The New York Times

Thursday, October 28, 1999

Supreme Court to Review Use of Electric Chair

By BILL DEDMAN

CHICAGO -- Prompted by several flawed executions in Florida's electric chair, the United States Supreme Court has agreed to review for the first time whether electrocution violates the Constitution. By taking the case, legal scholars said Wednesday, the Court will inevitably refresh its definition of cruel and unusual punishment.

The electric chair was introduced in 1890 in New York as a more humane method of execution but has been abandoned by most states as less humane than lethal injection. Several bloody malfunctions of the Florida electric chair have drawn public attention, but have not moved the state's Legislature to adopt other methods of execution.

The High Court's decision to review a case challenging the constitutionality of Florida's electric chair, announced on Tuesday night, stays the executions of two murderers who were scheduled to die this week in Florida. The decision could temporarily bar executions in Florida and three other states -- Alabama, Georgia and Nebraska -- where electrocution is the only method of execution. And the ultimate decision could bar electrocution in three other states -- Ohio, South Carolina and Virginia-- that allow it if the condemned person chooses it.

Florida legislative leaders said yesterday that they would consider calling a special session of the Legislature to add an option for lethal injection so that executions could continue. Florida ranks third in the nation in the number of executions that have taken place in recent decades, behind Texas and Virginia.

Gov. Jeb Bush of Florida, a Republican, called the Court's decision disappointing because families of victims would have to wait for justice to be served. He said he was exploring all options to keep the death penalty alive in Florida.

Bloody photographs of Allen Lee Davis, who was executed in Florida in July, have been posted on the Internet and will be part of the evidence reviewed by the Supreme Court. Davis, who killed a pregnant woman and her two young daughters in 1982, had a nosebleed just before he was electrocuted. Blood seeped through his shirt and the buckle holes of the chest strap."

In two earlier executions in Florida, in 1990 and 1997, flames shot out from the masks of the inmates and the smell of burned flesh filled the witness room. Similar malfunctions have occurred in other states, not only with electrocutions but also with lethal injections.

In Alabama, opponents of the death penalty said they were surprised that the Supreme Court agreed to take the case. The method of execution has been a tangential part of the legal and legislative battles over the death penalty, which have focused in the past decade on procedures for appeals and the minimum age at which capital punishment can be applied.

"If the State of Alabama embraced lethal injection, this wouldn't be a fairer place," said Bryan A. Stevenson, director of the Equal Justice Initiative, which represents inmates on Alabama's death row. "But when the Legislature says, 'We want to see people burn, we want to see people suffer,' it becomes more of a concern."

In Atlanta the Georgia Attorney General, Thurbert Baker, a Democrat, said the state would continue to execute inmates in its electric chair while the Supreme Court considers the case. "It is still the law of the land here in this state," he said.

In Nebraska, which already is reviewing the fairness of its death penalty, Gov. Mike Johanns, a Republican who supports the death penalty, said he would not instruct the state's Attorney General to change its procedures in death penalty cases. But Nebraska has not executed anyone in the last two years, and is already reviewing the fairness of its death penalty in a study ordered by the Legislature.

The prohibition against cruel and unusual punishment, contained in the Eighth Amendment to the Constitution, has been described by the Supreme Court as "an evolving standard of decency." Throughout most of the nation's history, hanging was the popular method of execution in most states.

In 1890, as public hangings were increasingly considered barbaric, New York State used the electric chair to execute William Kemmler, who had hacked his lover to death.

Kemmler's case went to the Supreme Court, but the Court did not decide whether electrocution was cruel and unusual. Instead, it found pre-emptively that the Eighth Amendment did not apply to the states. It was not until 1962 that the Court reversed course, making the Eighth Amendment the last of the Bill of Rights to apply to the states.

"The Supreme Court has never reviewed evidence whether any method of execution violates the Eighth Amendment," said Deborah W. Denno, a professor of law at Fordham University who has written extensively on capital punishment.

Electrocution was ultimately adopted by 26 states, but none after 1949. Lethal injection was first used in Texas in 1982. It has now been chosen by 34 of the 38 states that have death penalty laws, either as the only method or as a choice given to the condemned.

If the Court sets a new standard of what "cruel and unusual" means, it could set terms for other attacks on the death penalty.

"Is it cruel the way the death penalty arbitrarily strikes in one city and not another, that those with good lawyers are spared and those with bad lawyers aren't?" said Richard C. Dieter, executive director of the Death Penalty Information Center, a Washington nonprofit group that opposes the death penalty.

That analysis could be overly hopeful for opponents of the death penalty, said Professor Denno of Fordham, who testified as an expert in the Florida cases at the state court.

"This Court spent a lot of time developing standards of cruel and unusual punishment, relatively generous standards, particularly in the area of prison conditions," Professor Denno said.

"But the Court has never seen pictures of an inmate sitting on a chair with blood on his face," he continued. "The State of Florida always says, 'It's a fluke, an unforeseeable accident.' The Court might say: 'It's no longer a fluke. It's a pattern.' "