nuth, 57 F.3d 1327 (4th Cir.1995), and Campbell v. Wood,
18 F.3d 662 (9th Cir.1994), we indicated that the question of whether
electrocution was unusual because it was used in only six states [FN4] was
subsumed in the larger question of per se unconstitutionality. In Hunt, the
court addressed the constitutionality of judicial execution by lethal gas [FN5]
and, in Campbell, the court addressed judicial execution by hanging. [FN6]
In both
cases the courts were asked to declare the methods of execution cruel and
unusual because they were only used by a few states, and many states had
abandoned the methods in favor of lethal injection. [FN7] In making the determination
that neither lethal gas nor hanging was violative of the Eighth Amendment, the
Ninth and Fourth Circuits looked to other objective factors when possible. In
Campbell, the court stated:
*9 [M]ethodology review focuses more heavily on
objective evidence of the pain involved in the challenged method. See, e.g.,
Glass v. Louisiana, 471 U.S. at 1084, 105 S.Ct. at 2162 (Brennan, J.,
dissenting)(noting that "[f]irst and foremost" among the
"objective factors by which courts should evaluate the constitutionality
of a challenged method of punishment" is whether the method involves
" 'the unnecessary and wanton infliction of pain.' " (Citation
omitted.)) The number of states using hanging is evidence of public perception,
but sheds no light on the actual pain that may or may not attend the practice.
We cannot conclude that judicial hanging is incompatible with evolving
standards of decency simply because few states continue the practice.
Campbell,
18 F.3d at 682 (footnote omitted). In Hunt, the court made a similar
observation in reference to the use of lethal gas when it opined:
Despite the court's thorough opinion,[ [FN8]] we
decline Hunt's invitation to become the first court to follow the reasoning in
Fierro. Lethal gas currently may not be the most humane method of execution‑assuming
that there could be a humane method of execution‑but the existence and
adoption of more humane methods does not automatically render a contested
method cruel and unusual. Before Fierro, a number of courts had held that execution
by lethal gas did not violate the Eighth Amendment. Furthermore, we agree with
the district court in Hunt's case that "graphic descriptions of the death
throes of inmates executed by gas are full of prose calculated to invoke
sympathy, but insufficient to demonstrate that execution by the administration
of gas involves the wanton and unnecessary infliction of pain." Hunt III,
856 F.Supp. at 260; see also Campbell, 18 F.3d at 683.
Hunt, 57
F.3d at 1337‑38 (citations omitted). Thus, both courts reject the notion
that a method of execution is cruel and unusual because it is not a popular
method. Another objective criteria that the ninth circuit focused on was the
role of the legislature in determining the appropriate punishment for crimes.
The court in Campbell, quoting from Gregg v. Georgia, 428 U.S. 153, 96 S.Ct.
2909, 49 L.Ed.2d 859 (1976), stated that a punishment selected by a duly
elected legislature is presumed constitutional. This presumption holds true
even if the legislature does not select the least severe penalty, so long as
the penalty selected is not cruelly inhumane or disproportionate to the crime
involved. The Court in Gregg said:
[T]he requirements of the Eighth Amendment must be
applied with an awareness of the limited role to be played by the courts. This
does not mean that judges have no role to play, for the Eighth Amendment is a
restraint upon the exercise of legislative power.
*10 "Judicial review, by definition, often
involves a conflict between judicial and legislative judgment as to what the
Constitution means or requires. In this respect, Eighth Amendment cases come to
us in no different posture. It seems conceded by all that the Amendment imposes
some obligations on the judiciary to judge the constitutionality of punishment
and that there are punishments that the Amendment would bar whether
legislatively approved or not." Furman v. Georgia, 408 U.S., at 313‑314,
92 S.Ct. 2726 (White, J., concurring).
See also Id., at 433, 92 S.Ct. 2726 (Powell, J.,
dissenting).
Gregg, 428
U.S. at 174, 96 S.Ct. 2909. In evaluating the constitutionality of legislative
action, the judiciary should not be swayed by its own individual notion of
whether or not the particular judge would have chosen another course. Courts
should instead give effect to the legislative enactment as a reflection of the
will and the moral values of the people. However, while the laws and statutes
enacted by the people's duly elected representatives are some evidence of
contemporary values, again this is not determinative.
When
drafting the Eighth Amendment, the framers of our constitution were primarily
concerned with proscribing torturous or barbarous punishments. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct.
2726, 33 L.Ed.2d 346 (1972). As a consequence, the primary objective factor, in
addition to legislative action, that bears on the issue of the
constitutionality of a particular method of execution is whether or not that
method involves the "unnecessary and wanton infliction of pain." On
that issue, in regards to the execution of Allen Lee Davis, the trial court
found:
Allen Lee Davis did not suffer any conscious pain
while being electrocuted in Florida's electric chair. Rather, he suffered
instantaneous and painless death once the current was applied to him.
The nose bleed incurred by Allen Lee Davis began
before the electrical current was applied to him, and was not caused whatsoever
by the application of electrical current to Davis. This Court is unable to make
a finding regarding the exact cause or situs of initial onset of the nose bleed
because that information was not determined during either of the autopsies
performed on Davis' body.
The post‑execution photographs of Allen Lee
Davis indicate that the straps used to restrain Davis' body, specifically, the
mouth strap and chin strap, may have caused Davis to suffer some discomfort.
However, the straps did not cause him to suffer unnecessary and wanton pain,
and the mouth strap was not a part of the electrical operation of the electric
chair.
The trial
court's findings are based on substantial competent evidence that was adduced
at the evidentiary hearing and must be upheld. See Tibbs v. State, 397 So.2d
1120 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).
These findings support the trial court's ultimate conclusion that electrocution
as a form of execution does not constitute cruel and unusual punishment.
*11 In my
estimation, little has changed since our analysis of this situation in Jones v.
State. The pictures of the blood generated by Davis's nosebleed are not
pleasant. However, we must keep in mind that the nosebleed does not per se
relate to the proper functioning of the electric chair. The two issues are not,
under the circumstances of this case, intertwined.
I join in
the trial court's suggestion to the Department of Corrections that the mouth
strap should be replaced or other sizes used depending on the size of the
inmate. Such a change, assuming the bleeding and the facial discoloration
resulted from the placement of the mouth strap, should eliminate some of the
"ghastliness" associated with the photographs of the Davis body, and
eliminate some of the human error that seems to plague this form of execution.
For the
reasons stated above, I would affirm the trial court's determination that
Florida's use of electrocution as the sole method of execution is not cruel and
unusual punishment.
WELLS, J.,
concurs.
SHAW, J.,
dissenting.
The
overarching question presented in this case is whether continued use of
electrocution as the official method of execution in Florida comports with the
state and federal constitutions. This question has not been directly confronted
by this Court in any case‑‑despite a widespread belief that the
issue has been duly decided. At most, this Court on one occasion has conducted
a "snapshot" review of the execution apparatus, i.e., the electric
chair, and concluded that use of the chair at that point in time did not
violate the constitution because any problems had been fixed and inmates
suffered no conscious pain. [FN9] The Court did not address violence or
mutilation or the per se constitutionality of electrocution as a mode of
execution in Florida. That issue was procedurally barred:
The claim that execution by electrocution is
unconstitutional per se is hereby denied as procedurally barred as it could
have been raised in previous petitions for relief. Jones v. Butterworth, 691 So.2d 481, 482 (Fla.1997) (emphasis
added).
In light
of continuing malfunctions and mishaps with this method of execution in Florida,
I am convinced that the time has now come to confront this issue head‑on,
and it is my conclusion that electrocution as it has been administered in
Florida is unconstitutional. I would direct that the sentence in the present
case be carried out by lethal injection as prescribed by statute. [FN10]
I. FACTS
Following
the recent bloody execution of Allen Lee Davis on July 8, 1999, this Court
remanded the present case to the trial court to conduct an evidentiary hearing
on a single narrow issue‑‑the present functioning of Florida's
electric chair. At the conclusion of the hearing, the trial court inter alia
made two findings despite considerable evidence to the contrary: (1) Florida's
electric chair functioned as intended during the Davis execution; and (2) Davis
suffered no conscious pain. The court ruled as follows:
*12 Execution by electrocution in Florida's
electric chair as it exists in its present condition as applied does not
constitute cruel or unusual punishment, and therefore, is not unconstitutional.
(Emphasis
added.) The court focused only on the question before it and did not address
the issues of violence or mutilation or the overall record of electrocution as
a method of execution in Florida.
The
present majority opinion affirms the conclusion of the trial court, focusing on
the present functioning of the chair and the lack of pain:
This Court recently concluded in Jones v. State,
701 So.2d 76, 79 (Fla.1997), that "[i]n order for a punishment to
constitute cruel or unusual punishment, it must involve 'torture or lingering
death' or the infliction of 'unnecessary and wanton pain.' " (citing Gregg
v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and Louisiana
ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947)).
The record in this case reveals abundant evidence that execution by
electrocution renders an inmate instantaneously unconscious, thereby making it
impossible to feel pain. The record also contains evidence that the electric
chair is and has been functioning properly and that the electrical circuitry is
being maintained.
Majority
op. at ‑‑‑‑. The majority opinion then proceeds to
extrapolate from the narrow "snapshot" ruling of the trial court and
concludes broadly that use of Florida's electric chair in general is not cruel
or unusual punishment, citing Jones v. State, 701 So.2d 76 (Fla.1997):
In Blanco v. State, 702 So.2d 1250, 1252
(Fla.1997), this Court stated, "As long as the trial court's findings are
supported by competent substantial evidence, 'this Court will not substitute
its judgment for that of the trialcourt on questions of fact, likewise of the
credibility of the witnesses as well as the weight to be given to the evidence
by the trial court.' " We find that the circuit court's findings of fact
are supported by competent substantial evidence. Therefore, we again conclude,
as we did in Jones, that Florida's electric chair is not cruel or unusual
punishment.
Majority
op. at ‑‑‑‑ ‑ ‑‑‑‑
(emphasis added). The majority opinion summarily rejects Provenzano's
"evolving standards of decency" claim, again citing Jones:
In issue two, Provenzano claims that Florida's
current use of electrocution as its sole method of execution is
unconstitutional because it violates the evolving standards of decency that
mark the progress of a maturing society. This claim was rejected by this court
in Jones. See 701 So.2d at 79.
Majority
op. at ‑‑‑‑ (emphasis added).
This
reliance on Jones is misplaced. Contrary to what the majority opinion assumes,
the trial courts both in Jones and the present case never reached the broad
issue of the per se constitutionality of electrocution as a method of execution
in Florida‑‑that issue was beyond the scope of the evidentiary
hearings in both cases. Nor did this Court in Jones address this issue‑‑for
the issue was found to be procedurally barred.
II. FLORIDA'S CRUEL AND UNUSUAL PUNISHMENT CLAUSE
*13
Article I, section 17, Florida Constitution, proscribes punishments that are
"cruel and unusual":
SECTION 17. Excessive punishments.‑‑Excessive
fines, cruel and unusual punishment, attainder, forfeiture of estate,
indefinite imprisonment, and unreasonable detention of witnesses are forbidden.
Art. I, §
17, Fla. Const. (emphasis added). The question posed in the present case is whether
this prohibition bars the use of electrocution as the official method of
execution in Florida.
The
present majority opinion relies on Jones v. State, 701 So.2d 76 (Fla.1997), to resolve this issue. Following
the fiery execution of Pedro Medina in 1997, this Court remanded Jones' case to
the trial court to conduct an evidentiary hearing on the limited issue of
whether use of Florida's electric chair in its then‑current condition
constituted "cruel or unusual" punishment. Jones v. Butterworth, 691
So.2d 481 (Fla.1997). The trial court found that the malfunction (an improperly
moistened sponge in the head‑piece) had been fixed, that the chair was
now working properly, and that Medina had suffered no conscious pain. This
Court affirmed.
