Judge upholds electric chair use

The decision that it is not "cruel and unusual punishment" now goes to the state Supreme Court.

By SYDNEY P. FREEDBERG

© St. Petersburg Times, published August 3, 1999

A judge upheld the constitutionality of Florida's electric chair Monday, ruling that it worked as intended during the bloody execution of Allen Lee Davis on July 8.

In a 33-page recommendation to the state Supreme Court, Senior Circuit Judge Clarence T. Johnson Jr. found that Davis may have suffered "some discomfort," but not "unnecessary and wanton pain," because of mouth and chin straps that restrained him in the chair.

"Execution by electrocution in Florida's electric chair as it exists in its present condition as applied does not constitute cruel and unusual punishment and therefore, is not unconstitutional," Johnson said. "Allen Lee Davis did not suffer any conscious pain while being electrocuted. Rather, he suffered instantaneous and painless death once the current was applied to him."

The battle over the electric chair now goes to the Florida Supreme Court, which will hear oral arguments on Aug. 24.

Three years ago, the Supreme Court -- after hearing the recommendation of a circuit judge in another case -- ruled that "Old Sparky," whose cracking wood was replaced last year to accommodate bulky inmates like Davis, is not "cruel and unusual punishment." The ruling came on a 4-3 decision.

Three of the seven justices on the Supreme Court are new, however, and in recent rulings all seven members have indicated that they are troubled by Florida's method of execution.

Davis, who weighed 344 pounds and was brought into the death chamber in a wheelchair, was put to death for the brutal murders of a pregnant Jacksonville woman and her two young daughters. But because his electrocution was accompanied by heavy bleeding the Supreme Court halted the execution of a second inmate, Thomas Provenzano, while the courts conduct another review of the chair's constitutionality.

Gov. Jeb Bush, who has backed the chair despite the controversy, said he was pleased with Johnson's ruling:

"This decision is a victory for justice in Florida and is certainly welcomed by victims of violent crimes throughout the state. I am confident that the judge's ruling will be upheld at the Supreme Court level."

Attorneys for Provenzano, whose execution was put on hold until at least Sept. 14, expressed disappointment but predicted that the Supreme Court would rule against the chair.

"We always have known that the ultimate decisionmaker in this case will be the Florida Supreme Court, and we're confident they will see it differently," said attorney Harry Brody.

Photographs taken moments after Davis' execution, introduced during last week's evidentiary hearing before Johnson in Orlando, showed the inmate grimacing, with the mouth strap pushed up tightly against his nose.

In his order, Johnson found that Davis' nosebleed, which stunned some witnesses in the death house and spawned headlines around the world, began before the executioner pulled the switch.

He said that the Department of Corrections may want to consider a "smaller or redesigned mouth strap," the wide brown band that anchors the condemned's head to the back of the chair.

Defense attorneys had argued that the strap was fastened so tightly that Davis couldn't breathe before the power was switched on.

The judge also found that:

Although the breakers and other components of the chair's electrical circuitry are old, they are adequate.

The cycles of voltage and amperage applied in Davis' execution did not deviate from a protocol established after the fiery 1997 execution of Pedro Medina and approved by theFlorida Supreme Court. However, the judge said, the protocol "cannot be exactly followed because it fails to take into consideration the variations in resistance of the inmate's bodies."

Davis' death did not result from asphyxiation caused by the mouth strap.

The design of the mouth strap used to secure the head to the chair "leaves something to be desired."

"Execution in the electric chair invokes emotional responses such as fear and dread," Johnson said. "It involves some necessary pain and discomfort when the straps are applied and tightened. However, strapping is necessary to minimize movement and insure the firm placement of the electrodes."

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