Humane way to kill convicted criminals is still elusive


THE STATE of Florida is getting squeamish about electrocuting murderers. Last month, the Florida Supreme Court released an opinion complete with color photos of the executed body of Allen Lee "Tiny" Davis, his blood-soaked shirt and contorted purple face downloaded to any curious citizen via the court's Web site.

During oral arguments on the case, Provenzano vs. Moore, Justice Harry Lee Anstead asked an attorney for the state: "Can you hold that picture up to the people of the state of Florida and say this is what we want to do when we are taking a person's life as a result of a heinous crime?"

Davis' execution on July 8 renewed questions about the constitutionality of Florida's electric chair, already notorious for two other gory mishaps. Flames erupted from the chair's headpiece during the electrocutions of Jesse Tefero in 1990 and Pedro Medina in 1997, and both prisoners' bodies were burned beyond the "normal" head and leg wounds common in such executions.

The Eighth Amendment prohibits "cruel and unusual punishment," and several justices of the U.S. Supreme Court have questioned whether electrocution passes constitutional muster.

In 1985, dissenting Justice William Brennan wrote: "the Eighth Amendment requires that, as much as humanly possible, a chosen method of execution minimize the risk of unnecessary pain, violence, and mutilation."

That is why, said Justice Brennan, such punishments as "disemboweling while alive, drawing and quartering, public dissection, burning alive at the stake, crucifixion, and breaking at the wheel" are constitutionally forbidden.

According to Justice Brennan, electrocution was "nothing less than the contemporary technological equivalent of burning people at the stake." He cited witnesses' accounts that electrocuted individuals smoked and bled.

In the Provenzano case, such evidence was unconvincing to the Florida Supreme Court, as long as the prisoner felt no conscious pain -- a fact contested by one of the dissenting justices.

The majority upheld Florida's electric chair as constitutional, although Chief Justice Major B. Harding urged the legislature to authorize lethal injection as an alternative.

The decision "was not a glowing endorsement of the electric chair at all," according to Martin McClain, an attorney for death-row inmate Thomas Provenzano.

The dissenting justices pointed out that the guillotine, in which death was instantaneous -- unlike the six or seven minutes required in the electric chair -- would be unconstitutional today, as conceded by the state's attorney.

Not suitable for dogs

Use of the electric chair, said the dissenters, violates the Eighth Amendment regardless of the pain suffered by the condemned prisoner. Moreover, they stressed that no other nation besides the United States uses the electric chair, and that the Humane Society and the American Veterinarian Medical Association condemn electrocution for euthanizing animals.

Of course, euthanasia is not exactly what the family of Davis' victims had in mind for him. Davis was convicted of brutally murdering a pregnant 37-year-old mother and her two daughters, ages 10 and 5. Their shot and beaten bodies no doubt presented a far more gruesome scene than Davis' bloody nose.

Yet, as the U.S. Supreme Court has held, the purpose of the Constitution's ban on cruel and unusual punishment is "to protect the dignity of society itself from the barbarity of exacting mindless vengeance." To keep us, as a society, from becoming like Davis.

According to dissenting Justice Leander Shaw in the Provenzano case, the "bloody execution of Allen Lee Davis" was an act "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."

Provenzano's attorney, Martin McClain, has already filed an appeal to the U.S. Supreme Court. Three sitting justices have indicated a willingness to reconsider the issue, which was last decided in 1890; a fourth is needed for the court to take Provenzano's case.

Yet I wonder if the court, and society, is missing the most important issue. Is it really less "ghastly" -- in the words of the Florida Supreme Court -- if the government uses lethal injection to take a human life? Does the absence of blood and death throes make legally sanctioned murder more humane, or just more palatable?

I fear that the easier it becomes to "humanely" execute a condemned person, the easier it becomes to diminish the sanctity of human life. And that is exactly what Davis did to his victims.

Linda R. Monk is author of "The Bill of Rights: A User's Guide," which won the American Bar Association's Silver Gavel Award. She writes from Alexandria, Va.

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