This Court
refused to consider Jones' contention that electrocution in general is
unconstitutional under evolving standards of decency. The Court explained:
Jones also argues that the trial judge erred in
refusing to admit and consider evidence that execution in Florida is unusual
because there is a trend away from execution through the use of the electric
chair as a means of capital punishment and because only six states currently
employ the electric chair as a means of execution. The trial judge properly
excluded this evidence as being beyond the scope of the issue which he had been
assigned to decide. Our previous ruling that execution by the use of the
electric chair is not per se unconstitutional subsumed the argument that Jones
now makes. See Campbell v. Wood, 18 F.3d 662, 682 (9th Cir.1994) ("We
cannot conclude that judicial hanging is incompatible with evolving standards
of decency simply because few states continue the practice."); Hunt v.
Nuth, 57 F.3d 1327, 1338 (4th Cir.1995) ("[T]he existence and adoption of more
humane methods [of execution] does not automatically render a contested method
cruel and unusual.").
Jones, 701
So.2d at 79 (emphasis added)(footnote omitted). The Court ultimately held as
follows: "We hold that electrocution in Florida's electric chair in its
present condition is not cruel or unusual punishment." Id. at 80 (emphasis
added).
It is
clear from the above that this Court‑‑and the trial court‑‑did
not address the issue of whether Medina suffered undue violence or mutilation
or whether electrocution is constitutional as the traditional method of
execution in Florida. Rather, the Court conducted a "snapshot" review
of the current functioning of Florida's electric chair‑‑i.e., the
Court limited its review to whether the electric chair was working properly at
that point in time and whether Medina had suffered unnecessary pain. The Court
disposed of Jones' per se constitutionality claim by referring to its earlier
ruling in the case. ("Our previous ruling that execution by the use of the
electric chair is not per se unconstitutional subsumed the [evolving standards
of decency] argument that Jones now makes." Id.) A review of that earlier
ruling, however, shows that the Court never addressed the per se
constitutionality issue on the merits but rather disposed of it procedurally.
[FN11] Nowhere in our two decisions in Leo Jones' case did the Court directly
address this issue; it was never properly before the Court.
*14 A
review of this Court's death penalty precedent reveals that in those cases in
which this issue was raised, the Court disposed of the matter in summary
fashion without analysis. [FN12] The State points to no case from this Court
where this method of execution was subjected to explicit constitutional
scrutiny. Existing Florida precedent construing the Cruel and Unusual
Punishment Clause in other situations offers little insight. Accordingly, this
Court is obliged to turn to United States Supreme Court precedent for guidance.
III. FEDERAL CRUEL AND UNUSUAL PUNISHMENTS CLAUSE
The Eighth
Amendment to the United States Constitution bars punishments that are
"cruel and unusual": Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
U.S.
Const. amend. VIII (emphasis added). This provision is of key importance in
evaluating the lawfulness of a method of execution.
A. The Kemmler Standard‑‑"Mere
Extinguishment of Life"
The United
States Supreme Court last confronted a "method of execution" case in
In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890), the case that
inaugurated electrocution as a method of execution in this country. [FN13] That
case is still the seminal case in this field and, contrary to popular belief,
does not stand for the proposition that electrocution is per se lawful ad
infinitum if there is no pain. [FN14] Rather, the Court in Kemmler simply
acceded to the state court's finding that‑‑given the available
options at that point in time in the nineteenth century‑‑electrocution
was permissible as a more humane form of execution than hanging. As explained
below, the enduring legal principle articulated in that case‑‑i.e.,
the Kemmler standard‑‑is far more broad and goes to the very heart
of the Eighth Amendment.
The Court
in In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890), was asked to invalidate New York's
newly enacted statutory scheme, which replaced hanging with electrocution as
the official method of execution. The Court declined to invalidate the statute.
First, the Court noted that death by hanging had been recognized by the
governor of New York to be barbaric, and that the governor had called upon the
state legislature to find a better method:
It appears that the first step which led to the
enactment of the law was a statement contained in the annual message of the
governor of the State of New York, transmitted to the legislature January 6,
1885, as follows: "The present mode of executing criminals by hanging has
come down to us from the dark ages, and it may well be questioned whether the
science of the present day cannot provide a means for taking the life of such
as are condemned to die in a less barbarous manner. I commend this suggestion
to the consideration of the legislature."
*15 Id. at
444, 10 S.Ct. 930. Second, the Court pointed out that the state legislature had
acted faithfully on the governor's commendation:
The legislature accordingly appointed a commission
to investigate and report "the most humane and practical method known to
modern science of carrying into effect the sentence of death in capital
cases." This commission reported in favor of execution by electricity, and
accompanied their report by a bill which was enacted and became chapter 489 of
the Laws of 1888.
Id. And
finally, the Court noted that: (a) the state legislature had determined that
electrocution was a more humane method of punishment; (b) the trial court had
collected a "voluminous mass of evidence" on both sides of the issue
and had reached the same conclusion, and (c) the state courts at every level
had agreed with that conclusion.
In
addressing the Cruel and Unusual Punishments Clause in this context, [FN15] the
United States Supreme Court set forth what has become known as the Kemmler
standard. That standard, which bars anything more than "the mere
extinguishment of life," is now the abiding criterion for evaluating the
constitutionality of a method of execution:
Punishments are cruel when they involve torture or
a lingering death; but the punishment of death is not cruel within the meaning
of that word as used in the Constitution. [Cruelty] implies ... something
inhuman and barbarous,‑‑something more than the mere extinguishment
of life.
Id. at
447, 10 S.Ct. 930 (emphasis added). In short, to comport with the constitution,
a method of execution is limited to "the mere extinguishment of life"‑‑to
the extent that this is reasonably possible. Any adverse effect beyond that
point (i.e., any undue pain, violence, mutilation, or disgrace) is gratuitous
and thus "inhuman and barbarous." The Court ultimately deferred to
the state legislature's and courts' determination that electrocution was a more
humane method of execution than hanging and declined to invalidate the New York
statute. Id. at 449, 10 S.Ct. 930.
Although
the United States Supreme Court has not confronted a "method of
execution" case since Kemmler, the Court has ruled on a number of other
government practices under the Cruel and Unusual Punishments Clause, as
explained below. The Kemmler standard is reaffirmed in many of these cases. In
reviewing these cases, a broad schematic for construing the Clause in
"method of execution" cases emerges, embracing the following points:
(1) While pain is a relevant indicator of cruelty, it is not the only
indicator; (2) violence, mutilation, and disgrace are also relevant indicators
of cruelty; and (3) the legal dimensions of cruelty are measurable against
evolving standards of decency.
1. Undue Pain
*16 In the
olden days, a common component of punishments meted out by the crown was the
intentional infliction of pain, violence, mutilation, and disgrace, for the
crown viewed wanton cruelty as both a deterrent and a mode of vengeance and
retribution. Upon our nation's birth, however, the Cruel and Unusual
Punishments Clause was erected by the founding fathers as a resolute barrier to
this repugnant practice, particularly where methods of execution were
concerned. [FN16] While some degree of suffering is unavoidable in any means of
taking life, the Clause focuses on any excessive cruelty which inheres in the
method of execution‑‑not that inevitable suffering which exists in
the mind of the condemned. [FN17]
To meet
the requirement that a punishment not be impermissibly cruel, a method of
execution first of all must inflict no undue pain. As the United States Supreme
Court stated: "The traditional humanity of modern Anglo‑American law
forbids the infliction of unnecessary pain in the execution of the death
sentence." Louisiana ex rel. Francis v. Resweber, 329 U.S. at 463, 67
S.Ct. 374.
The all‑important consideration is that the
execution shall be so instantaneous and substantially painless that the
punishment shall be reduced, as nearly as possible, to no more than that of
death it self.
Id. at
474, 67 S.Ct. 374 (Burton, J., dissenting).
California's gas chamber has been found to be impermissibly cruel
under this test, for while lethal gas as applied in California involves minimal
violence and mutilation, it inflicts substantial pain (i.e., intense visceral
pain from oxygen deprivation) and results in a slow, lingering death akin to
artificial drowning (i.e., the inmate may remain conscious for several minutes)
and thus is cruel in its effect. [FN18] Execution by gas is to be distinguished
from lethal injection, which is generally considered more humane. [FN19]
2. Undue Violence, Mutilation, and Disgrace
Although
pain is an important indicator of cruelty, it is not the only indicator‑‑for
a method of execution can involve minimal pain and yet still be extraordinarily
cruel. To meet the requirement that a punishment not be impermissibly cruel, a
method of execution also must entail no undue violence, mutilation, or
disgrace:
The Eighth Amendment's protection of "the
dignity of man" extends beyond prohibiting the unnecessary infliction of
pain when extinguishing life. Civilized standards, for example, require a
minimization of physical violence during execution irrespective of the pain
that such violence might inflict on the condemned. Similarly, basic notions of
human dignity command that the State minimize "mutilation" and
"distortion" of the condemned prisoner's body.
Glass, 471
U.S. at 1085, 105 S.Ct. 2159 (Brennan, J., dissenting from denial of
certiorari). [FN20]
As
conceded by the State in the present proceeding, the guillotine as used in the
French Revolution is a prime example of a method that would fail in this
regard, for while beheading results in a quick, relatively painless death,
[FN21] it entails frank violence (i.e., gross laceration and blood‑letting)
and mutilation (i.e., decapitation) and disgrace (i.e., public spectacle) and
thus is facially cruel. Post‑execution disfigurement‑‑e.g.,
dismemberment, disembowelment, decapitation, flaying, or dragging of the body‑‑and
displaying of the mutilated corpse similarly would be forbidden even though
this practice involves no conscious pain. Forced public disrobing prior to
execution also would be forbidden.
*17 In the
present case, the State in oral argument before this Court conceded that use of
the guillotine asa method of execution would fail constitutional muster in all
states under the Cruel and Unusual Punishments Clause. By this concession, the
State‑‑of necessity‑‑agrees that there are other
indicators of cruelty besides pain. I suggest that these additional indicators
inhere in the method of execution. Thus far in Florida, we have suppressed any
reasoned consideration of these additional factors by limiting the scope of the
inquiry at the evidentiary hearings, wherein the courts have focused only on
pain.
B. Evolving Standards of Decency
Subsequent
to its decision in Kemmler, the United States Supreme Court concluded that the
Constitution‑‑in order to retain meaning and effect‑‑must
exist in our society as a dynamic force. [FN22] The Court then articulated a
new standard for evaluating certain government practices under the Cruel and
Unusual Punishments Clause‑‑the "evolving standards of
decency" criterion:
The Court [has] recognized ... that the words of
the Amendment are not precise, and that their scope is not static. The
Amendment must draw its meaning from the evolving standards of decency that
mark the progress of a maturing society.
Trop v.
Dulles, 356 U.S. 86, 100‑01, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (emphasis added). [FN23] The Supreme
Court has reviewed a number of government practices under this standard,
including the imposition of the death penalty for various offenses. [FN24] This
review generally includes three considerations: (1) Whether the practice has
been approved, rejected, or abandoned in other states; [FN25] (2) whether the
practice has been approved, rejected, or abandoned by the governments of other
civilized nations; [FN26] and (3) whether other less cruel modes of punishment
are available. [FN27]
C. Analysis Used by Lower Federal Courts
Unlike the
United States Supreme Court, the lower federal courts have ruled on the
constitutionality of several methods of execution in recent years. The
analytical model that emerges from these rulings has two steps. The court first
determines whether a method of execution is limited to "the mere
extinguishment of life." If the method is not so limited and entails
adverse effects beyond that point, the court then must determine if these
effects are "undue." To assist in this second step, the court may
apply the "evolving standards of decency" criterion. Two federal
circuit court cases are instructive. [FN28]
The Ninth
Circuit in Campbell v. Wood, 18 F.3d 662 (9th Cir.1994), upheld the State of
Washington's alternative method of execution, [FN29] hanging, against a
challenge under the Cruel and Unusual Punishments Clause. [FN30] After
conducting an evidentiary hearing on the issue, the trial court noted two
points: (1) Hanging in Washington is conducted pursuant to "Field
Instruction WSP 410.500," an exhaustively detailed execution protocol
adopted from the military; and (2) after adoption of the protocol, the only
hanging conducted in the state had been performed flawlessly several years
earlier. [FN31] Campbell, 18 F.3d at 683, 685. The trial court then concluded
that "hanging according to the protocol does not involve lingering death,
mutilation, or the unnecessary and wanton infliction of pain." Id. at 687.
