October 29, 1999

 By CARL S. KAPLAN

Execution Debate Is Broadened by Photos on Web

Is execution by electric chair -- the method required under the laws of Florida and three other states -- cruel and unusual punishment?

Related Article Supreme Court to Review Use of Electric Chair (October 28, 1999)

Earlier this week the Supreme Court of the United States agreed to hear an appeal by a death row inmate challenging the constitutionality of Florida's exclusive mode of execution. The court last considered the constitutionality of electrocution in 1890, when it upheld New York State's practice as a humane alternative to hanging.

Yet the august Justices will not be the only ones to weigh in on the controversial issue in the coming months. The court of public opinion has been active, thanks to three extraordinary and ghastly pictures of an execution by electrocution posted on the Web site of the Supreme Court of Florida.

The color pictures, taken by the state's Department of Corrections, depict the immediate aftermath of the electrocution of Allen Lee Davis, on July 8, 1999. Davis was executed for the 1982 murders of a pregnant woman and her two young daughters.

All of the pictures show Davis covered with blood, which apparently originated from a nosebleed. In one picture, his purple, scrunched-up face reveals what appear to be burn marks on his scalp and cheeks. Another shows him tightly bound into a chair, with leather straps wound around his lower face and chin, almost cutting off his air supply.

The pictures, from an original set of 11, were originally appended to a dissenting opinion by Justice Leander J. Shaw Jr. in a September 24, 1999, state case, Provenzano v. Moore, which upheld, 4-3, the use of the Florida electric chair. The ruling by the court was the second time in two years it had found the use of the electric chair legally acceptable.

In his stinging dissent, Shaw argued that electrocution was cruel and barbaric, causing undue pain. The appended color pictures of Davis, in particular, show a "ghastly" and "unquestionably violent" post-execution scene that "depict a man who -- for all appearances -- was brutally tortured to death by the citizens of Florida," Shaw wrote.

The only other public display of an electrocution photo occurred in 1928.

Almost immediately after the opinion was issued, the Court, as is its routine practice, posted it on its Web site. The color pictures were posted as three separate links under a main link to the text of the opinion.

It is extremely rare for photographs to be appended to court decisions, lawyers say. Experts on capital punishment said that they were not aware of any other instance in which bloody execution photos were attached to a court opinion -- let alone posted online for worldwide dissemination.

One lawyer noted that the only other public display of an electrocution photo occurred in 1928, when The Daily News published a blurred front page portrait of the execution of Ruth Snyder, taken by a photographer in the death chamber who, without permission, had strapped a special camera to his ankle.

Since the Davis pictures were posted, the court's Web site has crashed several times owing to the increase in visitor traffic, said Craig Waters, a spokesman for the Florida Supreme Court. He said he could not estimate the number of people who have clicked on the pictures on the court's main site or on its mirror site. The main site normally receives around 7 million visitors per year, he said.

Over 1,000 correspondents around the world, alerted by local and international news coverage, have e-mailed the court with their opinions on electrocution, said Waters, who agreed to share about 20 e-mails.

Most of the 1,000 or so respondents are in favor of capital punishment and electrocution, Waters said. Many people thought the photos appropriately showed the wages of sin or could serve as a deterrent to others. Other writers said they were horrified by the photos and the state practice.

"Thank you for your help, photo[s] 1 and 3 are favs," wrote Christopher M. Georgianni, a computer consultant in New Jersey. "I'm 22 years old, and have grown up with some real losers. I'm going to forward these pictures to them [w]ith the caption, 'This could happen to you.' "

Johan Eng, 37, a printer from Stockholm, wrote: "I discovered the pictures of the executed Allen Davis. I hereby send you my protest to executions."

Internet links of interest to Cyber Law Journal readers

Pierre-Alain Cotnoir, who did not indicate his age or place of residence, wrote simply: "Barbarians . . . "

Some lawyers said the posting by the Florida court of the execution pictures raised complicated questions.

