Justices decide again that electrocution is not cruel and unusual punishment, but they seek an option of lethal injection.
By SYDNEY P. FREEDBERG
© St. Petersburg Times, published September 25, 1999
For the second time in two years, a sharply divided Florida Supreme Court ruled Friday that the state's electric chair is not a cruel or unusual way to put killers to death.
In a 4-to-3 decision, the court ruled that there is "abundant evidence" the electric chair instantly causes a painless death, despite the flames, blood and screams that have marked at least three recent executions.
It also dismissed claims that electrocution, Florida's death-penalty method for 75 years, offends modern standards of decency.
But even in upholding the chair, a majority of justices beseeched Florida lawmakers to pass a law offering death row inmates lethal injection.
"Each time an execution is carried out," Chief Justice Major Harding wrote in a concurring opinion, "the courts wait in dread anticipation of some "unforeseeable accident' that will set in motion a frenzy of inmate petitions and other filings."
Still, the majority concluded, as it did in 1997, "Florida's electric chair is not cruel or unusual punishment."
In a blistering 43-page answer to the six-page unsigned majority opinion, dissenting Justice Leander Shaw described in graphic detail a history of botched executions in Florida. He included three grisly photographs of Allen Lee "Tiny" Davis in the chair moments after his bloody July 8 execution.
"The color photos of Davis depict a man who -- for all appearances -- was brutally tortured to death by the citizens of Florida," Shaw wrote. "Violence begets violence, and each of these deaths was a barbaric spectacle played by the state of Florida on the world stage."
Reaction was swift on both sides of the court decision.
Gov. Jeb Bush applauded the ruling, calling it a "resounding victory for all Floridians, especially those who have been victimized by the cruel and malicious acts of those inmates on death row."
Attorneys who argued against the chair said Friday's ruling likely will lead to more court challenges, including an appeal to the U.S. Supreme Court.
They predicted that electrocution, now used as the sole method of execution in only four states, will eventually be ruled unconstitutional.
"This is not over," said Martin McClain, the New York lawyer who led the legal attack on the chair. "It's going to be coming up each and every time there is an execution in Florida. And every time there is a problem, the courts are going to have to address it. They're going to have to hold hearings and write opinions. It's just going to go on and on and on."
The opinions showed deep chasms not only between the court and the Legislature but also among the justices themselves.
Besides Harding, Justices Charles Wells, R. Fred Lewis and Peggy Ann Quince supported the majority opinion. Besides Shaw, Justices Harry Lee Anstead and Barbara Pariente dissented. Six of the seven justices also wrote their own opinions.
Florida's electric chair has sparked international debate since the fiery 1990 execution of convicted cop killer Jesse Tafero. The Florida Supreme Court has held hearings on the chair twice within two years, following grisly executions.
The court had upheld the chair's use by a 4-3 vote in October 1997, after flames leaped from the death mask of prisoner Pedro Medina during his electrocution in March 1997.
But three new justices have been appointed since then and the July 8 execution of Davis, condemned for the 1982 murders of a pregnant Jacksonville woman and her two young daughters, intensified the debate.
Most of the justices acknowledged that Friday's ruling deviates from a growing national consensus against electrocution.
"Clearly, the modern trend is toward rejecting electrocution," Harding wrote.
Most of the 38 states where capital punishment is legal have switched to lethal injection, a process that some say is less objectionable than putting prisoners to death by attaching electrodes to their bodies and shocking them with lethal amounts of electricity. Some states abandoned their electric chairs partly in response to Florida's mishaps in the 1990s.
But in Florida, many lawmakers and the governor, who took office in January, resolutely back electrocution.
House Speaker John Thrasher, an Orange Park Republican, said the Supreme Court decision "speaks volumes about true justice and compassion for the innocent victims of heinous crimes."
And Sen. Locke Burt, an Ormond Beach Republican who has been an outspoken supporter of the electric chair, said the Legislature likely will continue to oppose a lethal-injection bill.
In the majority opinion, the court upheld retired Circuit Judge Clarence Johnson's ruling last month that the chair, despite old electrical circuitry, "is and has been functioning properly."
The court also found that the Department of Corrections did not violate its execution protocol in the Davis electrocution, though justices nudged corrections officials to re-examine the mouth-strap used to secure an inmate's head to the chair. In Davis' execution, the 5-inch-wide strap -- evidently a weightlifter's belt -- was fastened so tightly against his face that it pushed his nose upward, partly blocking his nostrils.
The critical vote Friday was Chief Justice Harding, who in 1997 wrote that the court was on a constitutional collision with the Legislature over continued use of the chair.
In his opinion Friday, Harding said he was "disturbed" by the graphic photographs of Davis, the first ever made public of a Florida electrocution. But Harding did "not find this alone enough to deem electrocution cruel and unusual punishment," barred by the U.S. and Florida constitutions.
At the same time, Harding made a case for abandoning electrocution, acknowledging that challenges to the electric chair will continue to consume "an inordinate amount" of court time until the Legislature follows the national lethal-injection trend.
In unusually strong language, dissenting justices chided the majority for what they said was a refusal to explain or confront the U.S. Constitution's Eighth Amendment ban on cruel and unusual punishments.
Citing a federal court opinion, Justice Pariente said the cruel-and-unusual-punishment prohibition draws its "meaning from the evolving standards of decency that mark the progress of a maturing society."
She said electrocution violates decency, citing recurrent problems such as burning, "breathing after the electric current has ceased" and possible asphyxiation. She likened it to the guillotine, public hanging and death by firing squad, all deemed "relics of another era."
The circumstances turn executions into "something of a freak show," Pariente added, "a spectacle more befitting of a B Hollywood horror movie than a state-sanctioned execution."
Pariente, a new justice ruling against the chair for the first time, and Justice Anstead, who voted against it two years ago and again Friday, deplored the sense of vengeance that has become a backdrop to the chair debate. Constitutional principles, they noted, apply even to heinous criminals who take the lives of innocents.
"Our continuing embrace of a savage and inhumane means of taking a life does a disservice to our justice system and our society," Anstead wrote. "It must never be said that the American justice system . . . has allowed itself to become a means of extracting vengeance. . . . We have too often seen the failure of societies whose court systems operate in such ways."
Justice Shaw said no other country uses electrocution as an execution method. "Both the Humane Society and the American Veterinarian Medical Association condemn electrocution as a method of euthanasia for animals," he added.
Friday's ruling paves the way for the electrocutions next month of two convicted killers under death warrants. A third condemned murderer, Thomas Provenzano, received an indefinite stay from the Supreme Court on Thursday, based on a claim of insanity. Provenzano, convicted of killing an Orlando bailiff and paralyzing two others in a 1984 courtroom rampage, brought the challenge that led to Friday's ruling.
-- Times staff writer Julie Hauserman contributed to this report.