The circuit court deferred to the trial court's findings and declined to
conduct an "evolving standards of decency" analysis. Id. at 682.
There was no point in looking at other states; execution by hanging as carried
out in Washington clearly entailed no undue pain or mutilation. [FN32]
*18 Two
years later, the Ninth Circuit in Fierro v. Gomez, 77 F.3d 301 (9th Cir.1996), held California's
alternative method of execution, [FN33] lethal gas, unconstitutional. The trial
court had conducted an eight‑day bench trial on the issue and concluded
that lethal gas as applied in California resulted in extreme physical pain. The
circuit court again deferred to the trial court's findings and declined to
conduct an "evolving standards of decency" analysis. Id. at 308.
There was no point in looking at other states; execution by lethal gas as
carried out in California clearly entailed undue pain.
Although
the Ninth Circuit in both Campbell and Fiero declined to apply the
"evolving standards of decency" criterion, this was due to the
particular facts of those cases. In the eyes of the court, the proper result in
each case was clear‑cut and was dictated by circumstances in the home
state. The court did not hold that the "evolving standards of
decency" criterion could never be used in a "method of
execution" case‑‑for logic suggests that the criterion would
be helpful in a case where the constitutionality vel non of the method is not
clear‑cut (which is the situation in the present case).
IV. THREE RECENT EXECUTIONS
The
administration of electrocution in Florida demonstrates the cruelty inherent in
this method of execution. Not only was every execution in Florida accompanied
by the inevitable convulsing and burning that characterizes electrocution,
[FN34] but further, three executions in particular were marred by extraordinary
violence and mutilation. In two of these executions, smoke and flames spurted
from the headpiece and burned the heads and faces of the inmates. In the third
execution, the inmate bled from the nostrils and was at least partially
asphyxiated by the restraining devices; and he too was burned.
A. Tafero's Execution
Florida's
electric chair malfunctioned during the execution of Jesse Tafero on May 4,
1990, resulting in a violent scene, with smoke and foot‑long flames
spurting from his head. This Court described the scene:
When Tafero's execution began, smoke and flames
instantaneously spurted from his head for a distance of as much as twelve
inches. The flames and smoke emanated from the area around a metallic skull
cap, inside of which was a saline‑soaked synthetic sponge meant to
increase the flow of electricity to the head. The cap is the source of
electricity administered to condemned prisoners by the electric chair.
Because of the smoke and flames, officials of the
Department of Corrections stopped the first surge of electricity. A second jolt
again resulted in smoke and flames spurting from Tafero's head. Finally, a
third jolt of electricity was administered. A medical examiner found that
Tafero was dead some six or seven minutes after the execution commenced.
*19 Thereafter, the Governor ordered the
Department of Corrections to conduct an investigation into the circumstances of
Tafero's execution. The Department reported that the equipment was in proper
working order. However, it was determined that for the first time a synthetic,
rather than a natural, sponge had been used in the headpiece. The Department
concluded that the burning of the sponge caused the flames and smoke which were
seen during Tafero's execution.... The Department ... noted that most
executions last longer than seven minutes.
Buenoano
v. State, 565 So.2d 309, 310‑11 (Fla.1990).
The
mutilated condition of Tafero's body was described in the sworn statement of a
witness:
I have seen the bodies of three other inmates
executed by officials of the Florida State Prison. I saw them at approximately
the same length of time after they were executed as I saw Mr. Tafero's body.
None of the other bodies I saw before had the severe burning and scorching and
damage to the head as did Mr. Tafero's. None had any marks on the face at all.
The entire top of Mr. Tafero's head is covered
with wounds. There is one dominant charred area and a myriad of smaller gouged,
raw areas to the upper right side and lower right of the large burned area.
The dominant charred area is on the top left side
of the head. It is larger than my hand.... The funeral director said that this
was a third degree burn. The rest of that area was a dark brownish color,
slightly lighter than the charred area. The funeral director said that this
would be a second degree burn.
Id. at 314
(Kogan, J., dissenting). Additionally, Tafero's eyebrows, eyelashes, and facial
hair were burned when flames licked his face. See Jones, 701 So.2d at 87 (Shaw,
J., dissenting).
B. Medina's Execution
Florida's
electric chair malfunctioned again during the execution of Pedro Medina on
March 25, 1997, resulting in another violent scene with smoke and flames
spurting from the head‑piece. Unlike Tafero, Medina's eyebrows,
eyelashes, and facial hair were not burned off. However, Medina's head was
charred and his face was scalded. The trial court in Jones described the
execution:
When Pedro Medina was executed on March 25, 1997,
the following events occurred. When the electrical current was activated,
within seconds ... smoke emanated from under the right side of Medina's head piece,
followed by a 4 to 5 inch yellow‑orange flame which lasted 4 to 5 seconds
and then disappeared. After the flame went out, more smoke emanated from under
the head piece to the extent that the death chamber was filled with smoke‑‑but
the smoke was not dense enough to impair visibility in or through the chamber.
The smoke continued until the electrical current was shut off in the middle of
the third cycle. Although several witnesses to the execution tried to describe
the odor of the smoke, only one witness, Florida State Prison Superintendent
Ronald McAndrews, described the odor as burnt sponge.... This Court finds that
the odor smelled was burnt sponge, not burnt flesh. *20 The physician's assistant, William Mathews, examined
Medina's body. At that time, Medina was not breathing or exchanging air through
his nostrils; his pupils were fixed and dilated; and he had an agonal pulse and
heart sounds. When the physician's assistant was no longer able to detect any
pulse or heart sounds, the attending physician, Dr. Almojera, examined Medina
and pronounced him dead at 7:10 a.m. During Dr. Almojera's last examination
Medina's chest was seen to move two or three times in a two to four minute
period. A couple of witnesses thought Medina was trying to breathe. Several
witnesses did not describe it as attempted breathing, but as a lurching,
spasmodic movement, a shudder, and outward not upward movement. No witness,
particularly those closest to Medina, could state that he was in fact breathing
or attempting to breathe.
Jones, 701
So.2d at 86 (Shaw, J., dissenting).
As with
Tafero's body, Medina's body also was mutilated by the electrocution. The
findings of the pathologists who conducted the autopsy of Medina were
summarized by the trial court in Jones:
1. The head had a "burn ring" on the
crown of the head that was common in 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 face and head, caused by scalding steam....
Unlike the Tafero execution, Medina had no burning of the eyebrows, eyelashes,
or small hairs of the face that would have resulted if the burning had been the
result of a flame rather than steam.
Jones, 701
So.2d at 86‑87 (Shaw, J., dissenting).
C. Davis' Execution
The
execution of Allen Lee Davis on July 8, 1999, differed from prior executions in
that here Department of Corrections ("DOC") officials took post‑
execution color photos of Davis before he was removed from the electric chair.
(Several of the photos are appended to this dissenting opinion.) These photos,
when combined with eye witness accounts, provide a vivid picture of a violent
scene. According to witnesses' accounts, when Davis was being strapped into the
chair, guards placed a solid leather mouth‑strap across his mouth and
nose area. This mouth‑strap is wide‑‑approximately five
inches from top to bottom‑‑ and it covered the entire lower portion
of Davis's face from the bottom of his chin to immediately below his nose.
[FN35] The strap was fastened so tightly against his face and was so wide that
it pushed his nose severely upward, blocking his nostrils at least partially. A
heavy fabric face‑mask was placed on top of this apparatus, further
occluding his airway. And then, as explained below, blood began flowing from
his nose prior to electrocution. This too obstructed his nostrils.
The trial
court below explained that the pathologist who conducted a post‑
execution autopsy on Davis concluded that he had been at least partially
asphyxiated prior to electrocution:
*21 Robert Kirschner, M.D., forensic pathologist
from Illinois, testified as an expert in the area of forensic pathology.
Kirschner testified that he performed an autopsy on the body of Allen Lee
Davis. He testified that during Davis's autopsy, he was unable to identify the
precise source of the nose bleed that Davis suffered, but that it was coming
from the septal area of the left nostril. Kirschner testified that the placement
of the mouth strap across Davis' mouth inhibited Davis' breathing and caused
him to become at least partially asphyxiated before the application of
electrical current to him. Kirschner testified that he is of the opinion that
Davis' death was caused by electrocution and association of partial
asphyxiation which occurred before the electrocution. ...
....
Aubrey D. Thornton, Assistant Warden at Florida
State Prison, testified that he was one of the individuals responsible for
strapping Allen Lee Davis into the electric chair.... Thornton also testified
that Davis' face began to turn red after the mouth strap was applied to him
.... (Emphasis added.) After Davis'
airflow had been blocked by the mouth‑strap, the face‑mask, and his
own blood, Davis made several sounds under the face‑mask which were
described variously as muffled screams, moans, or yells, as if he were
attempting to get the guards' attention. The trial court gave the following
description:
John W. Moser, Capital Collateral Regional Counsel
for the Middle Region, testified that in his capacity as Capital Collateral
Regional Counsel, he witnessed the execution of Allen Lee Davis. Moser
testified that between the time Davis was secured in the electric‑chair
and the time the electrical current was applied to Davis, he heard what sounded
like two screams from Davis. ...
Mark Lazarus, Victim Assistance Administrator for
the Florida Department of Corrections, testified that he observed theexecution
of Allen Lee Davis. Lazarus testified that after the head piece was placed on
Davis' head, he heard two one‑syllable sounds coming from Davis and that
the sounds sounded like Davis was trying to "make some noise" or
"yell out." ...
....
Thomas Varnes, Warden at Wakulla Correctional
Institution, testified that he witnessed the execution of Allen Lee Davis.
Varnes testified that after the mouth strap and chin strap of the head piece
were tightened and the face mask was lowered, he heard Davis moan like he was
trying to say something. ...
....
James Crosby, Warden of Florida State Prison
testified that after the mouth piece was placed on Davis, and just before the
execution, he heard two muffled sounds from Davis, which sounded like Davis was
trying to say something.
(Emphasis
added.)
Prior to
and during the electrocution, blood flowed freely from Davis' nose, ran over
the mouth‑strap, and spilled onto his chest, forming a pool the size of a
dinner plate on his white shirt. Again, in the words of the trial court below:
*22 Sheila McAllister, Correctional Probation
Officer at Wakulla Correctional Institution, testified that she witnessed the
execution of Allen Lee Davis.... McAllister also testified that while the
current was on she observed blood on Davis' chest, and she observed something
dripping from behind Davis' mask.
....
Michael R. Collins, employed with Florida State
Prison as a nurse, testified that he attended the execution of Allen Lee
Davis.... Collins further testified that after the electrical current was
stopped and after Mr. Matthews, the Florida State Prison physician's assistant,
was examining Davis, he observed blood on Davis' shirt in his chest area and on
his upper right side, by his collar. Collins stated that the blood was dripping
from under the mask ....
....
William Muse, Lieutenant with the Florida
Department of Corrections, assigned to Florida State Prison, testified that he
witnessed the execution of Allen Lee Davis.... Muse testified that after the
cycle of current had been terminated, he observed blood on Davis' shirt, blood
on the strap, and blood coming from Davis' nostril[s].
(Emphasis
added.) In light of the placement of the mouth‑strap, the positioning of
the face‑mask, and the flow of blood from his nostrils, it is reasonable
to conclude‑‑as did Dr. Kirschner‑‑that Davis was being
smothered before he was electrocuted.
