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by Ann Woolner - Fulton County Daily Report
Copyright 1995, American Lawyer Media.

With the clock ticking toward another execution in Georgia, a constitutional challenge to electrocution as cruel and unusual punishment fell Tuesday under the weight of precedents.

U.S. District Court Senior Judge Horace T. Ward said that although the constitutional attack was "not frivolous," he must deny a temporary restraining order sought on Eighth Amendment grounds because of "overwhelming legal precedence

A lawyer for Nicholas Lee Ingram, scheduled to die Thursday in the electric chair, used the unusual strategy of filing a civil rights action under 42 U.S.C. 1983 to attack electrocution and to seek a temporary restraining order to hold up the execution.

But Ward denied the TRO in an eight-page order he issued less than 24 hours after a hearing, saying Ingram's lawyer had failed to convince him Ingram had a substantial likelihood of prevailing on the merits if a TRO were granted. Ingram v. Ault, No. 1:95-cv-875-HTW (N.D.Ga. order filed April 4, 1995).

For the state, Senior Assistant Attorney General Michael E. Hobbs said he was not surprised by the ruling, because "we felt like the law was so overwhelmingly clear."

Death penalty specialist Clive A. Stafford Smith, who represents Ingram, could not be reached after Ward issued his order Tuesday, but he had said Monday he would appeal immediately if it went against him.

In the meantime, Smith also filed a state habeas corpus petition in Butts County challenging aspects of the trial in which Ingram was found guilty and sentenced to die. Ingram, who holds dual U.S. and British citizenship, was convicted for the 1983 murder of a Cobb County man, J.C. Sawyer, who caught Ingram burglarizing his home.

His pending execution has triggered a transatlantic effort to spare his life, with his family and supporters in his native England trying to help.

EVOLVING STANDARDS OF DECENCY

In his constitutional challenge, Smith acknowledged that an 11th U.S. Circuit Court of Appeals decision 10 years ago established a precedent that worked against his Eighth Amendment claim.

He argued, however, that "evolving standards of decency" should compel Ward to consider medical evidence about the pain and alleged inhumanity of electrocution, as well as evidence that American public opinion has turned against the practice in favor of lethal injection.

Georgia's practice of electrocuting people dates to 1924.

Smith wrote in his 51-page memorandum that even if Ingram's execution goes as planned, he "will suffer excruciating pain, gratuitously inflicted by a State that refuses to adopt a more civilized form of execution."

The memorandum offers details of electrocutions that did not go as planned, where sparks and flames erupted from electrodes, where blue smoke curled about a condemned man's head, where another man's head caught fire, and where jolts strong enough to burn flesh were too weak to bring death.

For the state, Hobbs points out that only one of those examples came from Georgia, the execution of Alpha Otis Stephens in 1984.

"It's our position that our experience in Georgia has not been such that it has indicated a constitutional problem" with the electric chair, Hobbs says.

Bringing all of that up in a civil rights action is unusual, says David A. Price of the conservative Washington Legal Foundation, but using the cruel and unusual punishment argument to stave off execution is not.

Death penalty opponents have attacked "every mode of punishment- lethal injection, gas chamber, electrocution-whichever one happens to be applicable," Price says. (He says lethal injection, the most widespread method, was challenged in a non-death penalty case, Heckler v. Chaney, 470 U.S. 821 (1985).

In California, an attack on the gas chamber won a federal court order last year declaring it an Eighth Amendment violation. Fierro V. Gomez, 865 F. Supp 1387 (N.D. Cal. Oct. 4, 1994).

But here, at Monday's hearing, Assistant Attorney General J. Philip Ferraro called it a "transparent attempt to flout the criminal justice system in the State of Georgia [to] bring up this civil rights action this late in the case."

Arguing against the TRO, Ferraro said, "There is no chance, based on all that case law, that he's got any chance of prevailing on the merits."

Ferraro argued that although lots of state and federal courts have been asked to consider this argument, none has found electrocution to be cruel and unusual.

The last word from the 11th Circuit came in a lengthy decision devoted mostly to other issues. Still, the appeals court dismissed the cruel and unusual argument in a single sentence: "The contention that death by electrocution violates the Eighth Amendment is frivolous." Johnson v. Kemp, 759 F.2d 1510 (11th Cir., decided April 24, 1985).

Ferraro argued that even "evolving standards of decency" have not evolved so dramatically in 10 years that the District Court can ignore Johnson.

But Smith, in his argument and his memorandum of law, cited examples of states eliminating electrocution in recent years such that now only six of the 25 states that once allowed electrocution still do it; and, according to Smith, three of those six are now moving away from it.

And while Smith counts Georgia as one of three states still committed to the chair, he points out that the Georgia House voted 127-15 in 1987 to allow lethal injection, but the bill was stopped by a Senate committee.

Smith also cited public opinion polls showing Americans vastly favor lethal injection over electrocution. Of the 38 states with the death penalty, 27 use lethal injection either as the only means of execution or as a choice offered to the condemned, according to the NAACP Legal Defense Fund's Capital Punishment Project.

Ferraro countered at the hearing that the electric chair "may not be the latest technology, but we're not required to use the latest technology." And polling data cannot form the basis for a constitutional determination, he said.

Still, there is no doubt that states are moving away from electrocution in favor of the "more sanitized ... least painful" method of lethal injection, says Kika Matos, research director for the Capital Punishment Project of the NAACP's Legal Defense Fund.

"For me the bottom line is, it's wrong to take away a human life no matter how you do it, but if you're going to do it, do it in the way that's least painful," says Matos.

In any event, "this is an ongoing topic in litigation," she adds.

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