"On the one hand, dissemination of pictures showing the brutality of the death penalty does make an important and powerful statement about what's going on behind closed doors," said Dorothy Ehrlich, executive director of the American Civil Liberties Union of Northern California. On the other hand, the public display could invade the "dignity and privacy" of the capital punishment victim at the moment of his death, she said.

David Post, a law professor at Temple University who teaches Internet law, said the online display of the Davis pictures illustrates a key feature of cyberspace: the free flow of information.

Noting that no newspaper or television show to his knowledge has chosen to publish the unaltered Davis pictures, Post said that in the Internet age, no piece of information can be kept from the public.

"It just takes one person to disseminate information to the world, " he said. "So the potential for controlling the spread of thoughts, pictures and ideas -- which is generally a bad thing -- is difficult and almost impossible."

James Liebman, a professor of criminal law at Columbia Law School who has argued death penalty cases before the U.S. Supreme Court on behalf of criminal defendants, said that Justice Shaw's use of the Davis pictures -- and their subsequent publication online -- in an indirect way trumped long-standing rules in Florida and elsewhere against the recording, filming or televising of capital punishment.

Executions in Florida have not always been held away from the public eye. State execution by hanging was held in public places in Florida counties until 1924, when the state shifted to private electrocutions out of "a distaste for the spectacle of suffering," said Michael Radelet, chairman of the Sociology Department at the University of Florida at Gainesville and an expert in the history of the death penalty in the United States. He said the last public hanging in the United States occurred on May 21, 1937, in Galena, Mo., before a crowd of 500. The year before, 20,000 spectators witnessed a public hanging in Owensboro, Ky.

Besides Florida, three other states -- Alabama, Georgia and Nebraska -- require execution by electrocution exclusively. Of the 34 other states that have capital punishment, most require or offer lethal injection.

Florida's electric chair, dubbed by some "Old Sparky," has been the scene of at least three botched executions in this decade, Justice Shaw pointed out in his dissent. In two of these executions, smoke and flames spurted from the headpiece and burned the heads and faces of the inmates, he said. In the third execution, Davis's, the inmate bled from the nostrils and was probably partially asphyxiated by a restraining device, Shaw said.

Martin J. McClain, a lawyer who represents Thomas Provenzano, a death row inmate whose challenge to Florida's electric chair this year led to the state court's September decision in the matter, said in an interview that the photos of Davis, which he used in oral argument before the Florida Supreme Court, are "startling and grotesque." He added that the Davis family had no objection to his use of the photos.

Provenzano's execution has been stayed for a few weeks, pending a competency hearing, McClain said. He added that as a practical matter, no other inmate would die by execution in Florida until the U.S. Supreme Court issues its decision on electrocution.

McClain will be part of the legal team in the U.S. Supreme Court case brought by a death row inmate, Anthony Braden Bryan, 40, who was scheduled to be executed in Florida this week for the murder of a Mississippi man in 1983. Bryan's argument in the high court against Florida's electrocution methods will be supported, in part, by the Davis pictures, McClain said.

"If Florida is going to be carrying out executions using the electric chair, the public should know what that entails," he said, referring to the Internet publication of the photos.

CYBER LAW JOURNAL is published weekly, on Fridays. Click here for a list of links to other columns in the series.

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Related Sites
These sites are not part of The New York Times on the Web, and The Times has no control over their content or availability.

• Supreme Court of Florida and the court's sub-pages on capital punishment litigation
• Copy of Supreme Court of Florida's decision in Provenzano v. Moore, including dissent by Justice Shaw, from Web site maintained by University of Florida College of Law
• Warning: These images, taken after an execution and appended to the official dissent, may be considered offensive:
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  • Photo One
  • Photo Two
  • Photo Three
• Biographical sketch of Justice Shaw, from Supreme Court of Florida's Web site

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Carl S. Kaplan at kaplanc@nytimes.com welcomes your comments and suggestions.

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