And
finally, as with Tafero and Medina, Davis' body was mutilated by burns on the
head, face, and leg, as noted in the trial court's order:
The deposition of William Hamilton, M.D., Medical
Examiner for the Eighth Judicial Circuit, was read into the record due to
Hamilton's unavailability.... Hamilton testified that Davis had burns on his
scalp and forehead, on his superpubic and right upper medial thigh region, and
behind the right knee.
(Emphasis
added.)
The color
photos taken by DOC show a ghastly post‑execution scene: Davis is wearing
a white shirt and dark pants and is restrained in the wooden chair by thick
leather straps placed across his arms, legs, torso, and mouth; the electrical
head‑piece is attached to the top of his head with a leather strap that
runs under his chin; a sponge placed under the head‑piece obscures the
entire top portion of his head down to his eyebrows; because of the width of
the mouth‑strap, only a small portion of Davis' face is visible above the
mouth‑strap and below the sponge, and that portion is bright purple and
scrunched tightly upwards; his eyes are clenched shut and his nose is pushed so
severely upward that it is barely visible above the mouth‑strap; although
the exterior openings of Davis' nostrils are partially visible, it appears as
though the interior openings may be covered by the mouth‑strap; a stream
of blood pours from his nostrils, flows over the wide leather mouth‑strap,
runs down his neck and chest, and forms a bright red pool (approximately eight
by twelve inches) on his white shirt. The scene is unquestionably violent.
V. ELECTROCUTION IN FLORIDA IS UNCONSTITUTIONALLY
CRUEL
*23 As
noted above, the abiding standard for determining the constitutionality of a method
of execution is the "mere extinguishment of life" standard set forth
in In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890). Execution by
electrocution as administered in Florida violates this standard because it
entails undue violence and mutilation. Additionally, execution by electrocution
as practiced in Florida is inconsistent with evolving standards of decency.
A. Electrocution Violates the Kemmler Standard
Although a
total of twenty executions were carried out "successfully" in the
intervening years between the Tafero, Medina, and Davis executions, this
statistic is insufficient to save Florida's method of execution from
constitutional infirmity. In even the "successful" executions, the
inmate was subjected to violence (i.e., the inmate was administered an
electrical force that caused him to convulse violently) and mutilation (i.e.,
the body of each inmate was burned on the head and leg as a result of the
electrocution process). Additionally, in three out of twenty‑three
executions, i.e., in thirteen percent of executions, the prisoner was subjected
to extreme violence and mutilation when the execution was botched. [FN36]
In two of
these botched executions (Tafero and Medina), the prisoner was engulfed in
smoke and flames when the switch was pulled. The head of one prisoner (Tafero)
was burned and charred, his face was licked by flames, and his eyebrows,
eyelashes, and facial hair were burned; his head also was gouged and made raw
with wounds. The head of another (Medina) was burned and charred and his face
was scalded. In the third botched execution (Davis), the prisoner suffered
blood flowing from his nose and pooling on his chest; he was likely asphyxiated
at least partially prior to electrocution, and he attempted to scream or yell
after his airway was occluded; he too was burned on his head, face, and leg.
Each of
the botched executions was sufficiently egregious to halt further executions
and to prompt an extensive official inquiry, complete with an evidentiary
hearing and voluminous testimony by eye witnesses and experts. Each botched
execution also was transformed by the media into a world‑wide spectacle,
telecommunicated throughout the world in lurid and inflammatory detail.
Following
the Tafero execution, the federal district court in Florida addressed the issue
of repeated mishaps:
If a pattern of malfunctions develops, perhaps
even as few as two consecutive or nearly consecutive executions, then it may
become appropriate to consider whether the application of electrocution in
Florida is infected with "an element of cruelty."
Hamblen v.
Dugger, 748 F.Supp. 1498, 1504 (M.D.Fla.1990). The Tafero, Medina, and Davis
executions have now established a pattern of impermissible violence and
mutilation. [FN37]
*24 It is
clear on the record before this Court that execution by electrocution as
carried out in Florida is not limited to "the mere extinguishment of
life" as required under Kemmler, for this method of execution entails
undue violence and mutilation. This is particularly clear in light of the
continuing‑‑and apparently unavoidable‑‑mishaps
involving Florida's electric chair. The punishment that is actually meted out
by DOC officials differs in kind from the simple sentence of death that the
constitution permits and that was recommended by the penalty phase juries and
ordered by the courts. Execution by electrocution as administered by DOC in
Florida violates Kemmler.
B. Electrocution Violates Evolving Standards of
Decency
Execution
by electrocution as administered in Florida also violates the "evolving standards of decency"
criterion for several reasons. First, this practice, which was inaugurated in
New York more than a century ago as a humane alternative to hanging, has been
abandoned by scores of states and is now the sole method of execution in only
three other states.
Electrocution was first adopted by a state as a
method of execution in 1888 and last adopted in 1949, at which time twenty‑six
states used it; since 1949 (i.e., almost half a century ago), no state has adopted
electrocution and twenty states have dropped it; of thirty‑eight states
that currently authorize execution, only six (Alabama, Florida, Georgia,
Kentucky, Nebraska, and Tennessee) require electrocution; of these six, two
(Kentucky and Tennessee) have not executed any prisoners since the United
States Supreme Court lifted its ban on capital punishment in 1976; four
additional states (Arkansas, Ohio, South Carolina, and Virginia) offer
electrocution as an option; of these four, one (Ohio) has not executed any
prisoners since 1976....
Jones, 701
So.2d at 87 (Shaw, J., dissenting). [FN38]
Second,
execution by electrocution is practiced in no other country in the world:
[O]f approximately 140 countries outside the
United States that impose capital punishment, none impose electrocution; in
short, only four governments in the entire world (Alabama, Florida, Georgia,
and Nebraska) impose electrocution exclusively....
Id.
(emphasis omitted). As a postscript, I note that both the Humane Society of the
United States and the American Veterinarian Medical Association condemn
electrocution as a method of euthanasia for animals. See id. Third, other less
cruel methods of execution are available; lethal injection is readily available
(it has already been approved by the Florida Legislature [FN39]) and is
generally considered more humane. [FN40]
And
finally‑‑and most telling‑‑the governmental body
charged with oversight of Florida's execution apparatus, the Florida
Corrections Commission, [FN41] has recommended that Florida switch from
electrocution to lethal injection. In the wake of the botched executions of
Tafero and Medina, the Commission undertook an exhaustive survey of execution
methods in other states and reported to the Governor and Legislature:
*25 We found that almost all states have written
procedures regarding the execution process, and that numerous states had
recently changed to lethal injection from electrocution because it was
considered to be a "more humane method of execution." While the
report notes problems encountered in the past with almost all methods of
execution, including lethal injection, the Commission recommends that Section
922.10, Florida Statutes, be amended to allow lethal injection as an
alternative method of execution, in addition to electrocution, for those
persons currently on a sentence of death. Furthermore, for persons whose crimes
are committed on or after the effective date of such legislation, lethal
injection would be the only method of execution, thereby "phasing out"
the use of the electric chair in Florida.
The Florida Corrections Commission believes that
Florida has an obligation to ensure that modern technologies keep pace with the
level of competence in this area, and, just as changes have occurred in
Florida's past in carrying out the death penalty, changes should again occur.
Jones, 701
So.2d at 82 (Kogan, C.J., dissenting) (quoting letter from commission chairman)
(emphasis omitted and added). Unfortunately, unlike the New York Legislature a
century ago in Kemmler, the Florida Legislature has failed to heed the state's
own experts and switch to the more humane method.
VI. SOLE METHOD OF EXECUTION
Section
922.10, Florida Statutes (1997), provides that a death sentence in Florida
shall be carried out by electrocution:
922.10 Execution of death sentence; executioner.‑‑A
death sentence shall be executed by electrocution. The warden of the state
prison shall designate the executioner.... The warrant authorizing the
execution shall be read to the convicted person immediately before execution.
§ 922.10,
Fla. Stat. (1997). The statutory scheme makes no provision for an alternative
method of execution, unless electrocution is declared unconstitutional. [FN42]
Because
electrocution is the sole means of execution approved for use at this time in
Florida, the constitutional infirmities inherent in this method cannot be
avoided by the availability of a more humane alternative:
Florida's electric chair, by its own track record,
has proven itself to be a dinosaur more befitting the laboratory of Baron
Frankenstein than the death chamber of Florida State Prison. Because
electrocution is the sole means of execution approved for use in Florida, the
legislature has, so to speak, placed all its constitutional eggs in this one
basket. As a result, any infirmity in this method cannot be mitigated at this
time by the presence of an acceptable alternative. Such an all‑or‑nothing
approach has proved fatal to the capital sentencing scheme in other states.
Jones, 701
So.2d at 87‑88 (Shaw, J., dissenting).
Both the
California and Washington legislatures attempted to circumvent this same
problem by implementing a death penalty scheme that offered capital defendants
a choice in method of execution. California's statutory scheme originally offered
a choice in method (lethal gas or injection) but called for the default to fall
to lethal gas. [FN43] After the federal circuit court declared the original
scheme unconstitutional under the federal Cruel and Unusual Punishments Clause
because lethal gas is impermissibly cruel, [FN44] the state sought review in
the United States Supreme Court. The California legislature promptly amended
the statute to allow the default to fall to lethal injection. [FN45] Based on
this legislative action, the United States Supreme Court vacated the circuit
court decision and remanded for reconsideration. [FN46] Subsequently, a
different capital defendant elected to be executed by lethal gas and then
challenged that method anew. The circuit court reaffirmed its earlier ruling
that execution by lethal gas is unconstitutional and enjoined the execution.
[FN47]
*26 In the
State of Washington, the legislature took a similar tack when confronted with
an adverse court ruling concerning its official method of execution‑‑death
by hanging. The Washington scheme originally had offered a choice (death by
hanging or lethal injection), with the default falling to death by hanging.
[FN48] After the federal district court ruled that hanging was unconstitutional
if applied to an inmate who was obese, [FN49] the state appealed. The
Washington Legislature promptly amended the statute to allow the default to
fall to lethal injection, and the federal circuit court dismissed the appeal as
moot. [FN50]
VII. LETHAL INJECTION
Although
electrocution has been the sole method of execution in this state since 1924,
the legislature recently passed legislation that does two things: (1) It
provides that no sentence of death shall be reduced if a method of execution is
declared unconstitutional; and (2) it authorizes the use of lethal injection if
electrocution is declared unconstitutional.
Section
775.082(2), Florida Statutes (1997), [FN51] has been amended to provide that no
sentence of death shall be reduced to life if a method of execution is held to
be unconstitutional:
775.082 Penalties; applicability of sentencing
structures; mandatory minimum sentences for certain reoffenders previously
released from prison.‑‑
(1) A person who has been convicted of a capital
felony shall be punished by death if the proceeding held to determine sentence
according to the procedure set forth in s. 921.141 results in findings by the
court that such person shall be punished by death, otherwise such person shall
be punished by life imprisonment and shall be ineligible for parole.
(2) In the event the death penalty in a capital
felony is held to be unconstitutional by the Florida Supreme Court or the
United States Supreme Court, the court having jurisdiction over a person
previously sentenced to death for a capital felony shall cause such person to
be brought before the court, and the court shall sentence such person to life
imprisonment as provided in subsection (1). No sentence of death shall be
reduced as a result of a determination that a method of execution is held to be
unconstitutional under the State Constitution or the Constitution of the United
States.
§
775.082(1)‑(2), Fla. Stat. (Supp.1998) (emphasis added).
