Bryan, Anthony Braden v. Moore, Secy Florida Dept. of Corrections

By: David van den Berg, Medill News Service

Questions presented

Does judicial execution by electrocution violate the 8th Amendment to the U.S. Constitution, which forbids cruel and unusual punishment?

Brief

Florida Department of Correction officials took pictures of Allen Lee Davis as he was being executed in July 1999, because something was going wrong with the procedure, and the state might face legal challenges because of it.

As the execution was taking place, fellow death row inmate Anthony Bryan was in his cell pending an Oct. 27, 1999, execution for the murder of a man in the western Florida panhandle.

Davis, who was convicted for the 1982 murder of a pregnant woman and her children, suffered a nosebleed during his execution, which could have been caused by a leather strap buckled too tightly over the lower part of his face. It is also possible that Davis could have been asphyxiated by the strap, which prevented his nosebleed from flowing freely.

The nosebleed made the post-mortem pictures of Davis look unusually gruesome. Leander Shaw, a Florida Supreme Court justice, posted these pictures on the Florida courts website as part of his dissent, which came in a state high court ruling in Provenzano v. Moore. Thomas Provenzano, a condemned killer, had challenged the constitutionality of using the electric chair. The court held using the electric chair was not cruel and unusual.

At the time of Davis' electrocution in July 1999, Bryan had been on death row for 13 years since a Florida judge accepted a jury's recommendation that Bryan be sentenced to die for murdering George Wilson, a man who had let Byran borrow his tools so Bryan could repair his boat.

Florida's often-malfunctioning electric chair, known as ""Ol' Sparky,"" had caused three grisly mishaps during the 1990s. Florida started electrocuting convicted killers in 1923, and though the actual chair was replaced in 1998, the wiring and circuitry have not been replaced.

In 1990 and 1997 executions, the chair malfunctioned in dramatic fashion, as flames erupted from the headpieces worn by two convicted killers, Jesse Tafero and Pedro Medina, as they were executed. Smoke and the smell of burning flesh reportedly filled the execution chamber. After the 1997 incident involving Medina, Florida Attorney General Robert Butterworth publicly stated his belief that the gruesome mishap would deter other criminals.

Bryan's petition to the Florida Supreme Court contended that Florida officials simply don't care about problems with their electric chair. ""Inmates do not routinely catch fire, bleed, continue to breathe, scream, moan, try to speak or otherwise attempt to react to execution-related pain in other states employing judicial electrocution,"" wrote Bryan's attorney in the petition. ""Although these things need not occur in Florida, officials of the state of Florida are deliberately indifferent to their occurrence.""

On Oct. 26, 1999, one day before Bryan's scheduled execution, the U.S. Supreme Court granted Bryan's petition for a writ of certiorari to consider whether judicial execution by electrocution constitues cruel and unusual punishment. The Court granted Bryan's application for a stay of the execution of his death sentence and allowed him to proceed in forma pauperis.

The prohibition against cruel and unusual punishment is found in the 8th Amendment to the Constitution. The last time the Court considered whether or not electrocution could be used as a method of punishment was in 1890. In that case, In re Kemmler, the Court held that the state of New York could use the electric chair instead of hanging death row inmates.

Electrocution was adopted by 26 states before 1949. Now, 34 of the 38 states that have death penalty laws use lethal injection instead. Florida is one of four states that use the electric chair today. Alabama, Georgia and Nebraska are the others.

Florida's legislature passed a law in 1998 making lethal injection the method of termination, but only if using the electric chair is ruled unconstitutional.

The U.S. Supreme Court initially agreed to review the case, but on Jan. 24, 2000, the Court dismissed the certiorari petition as improvidently granted based on representations by the Florida Attorney General that Bryan's death sentence will be carried out by lethal injection, according to revised statute, unless Bryan elects death by electrocution.