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Historic arguments before the Georgia Supreme Court began Monday with a call for justices to look to “modern knowledge, modern standards.” They ended with a display of a graphic post-execution photograph. The court is being asked to determine if electrocution violates the Eighth Amendment’s ban on “cruel and unusual” punishment. If the court bans electrocution, it would become the first appellate court in the nation — on either the state or federal level — to take such a step. The case presents “a most important issue, a difficult issue,” newly installed Chief Justice Norman S. Fletcher told a packed courtroom, where spectators stood along the walls. Opponents referred to “evolving standards of decency” and said bodily mutilation and disfigurement caused by electrocution is evidence that it violates the Eighth Amendment. But the state countered that the issue isn’t disfigurement, but whether the condemned feels any unnecessary pain. And as for society’s standards, the state’s lawyer said the will of the people — expressed through the Legislature — is to keep electrocution. Last year, the Georgia Legislature substituted lethal injection for those condemned to die for crimes committed after May 1, 2000. But those sentenced to death for crimes committed before that date still must be electrocuted. A total of 129 men and one woman on Georgia’s death row could be electrocuted if the court allows the law to stand. Before the court are two consolidated cases in which the state is seeking the death penalty. Timothy Carl Dawson is accused of the 1998 murder and robbery of three tourists at the Atlanta Hilton and Towers. Dawson v. State, No. S01A1041 (Sup. Ct. Ga. arg’d July 9, 2001). Carzell Moore was convicted of the 1976 rape and murder of Teresa Allen, an 18-year-old Monroe County college student who was kidnapped from the convenience store where she was a clerk. Moore v. State, No. S01A1210 (Sup. Ct. Ga. arg’d July 9, 2001). Moore faces a resentencing trial. The justices agreed to hear the cases on interim (pretrial) review to consider only the issue of the constitutionality of electrocution, after refusing to consider the issue in numerous other appeals. Arguments began when defense lawyer Stephen B. Bright, director of the Southern Center for Human Rights, urged the court to look to “modern knowledge, modern standards” in deciding the issue. They ended when defense lawyer Thomas M. West, who represents Dawson, showed the justices a photograph of the burned forehead of electrocuted killer Larry Lonchar and said the electric chair causes such mutilation. But Senior Assistant Attorney General Susan V. Boleyn said the court’s analysis should begin with the issue of pain. An execution method is unconstitutional, Boleyn argued, only if it involves “unnecessary and wanton infliction of pain, in light of the evolving standards of decency.” And, she insisted, the court should be aware that the challenge to the electric chair was, in essence, a challenge to execution in any form. BRIGHT: CHAIR OUTDATED Bright, who represents Moore, told the justices that “the mere extinguishment of life is all the Constitution allows.” But Georgia’s execution protocol, he said, produces disfigurement and a lingering death. The chair is outdated, Bright argued, likening its use to surgeons who once operated without administering anesthesia. Today, a failure to use anesthesia would amount to malpractice, he said. “The same is true for the method of execution,” he said. “We do not need burning of the flesh, cooking of the brain.” He urged the court to consider both “modern knowledge and modern standards,” meaning the availability of lethal injection and changed community standards. He argued that Georgia’s modification of its death penalty law in 2000 is evidence that the Legislature acknowledged and acted on society’s changing standards. If those electrocuted suffered no pain, Presiding Justice Leah W. Sears asked, would the electric chair be constitutional? The guillotine didn’t cause pain, Bright responded. “Cuts the head right off.” But, he added, the type of mutilation the guillotine produced was a violation of the Eighth Amendment. “All those things have to be taken into account,” Bright told Sears. “Pain does not end the inquiry.” He added, “I would suggest [a finding of] pain is not even required here because you have disfigurement, cooking of the brain.” He urged the court to consider its 1989 decision in Fleming v. Zant, 259 Ga. 687, that execution of the mentally retarded constituted cruel and unusual punishment. In that case, the court considered a new state law that prohibited executing the retarded prospectively, and concluded it should be applied retroactively as well because it reflected a societal consensus against such executions. Georgia was the first state to prohibit executing the mentally retarded, Bright noted, adding that issue of societal consensus was even stronger on the electric chair issue. In Fleming, he said, “Georgia was in the lead. Here, we’re at the back end.” If the court leaves electrocution intact, Bright said, “Georgia could be electrocuting people 10, 15 years from now.” Electrocution, he argued, is degrading “not only to those strapped down but [is] degrading to the punishers. It’s degrading to the state of Georgia.” A growing consensus against electrocution is why the state changed the law, Bright said. But Boleyn argued that wasn’t the Legislature’s intent. The change from electrocution to lethal injection was the result of concern that the state have a fallback method of execution available should a challenge to electrocution succeed. And she told the court that the issue isn’t whether a more humane form of execution is available. “The question is whether the challenged method is constitutional.” Boleyn argued that while the court could examine what other states have done, that inquiry should not be critical in the court’s analysis. Instead, she said, the justices should look to Georgia’s standards. Georgia, she added, made a choice to keep electrocution. “It’s not a matter of what’s popular, what’s fashionable. This is a matter of what the people of Georgia have chosen.” The court had said exactly that in Fleming, she argued. “What it comes down to is: What is the consensus of the people in Georgia?” Boleyn said an execution method is cruel and unusual if it involves unnecessary pain, in light of the evolving standards of decency. An instantaneous death requirement, as argued by the defense, does not exist in Eighth Amendment jurisprudence, she argued, nor does a requirement that a more humane alternative exist. Some risk of pain is constitutionally permissible, and some pain is associated with any death, she told the court. “So it’s not whether there is pain associated with death; it’s whether there is unnecessary pain.” The defense, she insisted, had failed to prove that those executed experienced any pain. Rather, she said, the unrebutted evidence showed that electrocution produced instantaneous unconsciousness. How does disfigurement enter into the analysis? Fletcher asked. Boleyn said the defense had not shown any evidence of that, and insisted the standard was unnecessary pain, not mutilation. Fletcher wasn’t satisfied. “So disfigurement is not a part of it?” If it were involved, Boleyn conceded, the court should look at that. “It’s not pleasant to talk about in a public forum,” she said. But, she insisted, those executed experienced no pain. “Yes, but this state doesn’t want to mutilate people, do we?” asked Sears. No, Boleyn said, adding that execution audiotapes in evidence indicated the electrocutions were conducted “in a very clinical and sterile atmosphere.” Mutilation and disfigurement would constitute unnecessary pain, Boleyn acknowledged, but reiterated that electrocution immediately renders the prisoner unconsciousness. Boleyn had a warning for the justices. “We all know that this is not a challenge to a method of execution,” she said. “This is a challenge to the death penalty at all. We’re not here today about whether electrocution is unconstitutional.” That argument, said an obviously irritated Fletcher, “is irrelevant to the issue today.” Boleyn insisted that the court needed to know that while defense lawyers might tout lethal injection as an alternative, they swiftly would be challenging that method as well, should electrocution fall. “We all know,” said Fletcher, that such arguments will be raised.

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