Although
section 922.10, Florida Statutes (1997) (calling for execution by
electrocution), [FN52] remains unchanged, chapter 922 has been amended to
provide that if electrocution is held to be unconstitutional, then all capital
defendants shall be executed by lethal injection:
922.105 Execution of death sentence by lethal
injection if death by electrocution is declared unconstitutional; prohibition
against reduction of death sentence as a result of determination that a method
of execution is unconstitutional.‑‑
(1) A death sentence shall be executed by
electrocution pursuant to s. 922.10. If electrocution is held to be
unconstitutional by the Florida Supreme Court under the State Constitution, or
held to be unconstitutional by the United States Supreme Court under the United
States Constitution, or if the United States Supreme Court declines to review
any judgment holding electrocution to be unconstitutional under the United
States Constitution made by the Florida Supreme Court or the United States
Court of Appeals that has jurisdiction over Florida, all persons sentenced to
death for a capital crime shall be executed by lethal injection.
*27 (2) The provisions of the opinion and all
points of law decided by the United States Supreme Court in Malloy v. South
Carolina, 237 U.S. 180[, 35 S.Ct. 507, 59 L.Ed. 905] (1915), finding that the
Ex Post Facto Clause of the United states Constitution is not violated by a
legislatively enacted change in the method of execution for a sentence of death
validly imposed for previously committed capital murders, are adopted by the
Legislature as the law of this state.
(3) A change in the method of execution does not
increase the punishment or modify the penalty of death for capital murder. Any
legislative change to the method of execution for the crime of capital murder
does not violate s. 10, Art. I or s. 9, Art X of the State Constitution.
....
(6) Notwithstanding s. 775.082(2), s.
775.15(1)(a), or s. 790.161(4), or any other provision to the contrary, no
sentence of death shall be reduced as a result of a determination that a method
of execution is declared unconstitutional under the State Constitution or the
Constitution of the United States. In any case in which an execution method is
declared unconstitutional, the death sentence shall remain in force until the
sentence can be lawfully executed by any valid method of execution.
§ 922.105,
Fla. Stat. (Supp.1998) (emphasis added).
The
question posed in the present case is whether retroactive application of these
statutory changes violates ex post facto principles. I conclude that it does
not, based on Malloy v. South Carolina, 237 U.S. 180, 35 S.Ct. 507, 59 L.Ed.
905 (1915). There, South Carolina sought to apply its newly enacted method of
execution, electrocution, to a defendant whose crime had been committed before
the effective date of the new statute. The statute in effect at the time of the
crime had called for death by hanging. The United States Supreme Court held
that retroactive application of the more humane method of execution did not
violate ex post facto concerns. I would apply Malloy to the present case and
allow Provenzano's sentence to be carried out by lethal injection. [FN53]
VIII. CONCLUSION
Execution
by electrocution‑‑with its attendant smoke and flames and blood and
screams‑‑is a spectacle whose time has passed. The fiery deaths of
Jesse Tafero and Pedro Medina and the recent bloody execution of Allen Lee
Davis are acts more befitting a violent murderer than a civilized state. The
color photos of Davis depict a man who‑‑for all appearances‑‑was
brutally tortured to death by the citizens of Florida. Violence begets
violence, and each of these deaths was a barbaric spectacle played by the State
of Florida on the world stage. Each botched execution cast the entire criminal
justice system of this state‑‑ including the courts‑‑in
ignominy.
The United
States Constitution stands before the world not as a dark testament to wanton,
state‑sponsored violence and mutilation, but rather‑‑in the
spirit of the founding fathers‑‑as an enduring beacon of light and
hope and justice. The United States Supreme Court has ruled that a principal
purpose of the Cruel and Unusual Punishments Clause is
*28 to protect the dignity of society itself from
the barbarity of exacting mindless vengeance.
Ford v.
Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). Our Constitution‑‑this
nation's sacred charter‑‑abides as a paragon of all that is good
and decent in the law, a shining example for the world to follow.
Only three
other states in the union‑‑Alabama, Georgia and Nebraska‑‑continue
to follow Florida's lead in requiring electrocution as the sole means of
execution. Scores of states have abandoned this practice. No other country in
the world uses electrocution as a means of execution. The State's own
preeminent experts in this field‑‑i.e., DOC's advisory committee‑‑have
recommended that Florida forsake this outdated practice in favor of lethal
injection. There comes a time when the Constitution must say "enough is
enough."
I would
direct that the sentence in the present case be carried out by lethal injection
as prescribed by statute.
ANSTEAD,
J., concurs.
(POST‑EXECUTION PHOTOS OF ALLEN LEE DAVIS
WILL BE APPENDED TO THIS DISSENTING
OPINION OF SHAW, J.)
ANSTEAD,
J., dissenting.
I concur
in the scholarly opinions of Justice Shaw and Justice Pariente. I also commend
the opinion of Chief Justice Harding which, while contrary to my own on the
constitutional issues in question, makes out a compelling case for abandoning
electrocution as a method of enforcing the death penalty.
The views
of the Chief Justice, Justice Shaw, and Justice Pariente are deeply rooted in
the jurisprudence of the U.S. Supreme Court and of this Court. Perhaps no
jurist has more eloquently made the same point than our own Justice Ervin in
his dissenting opinion in this Court's landmark case of State v. Dixon:
The nation's highest court recognizes we have come
a long way from the rack, the "drawing and quartering," the
headsman's axe, the public executions, the "hanging judge"‑from
cruel and unusual punishments. We can little afford to turn back because it is
clear to thinking people that brutality and cruelty at the hands of government
soils the fabric of an enlightened nation. Governments are constantly under
scrutiny‑constantly gauged by a nation's thinking people in terms of
whether they are enlightened and humane; of whether they are still instruments
of oppression, perpetuators of archaic punishments to allay the fears and
passions of privileged groups.
State v.
Dixon, 283 So.2d 1, 23 (Fla.1973) (Ervin, J., dissenting). Justice Ervin's words
seem perfectly suited to today's debate on whether the continuing use of the
electric chair constitutes cruel or unusual punishment. His words also strike a
chilling chord today because we are presented with a record and graphic
evidence, including photographs, of the horror of Florida's most recent use of
the electric chair.
CRUEL OR UNUSUAL
An obvious
failing of the majority opinion is its apparent unwillingness to directly
confront and explain the Florida Constitution's prohibition of cruel or unusual
punishments and the ban of cruel and unusual punishments in the U.S.
Constitution. [FN54] If the majority did so it would surely have to conclude
that at the very least punishing someone by the direct application of lethal
doses of electricity to various parts of the body is a highly unusual method of
punishment, whether considered years ago when our constitutions were approved,
or considered today. In fact, the United States Supreme Court has quoted with
approval an opinion of the New York Court of Appeals characterizing
electrocution as "certainly unusual". In re Kemmler, 136 U.S. 436,
443‑44, 10 S.Ct. 930, 34 L.Ed. 519 (1890). Electrocution is simply not a
"usual" form of punishment, and it cannot somehow be made
"usual" by its continued use. If we were to allow an
"unusual" punishment to become "usual" simply by its
repeated usage then we simply would be editing out the ban on unusual
punishments in the Florida Constitution.
*29
Determining whether electrocution is a cruel punishment requires more analysis.
Arguably, for example, electrocution may not have been considered cruel when it
was first introduced in the nineteenth century, because it was then compared to
death by hanging and considered more humane thanhanging. In fact, the U.S.
Supreme Court expressly relied upon findings that electrocution would be more
humane than hanging in refusing to interfere with New York's decision to
abandon hanging (as a barbaric practice from the dark ages) in favor of the
more humane electrocution. In re Kemmler. Based on the prevailing culture and
knowledge at the time, and the urgency to do away with hanging, it is easy to
understand why electrocution may not have been considered constitutionally
cruel. However, just 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.
As noted
above, In re Kemmler was decided in the context of a state's attempt to find a
more humane means of death than hanging. However, it is also important to note
that the case was decided before electrocution had actually been used. Because
we know that lethal injection provides a more humane alternative, and, because
we now know from actual experience that electrocution always involves
mutilation (within and without the body) and a substantial risk of malfunction
(including external burning, bleeding, asphyxiation, etc.), as well as a
culture of cruelty ("burn 'em", "fry 'em"), it is apparent
that electrocution has become a cruel and senseless punishment, especially when
evaluated in light of our evolving standards of decency. Hopefully, just as
those who reflected back on the history of hanging at the close of the
nineteenth century and concluded it was inhumane, we now, at the close of the
twentieth century, have an even more informed and enlightened view of
acceptable punishments upon which to evaluate death by electrocution.
In Justice
Shaw's opinion he again notes that for humane reasons we as a society have
rejected the use of electrocution even for the killing of animals. That simple
but eloquent observation perhaps speaks more directly to the heart of the issue
before us than any other argument. In effect, we have found the killing of
animals by electrocution to be inhumane and uncivilized. We know, as the State
has candidly conceded, that the entire process of death by electrocution is at
least "somewhat ghastly". We also know, as aptly explained by Chief
Justice Harding, that a more humane means of taking life is readily available
to the State. Under those circumstances, our continuing embrace of a savage and
inhumane means of taking life does a disservice to our justice system and our
society. [FN55]
SHAW, J.,
concurs.
PARIENTE,
J., dissenting.
*30 I
write to explain the reasons I am compelled to dissent in this case. The
subject of the debate presented by this case is not whether the death penalty
is a constitutionally permissible punishment for those in this State who commit
the most aggravated and least mitigated crimes, such as Allen Lee Davis and
Thomas Provenzano. Thus, this case does not have to do with the legislative
prerogative to specify the punishment for the crime‑‑whether it be
death, life in prison, or a sentence of a definite number of years in prison.
Rather,
the subject of the legal debate before this Court solely concerns the scope of
the legislative prerogative to select one method of execution over another.
Thus, the issue in this case is not whether Provenzano should be executed; only
how he should be executed. [FN56] It is without question that the legislative
prerogative to choose a given method of execution must be judged by the
prohibition against the infliction of cruel and unusual punishment found in the
Florida and federal constitutions. See U.S. Const., amend. VIII; art. I, § 17,
Fla. Const.
As the
United States Supreme Court stated in Wilkerson v. Utah, 99 U.S. (9 Otto) 130,
133, 25 L.Ed. 345 (1878), although the legislative branch may define crimes and
"prescribe the punishment of the offenders," this power is
"subject to the prohibition of the Constitution that cruel and unusual
punishments shall not be inflicted." (Emphasis supplied.) Almost one
hundred years later, this principle was reiterated: "It seems conceded by
all that the Amendment imposes some obligations on the judiciary to judge the
constitutionality of punishment and that there are punishments that the
Amendment would bar whether legislatively approved or not." Gregg v.
Georgia, 428 U.S. 153, 174, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (quoting
Furman v. Georgia, 408 U.S. 238, 313‑14, 92 S.Ct. 2726, 33 L.Ed.2d 346
(1972) (White, J., concurring)). [FN57]
"[T]he Constitution contemplates that in the end [a court's]
own judgment will be brought to bear on the question of the acceptability"
of a challenged punishment, guided by "objective factors to the maximum
possible extent." Coker v. Georgia, 433 U.S. 584, 592, 597, 97 S.Ct. 2861,
53 L.Ed.2d 982 (1977) (plurality opinion). Thus, the Court must exercise its
own judgment as to whether a method of execution is cruel and unusual in order
to enforce the requirement of the Eighth Amendment that cruel and unusual
punishment not be inflicted.
To
determine whether electrocution constitutes cruel and unusual punishment, we
must first consider what the United States Supreme Court has considered to be
the purpose and scope of the Eighth Amendment's prohibition against cruel and
unusual punishment. As explained in Trop v.Dulles, 356 U.S. 86, 101, 78 S.Ct.
590, 2 L.Ed.2d 630 (1958), the Eighth Amendment must draw its "meaning
from the evolving standards of decency that mark the progress of a maturing
society."
*31
Perhaps the most concise discussion of the scope of the Eighth Amendment is set
forth in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976):
It suffices to note that the primary concern of
the drafters [of the Eighth Amendment] was to proscribe "torture(s)" and
other "barbar(ous)" methods of punishment. Accordingly, this Court
first applied the Eighth Amendment by comparing challenged methods of execution
to concededly inhuman techniques of punishment....
Our more recent cases, however, have held that the
Amendment proscribes more than physically barbarous punishments. The Amendment
embodies "broad and idealistic concepts of dignity, civilized standards,
humanity, and decency ...," against which we must evaluate penal measures.
Thus, we have held repugnant to the Eighth Amendment punishments which are
incompatible with "the evolving standards of decency that mark the
progress of a maturing society" or which "involve the unnecessary and
wanton infliction of pain."
Id. at
102, 97 S.Ct. 285 (citations omitted) (emphasis supplied). This clause has an
"expansive and vital character." Glass v. Louisiana, 471 U.S. 1080,
1083, 105 S.Ct. 2159, 85 L.Ed.2d 514 (1985) (Brennan, J., dissenting from
denial of certiorari) (quoting Weems v. United States 217 U.S. 349, 377, 30 S.Ct.
544, 54 L.Ed. 793 (1910)). "[T]he Amendment has been interpreted in a
flexible and dynamic manner." Gregg, 428 U.S. at 171, 96 S.Ct. 2909. As
concepts of civility and dignity evolve, so do the limits of what constitutes
cruel and unusual punishment. See Dulles, 356 U.S. at 100, 78 S.Ct. 590.
Accordingly, Eighth Amendment issues must be evaluated "in light of
contemporary human knowledge," Robinson v. California, 370 U.S. 660, 666,
82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), rather than "in reliance on century‑old
factual premises that may no longer be accurate." Glass, 471 U.S. at 1083,
105 S.Ct. 2159 (Brennan, J., dissenting from denial of certiorari). These broad
statements of constitutional principles apply with equal force to determine the
legality of a method of execution. See Campbell v. Wood, 511 U.S. 1119, 1121,
114 S.Ct. 2125, 128 L.Ed.2d 682 (1994) (Blackmun, J., dissenting from denial of
certiorari) (explaining that the United States Supreme Court has never
"distinguished between challenges to the proportionality and method of
capital punishment").
In holding
that the absence of conscious pain after the electrical current is administered
ends the judicial inquiry into whether electrocution is unconstitutional, the
majority decision in this case relies on our opinion in Jones v. State, 701
So.2d 76, 79 (Fla.1997), cert. denied, ‑‑‑ U.S. ‑‑‑‑,
118 S.Ct. 1297, 140 L.Ed.2d 335 (1998). Jones in turn cites to Gregg v.
Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), Louisiana ex. rel
Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947), and
Campbell v. Wood, 18 F.3d 662 (9th Cir.1994). However, no such narrow and
conclusive statement can be derived from those cases.
*32 The
fact that the method of execution may result in instantaneous death, while an
important factor to consider, does not end the judicial inquiry into whether
the method of punishment is cruel and unusual. Analyzing the constitutionality
of punishment under the Eighth Amendment, the Supreme Court in Gregg also stated
that a "penalty also must accord with 'the dignity of man,' which is the
'basic concept underlying the Eighth Amendment.' " 428 U.S. at 173, 96
S.Ct. 2909 (quoting Dulles, 356 U.S. at 100, 78 S.Ct. 590).
Further,
the Campbell decision relied on the following statement in Glass:
What are the objective factors by which courts
should evaluate the constitutionality of a challenged method of punishment?
First and foremost, the Eighth Amendment prohibits "the unnecessary and
wanton infliction of pain." Gregg v. Georgia, supra, at 173[, 96 S.Ct.
2909], (opinion of Stewart, Powell, and Stevens, JJ.). See also Coker v.
Georgia, supra, at 592[, 97 S.Ct. 2861], (plurality opinion) (a punishment is
excessive if it is "nothing more than the purposeless and needless
imposition of pain and suffering"); Louisiana ex rel. Francis v. Resweber,
329 U.S. 459, 463[, 67 S.Ct. 374, 91 L.Ed. 422] (1947) ("The traditional
humanity of modern Anglo‑American law forbids the infliction of
unnecessary pain in the execution of the death sentence"). The Court has
never accepted the proposition that notions of deterrence or retribution might
legitimately be served through the infliction of pain beyond that which is
minimally necessary to terminate an individual's life.
Glass, 471
U.S. at 1084, 105 S.Ct. 2159 (Brennan, J., dissenting from denial of
certiorari) (emphasis supplied), cited in Campbell, 18 F.3d at 682. However,
Campbell failed to cite to the remainder of Justice Brennan's explanation in
Glass that the contours of the Eighth Amendment extend beyond whether there is
conscious pain inherent in the method of execution:
The Eighth Amendment's protection of "the
dignity of man," Trop v. Dulles, supra, at 100[, 78 S.Ct. 590], (plurality
opinion), extends beyond prohibiting the unnecessary infliction of pain when
extinguishing life. Civilized standards, for example, require a minimization of
physical violence during execution irrespective of the pain that such violence
might inflict on the condemned. See, e.g., Royal Commission on Capital
Punishment, 1949‑1953 Report ¶ 732, p. 255 (1953) (hereinafter Royal
Commission Report). Similarly, basic notions of human dignity command that the
State minimize "mutilation" and "distortion" of the
condemned prisoner's body. Ibid. These principles explain the Eighth
Amendment's prohibition of such barbaric practices as drawing and quartering.
See, e.g., Wilkerson v. Utah, supra, at 135.
*33 Glass,
471 U.S. at 1085, 105 S.Ct. 2159 (Brennan, J., dissenting from denial of
certiorari). Thus, the Eighth Amendment also requires that the method of
execution minimize physical violence as well as mutilation and distortion of
the human body.
Therefore,
my conclusion differs from the majority because I fail to see how United States
Supreme Court precedent allows us to limit our constitutional inquiry to the
presence or absence of conscious pain. Even the concurring opinion of Justice
Quince recognizes that the "real question" is whether electrocution
violates the "evolving standards of decency." Concurring opinion of
Quince, J., at 17. In apparent recognition that the constitutional inquiry is
not so limited, the State conceded in oral argument that the guillotine would
not pass constitutional muster today, even though it most likely results in an
instantaneous death without the defendant suffering conscious pain.
No one
seriously disagrees that as of the end of the twentieth century, lethal
injection is a more humane method of execution and creates far less a spectacle
than electrocution. It is less physically violent and minimizes mutilation of
the body. No one seriously disagrees that electrocution was originally selected
by the State of New York in 1885 in lieu of hanging because at that time the
executive and legislative branches affirmatively determined that electrocution
was the "most humane and practical method known to modern science of
carrying into effect the sentence of death in capital cases." In re
Kemmler, 136 U.S. 436, 444, 10 S.Ct. 930, 34 L.Ed. 519 (1890). There is no
indication that the legislative decision in 1999 to retain electrocution,
contrary to the recommendations of the Florida Corrections Commission, was
based on objective evidence that this method was more humane than lethal
injection or other alternative methods. [FN58]
The Legislature
does not have the prerogative to select a method of execution that is
inherently cruel, violent and mutilating when more humane methods exist. The
State's only legitimate interest is in the extinguishment of life. Indeed, the
State has not made the argument in this case that the Legislature has the
"right" to make the execution more violent and more cruel than
necessary to extinguish the lives of those sentenced to death.
In
determining whether electrocution comports with "evolving standards of decency,"
we should consider the fact the Florida Corrections Commission recommended that
the electric chair be phased out as a method of execution in favor of lethal
injection because it "believes that Florida has an obligation to ensure
that modern technologies keep pace with the level of competence in this area,
and, just as changes have occurred in Florida's past in carrying out the death
penalty, changes should again occur." Jones, 701 So.2d at 82 (Kogan, C.J.,
dissenting) (quoting Florida Corrections Comm'n, Supplemental Report on
Execution Methods Used by States (1997)).
*34 We
cannot ignore the objective evidence that almost every state that authorizes
the death penalty has either selected or changed its method to lethal injection‑‑some
in response to the botched executions of Medina and Tafero. While the fact that
only three other states (Georgia, Alabama, and Nebraska [FN59]) retain
electrocution as the sole method of execution is not determinative of the
constitutional question, this fact bears on the exercise of the Court's
judgment as to whether the method of punishment violates contemporary standards
of decency. See Gregg, 428 U.S. at 172‑76, 96 S.Ct. 2909.
In
addition, we must look at the actual experience in recent years with the
electric chair. Recent executions have revealed one problem after another.
[FN60] Flames spewed from the heads of Medina and Tafero. See Jones, 702 So.2d
at 85‑86. The cause was found to be an improper sponge. See id. at 86.
After two flaming executions, the sponges were replaced and the flames ceased.
However, it is undisputed that despite all of the best efforts, electrocution
will result in burning of parts of the body. In fact, all of the inmates in the
last executions have sustained outward burns to their bodies. Thus, burning is
inherent in the method of the execution.
It is
undisputed that, despite all best efforts, inmates have been observed breathing
after the electric current has ceased. This indicates that brain stem activity
has continued even after the application of electrical current. Now with the
last execution, there is a serious question as to whether the mouth piece
partially asphyxiated Davis, which resulted in bloody side show‑‑a
spectacle more befitting of a "B" Hollywood horror movie than a state‑
sanctioned execution.
Although a
factual finding has been made by two different circuit court judges that
Florida's electric chair causes no conscious pain, these factual findings need
only be made by a preponderance of the evidence. Despite our deferential
standard of review to trial court's factual findings, the expert testimony
submitted by Provenzano and the witness accounts of survival after
electrocution raise serious questions that judicial electrocution does in fact
involve conscious pain and suffering. See generally Glass, 471 U.S. at 1086‑
87, 105 S.Ct. 2159 (Brennan, J., dissenting from denial of certiorari)
("There is considerable empirical evidence and eyewitness testimony ...
[that] suggests that death by electrical current is extremely violent and
inflicts pain and indignities far beyond the 'mere extinguishment of life.'
"). We cannot simply ignore this evidence.
As Justice
Brennan observed, "[I]t is firmly within the 'historic process of
constitutional adjudication' for courts to consider, through a 'discriminating
evaluation' of all available evidence, whether a particular means of carrying
out the death penalty is 'barbaric' and unnecessary in light of currently
available alternatives." Id. at 1084, 105 S.Ct. 2159 (quoting Furman, 408 U.S.
at 420, 92 S.Ct. 2726 (Powell, J., dissenting)) (emphasis supplied). [FN61] All
of this leads to the conclusion that this method of execution does not comport
with "evolving standards of decency," Trop, 356 U.S. at 101, 78 S.Ct.
590, based on an evaluation of "objective factors." Coker, 433 U.S.
at 592, 97 S.Ct. 2861.
*35
"The cruelty against which the Constitution protects a convicted man is
cruelty inherent in the method of punishment, not the necessary suffering
involved in any method employed to extinguish life humanely." Resweber,
329 U.S. at 464, 67 S.Ct. 374 (emphasis supplied). Certainly, knowledge of
death involves fear, which is inevitable with all impending executions.
However, all of the other troubling aspects of recent electrocutions‑‑the
flames, the blood, the screams, theburning, and the resulting spectacle of the
actual execution‑‑ indicate to me that there is cruelty, violence
and mutilation inherent in this method of execution.
In
enacting the Eighth Amendment, the founders of this Nation determined that, as
a civilized nation, we would not allow the State to become the instrument of
cruelty and violence in the methods chosen to punish those who violated the
law. This enduring constitutional principle applies no matter how great our
desire as individuals for vengeance and no matter how cruel, how ghastly, or
how violently the innocent victims died.
We do not
have to wait another fifty years to determine that in 1999, electrocution is
not only unusual, since only three states including Florida currently execute
its death‑sentenced offenders solely by electrocution, but it is also
inherently cruel as involving mutilation and violence. Electrocution, as a
method of carrying out the State's legitimate interest in imposing the ultimate
penalty of death, has become incompatible with the concepts of "dignity,
civilized standards, humanity, and decency" that embody the essence of the
Eighth Amendment. Estelle, 429 U.S. at 102, 97 S.Ct. 285. History and this
Court's recent experience with the electric chair all point to this inevitable
conclusion. Just as the guillotine, public hanging and death by firing squad
would be deemed barbaric relics of another era, so must electrocution be
declared unconstitutional as violative of the Eighth Amendment's clear
prohibition that cruel and unusual punishment not be inflicted.
ANSTEAD,
J., concurs.
FN1. Provenzano claims that the circuit court
erred in ruling that the testimony of two potential witnesses (Thomas Crapps
and Richard Martell) was precluded. Provenzano also claims that the circuit
court erred in sustaining the State's objections to questions concerning
certain testimony from witnesses Rabbani Muhammed and A.D. Thornton.
FN2. This supposed more "humane" method
of execution has come under Eighth Amendment attack and I suspect will generate
even more litigation over the next few years. See Hunt v. Smith, 856 F.Supp.
251 (D.Md.1994), aff'd sub nom. Hunt v. Nuth, 57 F.3d 1327 (4th Cir.1995).
FN3. Only one state, Utah, uses the firing squad
as its method of judicial execution.
FN4. The use of electrocution as the sole method
of judicial execution is now
used in only four states: Alabama, Georgia, Florida and Nebraska.
FN5. Lethal gas as a judicial method of execution
is provided for in several states, including: Missouri and North Carolina. Both
Maryland and California have now changed to lethal injection as the method of
execution.
FN6. Hanging as a method of execution takes place
in only Washington and Montana, and in both states, lethal injection can be
chosen by the defendant.
FN7. In Hunt v. Nuth, 57 F.3d 1327, 1338 (4th
Cir.1995), the circuit court did not address, based on mootness grounds, the
defendant's argument that execution by lethal injection violated the Eighth
Amendment prohibition against cruel and unusual punishment because lethal
injection violated federal drug laws and could inflict cruel and inhumane
treatment as a result of botched executions.
FN8. The district court in Fierro v. Gomez, 865
F.Supp. 1387 (N.D.Cal.1994), vacated sub nom. Fierro v. Terhune, 147 F.3d 1158
(9th Cir.1998), declared unconstitutional the California statute that required or permitted execution by lethal gas.
FN9. See Jones v. State, 701 So.2d 76 (Fla.1997),
cert. denied, ‑‑‑ U.S. ‑‑‑‑, 118
S.Ct. 1297, 140 L.Ed.2d 335 (1998).
FN10. See § 922.105(1), Fla. Stat. (Supp.1998)
("If electrocution is held to be unconstitutional ... all persons
sentenced to death for a capital crime shall be executed by lethal
injection.").
FN11. See Jones v. Butterworth, 691 So.2d 481, 482
(Fla.1997) ("The claim that execution by electrocution is unconstitutional
per se is hereby denied as procedurally barred as it could have been raised in
previous petitions for relief." (Emphasis added.)).
FN12. See, e.g., White v. State, 729 So.2d 909,
911 & n. 4 (Fla.1999)(rejecting the constitutionality issue "as
without merit"); Remeta v. State, 710 So.2d 543, 546 (Fla.)(stating that
defendant was entitled to "no relief" on the constitutionality
issue), cert. denied, ‑‑‑ U.S. ‑‑‑‑, 118
S.Ct. 1383, ‑‑‑ L.Ed.2d ‑‑‑‑ (1998);
Elledge v. State, 706 So.2d 1340, 1347 & n. 9 (Fla.1997)(stating that the constitutionality issue had
"already been decided adversely to Elledge"), cert. denied, ‑‑‑
U.S. ‑‑‑‑, 119 S.Ct. 366, 142 L.Ed.2d 303 (1998);
Pooler v. State, 704 So.2d 1375, 1381 (Fla.1997)(noting that the claim had been
"previously rejected ... as meritless"), cert. denied, ‑‑‑
U.S. ‑‑‑‑, 119 S.Ct. 119, 142 L.Ed.2d 96 (1998);
Hoskins v. State, 702 So.2d 202, 208 (Fla.1997)(rejecting the claim as
"without merit" and noting the claim had been "repeatedly
rejected" by this Court); Consalvo v. State, 697 So.2d 805, 811‑12
(Fla.1996)(noting that the claim had been "previously rejected by this
Court and do[es] not require additional discussion"), cert. denied, ‑‑‑
U.S. ‑‑‑‑, 118 S.Ct. 1681, 140 L.Ed.2d 819 (1998);
Hunter v. State, 660 So.2d 244, 253 (Fla.1995)(ruling that the issue was
procedurally barred, but even if not barred the issue had been rejected
previously); Fotopoulos v. State, 608 So.2d 784, 794 & n. 7
(Fla.1992)(finding that the claim was procedurally barred, but even if not
barred the claim "lack[ed] merit").
FN13. Prior to Kemmler, the United States Supreme
Court addressed (with approval) shooting as a method of execution in the Territory
of Utah. See Wilkerson v.Utah, 99 U.S. (9 Otto) 130, 25 L.Ed. 345 (1878).
FN14. See generally Poyner v. Murray, 508 U.S.
931, 933, 113 S.Ct. 2397, 124 L.Ed.2d 299 (1993) (Souter, J., joined by
Blackmun and Stevens, JJ., dissenting from denial of certiorari) ("The
Court has not spoken squarely on the underlying issue since In re Kemmler, and
the holding of that case does not constitute a dispositive response to
litigation of the issue in light of modern knowledge about the method of
execution in question."). I note that Kemmler was decided on a limited
evidentiary basis‑‑no one had yet been executed by electrocution.
FN15. The Cruel and Unusual Punishments Clause was
inapplicable to the states at that time. See Kemmler, 136 U.S. at 446, 10 S.Ct.
930; See also Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d
758 (1962) (extending the Eighth Amendment to the states via the Fourteenth
Amendment).
FN16. Justice Brennan addressed this issue in
Glass v. Louisiana, 471 U.S. 1080, 105 S.Ct. 2159, 85 L.Ed.2d 514 (1985),
reaffirming the Kemmler standard:
The Court has never accepted the proposition that
notions of deterrence or retribution might legitimately be served through the
infliction of pain beyond that which is
minimally necessary to terminate an individual's life. Thus in explaining the
obvious unconstitutionality of such ancient practices as disembowelling while
alive, drawing and quartering, public dissection, burning alive at the stake,
crucifixion, and breaking at the wheel, the Court has emphasized that the
Eighth Amendment forbids "inhuman and barbarous" methods of execution
that go at all beyond "the mere extinguishment of life" and cause
"torture or a lingering death." It is beyond debate that the Amendment
proscribes all forms of "unnecessary cruelty" that cause gratuitous
"terror, pain, or disgrace."
Glass, 471 U.S. at 1084, 105 S.Ct. 2159 (Brennan,
J., dissenting from denial of certiorari) (citation and footnote omitted); See
also Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)
("[T]he punishment must not involve the unnecessary and wanton infliction
of pain.").
FN17. See generally Louisiana ex rel. Francis v.
Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 91 L.Ed. 422 (1947) ("The
cruelty against which the Constitution protects a convicted man is cruelty
inherent in the method of punishment, not the necessary suffering involved in
any method employed to extinguish life humanely.").
FN18. The United States Court of Appeals, Ninth
Circuit, described the effects of lethal gas as applied in California:
[I]nmates who are put to death in the gas chamber
at San Quentin do not become immediately unconscious upon the first breath of
lethal gas.... [A]n inmate probably remains conscious anywhere from 15 seconds
to one minute, and ... there is a substantial likelihood that consciousness, or
a waxing and waning of consciousness, persists for several additional minutes.
During this time, ... inmates suffer intense, visceral pain, primarily as a
result of lack of oxygen to the cells. The experience of "air hunger"
is akin to the experience of a major heart attack, or to being held under
water. Other possible effects of the cyanide gas include tetany, an exquisitely
painful contraction of the muscles, and painful build‑up of lactic acid
and adrenaline. Cyanide‑induced cellular suffocation causes anxiety,
panic, terror, and pain.
Fierro v. Gomez, 77 F.3d 301, 308 (9th
Cir.)(quoting Fierro v. Gomez, 865 F.Supp. 1387, 1404 (N.D.Cal.1994)), vacated
and remanded for reconsideration, 519 U.S. 918, 117 S.Ct. 285, 136 L.Ed.2d 204
(1996), remanded, Fierro v. Terhune, 147 F.3d 1158 (9th Cir.1998).
FN19. See generally Kristina E. Beard, Comment,
Five Under the Eighth: Methodology Review and the Cruel and Unusual Punishments
Clause, 51 U. Miami L.Rev. 445, 465 (1997) ("By most accounts, lethal
injection involves minimal pain, and there is little apparent violence or
bodily mutilation.").
FN20. See also Campbell v. Wood, 511 U.S. 1119,
114 S.Ct. 2125, 2127, 128 L.Ed.2d 682 (1994) (Blackmun, J., dissenting from
denial of certiorari) ("[P]ainless, post mortem punishments such as public
display, drawing and quartering, and mutilation also violate the Eighth
Amendment."); Rupe v. Wood, 863 F.Supp. 1307, 1315 (W.D.Wash.1994) (
"Supreme Court cases discussing the history of the Eighth Amendment make
clear that decapitation and similar mutilation, even if accomplished after
death and thus perhaps without 'unnecessary and wanton infliction of pain,'
offend basic human dignity."); Thomas v. Jones, 742 F.Supp. 598, 603
(S.D.Ala.1990) ("Every case the Court reviewed dealing with electrocution
acknowledged that painful electrocution, or excessive burning and
mutilationmight violate the Eighth Amendment." (Emphasis added.)).
FN21. See generally Robert J. Sech, Note, Hang 'Em
High: A Proposal for Thoroughly
Evaluating the Constitutionality of Execution Methods, 30 Val. U.L.Rev. 381
(1995).
FN22. See Weems v. United States, 217 U.S. 349,
373, 30 S.Ct. 544, 54 L.Ed. 793 (1910) ("In the application of a constitution,
therefore, our contemplation cannot be only of what has been, but of what may
be.").
FN23. The Court in Trop held that forced
relinquishment of citizenship as punishment for misconduct while in the
military violates the Eighth Amendment.
FN24. See, e.g., Penry v. Lynaugh, 492 U.S. 302,
109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (holding that it is not cruel and
unusual to execute the mentally retarded); Ford v. Wainwright, 477 U.S. 399,
106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (holding that it is cruel and unusual to
execute the insane); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73
L.Ed.2d 1140 (1982) (holding the death penalty disproportionately cruel and
unusual when imposed for aiding and abetting a robbery resulting in murder);
Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (holding
the death penalty disproportionately cruel and unusual when imposed for the crime of rape).
FN25. See, e.g., Coker.
FN26. See, e.g., Trop.
FN27. Justice Powell noted the following in Furman
v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972):
Neither the Congress nor any state legislature
would today tolerate pillorying, branding, or cropping or nailing of the ears‑‑punishments
that were in existence during our colonial era. Should, however, any such
punishment be prescribed, the courts would certainly enjoin its execution.
Likewise, no court would approve any method of implementation of the death
sentence found to involve unnecessary cruelty in light of presently available
alternatives.
Id., 408 U.S. at 430, 92 S.Ct. 2726 (Powell, J.,
dissenting) (citation and footnote omitted) (emphasis added). Justice Powell's
views in Furman were largely adopted by the Court in Gregg v. Georgia, 428 U.S.
153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
FN28. In two additional cases, the federal circuit
court reviewed a method of execution but did not conduct an in‑depth
constitutional analysis. In both cases, there had been no evidentiary hearing
below, and the circuit court deferred to precedent approving the method under
review. See Hunt v. Nuth, 57 F.3d 1327 (4th Cir.1995) (upholding lethal gas in
Maryland); Gray v. Lucas, 710 F.2d 1048 (5th Cir.1983) (upholding lethal gas in
Mississippi).
FN29. Under the Washington scheme at that time, a
defendant could choose the method of execution, either hanging or lethal
injection, with the default falling to hanging. See Wash. Rev.Code 10.95.180(1)
(1994). This statute was later amended to allow the default to fall to lethal
injection. See Wash. Rev.Code 10.95.180(1) (1994).
FN30. But see Rupe v. Wood, 863 F.Supp. 1307
(W.D.Wash.1994) (holding that execution by hanging under the Washington
protocol presented a substantial risk of decapitation for Rupe, who was obese,
and thus violated the Cruel and Unusual Punishments Clause). The district
court's decision in Rupe was vacated on appeal after the Washington Legislature
amended the statute (which offered a choice of method‑‑hanging or
lethal injection‑‑with
the default falling to hanging) to allow the default to fall to lethal
injection. See Rupe v. Wood, 93 F.3d 1434 (9th Cir.1996).
FN31. Westley Allan Dodd was the only person to be
executed by hanging in the United States since 1963. See Campbell, 18 F.3d at
700 (Reinhardt, J., dissenting).
FN32. But see Campbell v. Wood, 511 U.S. 1119,
1120‑21, 114 S.Ct. 2125, 128 L.Ed.2d 682 (1994) (Blackmun, J.,
dissenting) (contending that the Ninth Circuit should have conducted an
analysis under the "evolving standards of decency" criterion).
FN33. Under the California scheme at that time, a
defendant could choose the method of execution, either lethal gas or injection,
with the default falling to lethal gas. Cal.Penal Code § 3604(b) (West
Supp.1995). This statute was later amended to allow the default to fall to lethal
injection. Cal.Penal Code § 3604(b) (West Supp.1996).
FN34. See generally Jones, 701 So.2d at 82‑88
(Shaw, J., dissenting).
FN35. The "mouth‑strap" in fact
appears to be a weight‑lifter's belt or some such item. In the photos,
the belt is turned backwards, so that the wide portion, which normally would
support the back of the weight lifter, is placed over Davis' face. The belt is
then run behind two wood rails at the back of the electric chair and buckled
behind the chair.
FN36. See Thomas v. Jones, 742 F.Supp. 598, 603
(S.D.Ala.1990) (acknowledging that excessive burning and mutilation during
electrocution would implicate the Eighth Amendment).
FN37. See also Louisiana ex rel. Francis v.
Resweber, 329 U.S. 459, 471, 67 S.Ct. 374, 91 L.Ed. 422 (1947) (Frankfurter,
J., concurring) ("The fact that I reach this conclusion does not mean that
a hypothetical situation, which assumes a series of abortive attempts at
electrocution or even a single, cruelly willful attempt, would not raise
different questions."); Squires v. Dugger, 794 F.Supp. 1568, 1580
(M.D.Fla.1992) ( "Absent a showing establishing a pattern of malfunctions
in the operation of the electric chair, the Court cannot conclude that
unnecessary pain is being inflicted during executions in the Florida electric
chair.").
FN38. Both Kentucky and Tennessee have recently
switched from electrocution to lethal injection as the official method of
execution. See Ky.Rev.Stat. Ann. § 431.220 (Mitchie Supp.1998); Tenn.Code Ann.
§ 40‑ 23‑114 (Supp.1998).
FN39. See § 922.105(1), Fla. Stat. (Supp.1998)
("If electrocution is held to be unconstitutional ... all persons
sentenced to death for a capital crime shall be executed by lethal
injection.").
FN40. See supra note 19.
FN41. See § 20.315(6), Fla. Stat. (1997).
FN42. See § 922.105, Fla. Stat. (Supp.1998)
("If electrocution is held to be unconstitutional ... all persons
sentenced to death for a capital crime shall be executed by lethal
injection.").
FN43. See Cal.Penal Code § 3604(b) (West
Supp.1995).
FN44. See Fierro v. Gomez, 77 F.3d 301 (9th
Cir.1996).
FN45. See Cal.Penal Code § 3604(b) (West
Supp.1996).
FN46. Gomez v. Fierro, 519 U.S. 918, 117 S.Ct.
285, 136 L.Ed.2d 204 (1996). See also Fierro v. Terhune, 147 F.3d 1158 (9th
Cir.1998) (holding on remand that because Fiero had not yet chosen to be
executed by lethal gas, he lacked standing to challenge the constitutionality
of that method of execution and the claim was not ripe for decision). Cf.
Poland v. Stewart, 117 F.3d 1094 (9th Cir.1997) (holding that constitutional
challenge to execution by lethal gas in Arizona was not ripe for decision
because the defendant had not yet chosen that method of execution).
FN47. LaGrand v. Stewart, 173 F.3d 1144 (9th
Cir.1999).
FN48. See Wash. Rev.Code 10.95.180(1) (1994).
FN49. Rupe v. Wood, 863 F.Supp. 1307
(W.D.Wash.1994).
FN50. See Wash. Rev.Code 10.95.180(1) (1998). See
also Rupe v. Wood, 93 F.3d 1434 (9th
Cir.1996) (vacating district court decision in light of subsequent legislative
enactment).
FN51. Prior to being amended, section 775.082,
Florida Statutes (1997), provided as follows:
775.082 Penalties; mandatory minimum sentences for
certain reoffenders previously released from prison.‑‑
(1) A person who has been convicted of a capital
felony shall be punished by death if the proceeding held to determine sentence
according to the procedure set forth in s. 921.141 results in findings by the
court that such person shall be punished by death, otherwise such person shall
be punished by life imprisonment and shall be ineligible for parole.
(2) In the event the death penalty in a capital
felony is held to be unconstitutional by the Florida Supreme Court or the
United States Supreme Court, the court having jurisdiction over a person
previously sentenced to death for a capital felony shall cause such person to
be brought before the court, and the court shall sentence such person to life
imprisonment as provided in subsection (1).
§ 775.082, Fla. Stat. (1997).
FN52. Section 922.10, Florida Statutes (1997),
provides as follows:
922.10 Execution of death sentence; executioner.‑‑A
death sentence shall be executed by electrocution. The warden of the state
prison shall designated the executioner.... The warrant authorizing the
execution shall be read to the convicted person immediately before execution.
§ 922.10, Fla. Stat. (1997).
FN53. I would recede from Washington v. Dowling,
92 Fla. 601, 109 So. 588 (1926), to the extent that it is inconsistent with
this conclusion. There, the statute that was in effect at the time of the crime
called for death by hanging, and the sentence imposed by the trial court
specified death by hanging. Before Washington was executed, however, the
Legislature enacted a law abolishing hanging and calling for death by
electrocution. The Governor issued a warrant ordering that Washington be
electrocuted. The trial court ruled the warrant void because it differed from
the sentence imposed by the court. The Governor then issued a new warrant
ordering death by hanging. Washington petitioned the trial court, claiming that
he could not be hung because the new law had abolished hanging. The trial court
rejected the claim. This Court affirmed. The Court reasoned that (1) the trial
court's sentence calling for death by hanging was final and could not be changed, and (2) the portion of the new
law abolishing hanging could not operate to allow Washington to evade the court‑ordered
punishment. The Court relied on the Savings Clause of article 3, section 32,
Florida Constitution (1885), which provided that "the repeal or amendment
of any criminal statute shall not affect the prosecution or punishment of any
crime committed before such repeal or amendment." I would recede from that
portion of Washington wherein the Court held that the sentence could not be carried
out by electrocution. The Savings Clause thus would be inapplicable. See, e.g.,
State v. Watts, 558 So.2d 994 (Fla.1990) (explaining that the purpose of the
Savings Clause is prevent a defendant from evading punishment).
FN54. The resolution of these issues should also
serve as an apt reminder that the responsibility of our courts does not end
with the mere mechanical processing of cases. We must directly confront the
important and sensitive issues that are presented to us. And, of course, there
is no greater responsibility assigned to us than to see that the criminal
justice process is carried out in accord with the provisions of the Florida and
United States Constitutions. It is the exercise of that responsibility that is
made visible in the various opinions of the justices of this Court in this case, and it is the diligent exercise of
that responsibility that defines the very essence of the role of this Court in
the scheme of Florida's constitutional government. We cannot shirk that
responsibility because it arises in the context of outrageous criminal conduct
involving totally blameless victims. While those extreme circumstances form the
backdrop for the issues we confront and may give rise to the most passionate of
emotional reactions, it is peculiarly and importantly within the charge of the
justice system to be certain that we resolve these important issues without
resort to the distorting influences of passion and emotion.
FN55. Indeed, it cannot be gainsaid that our
justice system is not simply an instrument of vengeance, despite the
connotations to that effect contained in the extreme rhetoric that sometimes
surrounds the constitutional debate over the continuing use of the electric
chair. Unfortunately, the constitutional debate over whether killing a
condemned murderer by electrocution constitutes cruel or unusual punishment is
recklessly cast by some in terms of a failure of society and the justice system
to consider the fate of the innocent victims of the condemned defendant's
crimes. That suggestion misperceives the essential role of the justice system,
distorts the constitutional debate, and factually misses the mark. Of course, in addition, nothing could be further
from reality. The reality is that our society so values human life that we
reserve our harshest criminal penalties for violent acts that threaten or take
an innocent human life. So, it can hardly be said that the taking of an
innocent life is ignored by society or its justice system. But it must never be
said that the American justice system has refused to properly confront the
issues that it has been given the unique responsibility to decide or, worse
yet, that the justice system has allowed itself to become a means for
extracting vengeance. We have too often seen the failure of societies whose
court systems operate in such ways.
FN56. Last year when I joined the Court, I joined
with Chief Justice Harding in urging the Legislature to switch to lethal
injection. However, our Legislature, while providing for lethal injection if
electrocution is declared unconstitutional, has elected to retain electrocution
as its sole method of execution. This leaves the Court with no choice but to
fulfill our obligation to examine the constitutional question.
FN57. See also Furman v. Georgia, 408 U.S. 238,
263‑68, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam) (Brennan, J.,
concurring) (citations omitted):
[The Framers] included in the Bill of Rights a
prohibition upon "cruel and unusual punishments" precisely because
the legislature would otherwise have had unfettered power to prescribe
punishments for crimes....
... Accordingly, the responsibility lies with the
courts to make certain that the prohibition of the Clause is enforced....
... The right to be free from of cruel and unusual
punishments, like the other guarantees of the Bill of Rights, "may not be
submitted to vote; (it) depend(s) on the outcome of no elections."
"The very purpose of a Bill of Rights was to withdraw certain subjects
from vicissitudes of political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal principles to be
applied by the courts."
Judicial enforcement of the Clause, then, cannot
be evaded by invoking the obvious truth that legislatures have the power to
prescribe punishments for crimes.
FN58. In fact, it appears the prime concern of the
Legislature was that the death sentences not be invalidated as a result of a
change in the method of execution. As Justice Harding's concurring opinion and
Justice Shaw's dissent explain, the change to lethal injection would not result
in any death sentence being vacated.
FN59. In Nebraska, legislation has been proposed
that would change the method of execution from electrocution to lethal
injection. See LB 52, 96th Leg., 1st Spec. Sess. (Neb.1999).
FN60. I agree that the Department of Corrections
(DOC) appears to be attempting in good faith to correct recurrent problems that
have turned a series of executions over the last few years into something of a
freak show. In fact, it is precisely because these problems continue to occur,
despite the best efforts of DOC, that the electric chair is not only
unconstitutional as applied in Florida, but per se unconstitutional as a cruel
and unusual punishment incompatible with evolving standards of decency.
FN61. Justice Powell's views in Furman v. Georgia,
408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), were largely adopted by the
Supreme Court as the analysis to be used in Eighth Amendment claims in Gregg v.
Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).