IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

=================================

STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

=================================

MOTION TO BAR DEATH PENALTY AS CRUEL,
UNUSUAL AND DEGRADING PUNISHMENT

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution, and other law set out below, to bar the death penalty in this case as cruel, unusual and degrading punishment. In support of his motion, Mr. CLIENT states as follows:

1. Since this is to be a capital prosecution, exacting standards must be met to assure that it is fair. As the Louisiana Supreme Court has held, "[d]eath, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the jury's determination that death is the appropriate punishment in a specific case." State v. Myles, 389 So. 2d 12, 30 (La. 1980) (citing cases).
2. Louisiana law now provides that all persons sentenced to death shall suffer execution by lethal injection. He will, if sentenced to death, apparently have to wait for years for the sentence to be carried out. This raises a question that cuts to the very heart of Eighth Amendment's Cruel and Unusual Punishments Clause: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII (emphasis supplied). The same question arises under the state constitution--a question that demands measured judicial consideration.
3. Most of the officially sponsored executions carried out since in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), have been by means of gas, lethal injection or electrocution. Since Gregg, an ever-increasing body of evidence has developed to demonstrate that all three of these methods of execution are cruel and barbaric methods of extinguishing human life. Likewise, the state's predilection for holding someone for decades prior to killing them injects another element of cruelty and barbarism.
4. There is considerable empirical evidence and eyewitness testimony which demonstrates that executions, as currently practiced, violate every one of the principles guarded by the Eighth Amendment. Details concerning the actual process of electrocution are not widely known, primarily because "executions are carried out in private; there are few witnesses; pictures are not allowed; and newspaper accounts are, because of 'family newspaper' requirements of taste, sparing in detail." Hearings on HR 8414 et al. before Subcommittee No. 3 of the House Committee on the Judiciary, 92d Cong., 2d Sess. See also Camus, Reflections on the Guillotine, in Resistance, Rebellion, and Death 187 (1961) ("The man who enjoys his coffee while reading that justice has been done would spit it out at the least detail"). This evidence suggests that executions, as practiced in Louisiana on many people in the past few years, is extremely violent and inflicts pain and indignities far beyond the "mere extinguishment of life."
5. Even since Mr. CLIENT has been facing these charges, the states have executed other human beings. Mr. CLIENT has heard all about the executions that have been going on around the country. All this time, the State of Louisiana has been telling Mr. CLIENT that this was what was planned for him.
6. Take the case of Edward Johnson, who was on Death Row for eight years, and was gassed to death for a crime which he probably did not commit. Edward was degraded by the circus-like atmosphere which attends executions at the Mississippi State Penitentiary. The prison administration takes rabbits -- black ones, naturally -- to sit on the chair in the gas chamber and "test it out." They died. The almond smell of the exhaust fumes wafted into the cells where Edward waited. Edward watched television shows on which Mississippians voted whether he should live or die. Edward watched as the courts turned him down through eight years of appeals, and as -- finally -- three courts and the governor turned him down in the final 24 hours.
7. There follow excerpts from an eyewitness account of what Edward Johnson went through, and the type of thing that Mr. CLIENT is apparently slated to go through himself:
Death Row at Parchman, Mississippi, has all the appearances of the death camps with which the post-War world is all too familiar. Who can enter a high security prison without the claustrophobia of someone drowning, yet the presence of the unseen death chamber adds an additional morbidity.

After entering through the barbed wire fencing, and then through the heavy main door, I found fifteen of Edward's family members sitting around in a small room, usually used for guards. As I entered, I did not even notice Edward, since he fit in so normally with all the others.

Immediately before I had got to the prison, I had called Jackson, and learned the details of the Fifth Circuit's decision -- they had of course denied Edward's appeal, but in their misbegotten effort to hammer in a few extra nails, had made a couple of very serious legal errors. Paradoxically, the court's perverse zeal had lent one more chance that Edward's life could be saved in the United States Supreme Court.

* * *

Two telephone calls to Washington, D.C., and the Supreme Court still had not ruled. Each time I walked across to the telephone, I had to pass half a dozen guards in the antechamber of the Death Row unit. Everybody avoided my eyes, ashamed.

As nine-thirty approached, the "major" in charge of Death Row, needing to assert his authority more loudly than necessary, said that the family had to leave. Why, reason could not really explain -- but to hide behind rigid procedures depersonalizes, and somehow obscures the absurdity of something so purposeless.

Edward's small nephew began to cry, but Edward took him in his arms, and told him to stop such nonsense. The little boy calmed at once. The rest of the family and friends put on brave smiles, and said they would be praying over at the prison chapel, brightly lit a half mile away, but thankfully hidden from our windowless cell block. Perhaps it was best that they would have to go. As the final moves of the legal appeals played out, Edward might find the flow of their tears harder to stem.

Suddenly, we were all alone, Edward and I, in a room which seemed so much larger. What to say?

* * *

For a moment before ten o'clock, when he was to return to his cell, he talked quietly in the corner with his minister, Sandy, while I once more telephoned Washington.

Finally, the time had come to go back into the cellhouse. Edward had told Paul that he wanted his story to be told, and the cameras followed us back all the way. This simply added to the sense of total unreality -- the sense that at some point the producer would say the movie was over.

At this point, only his minister and his attorney were permitted to be present. Edward's cell was at the far end of the block, past thirteen other men condemned to death.

All were Edward's friends, and several men I knew, nine of whom in the unit I also represent. Sam Johnson, just two cells along from Edward, another black man there for supposedly killing a white police officer. Again, and this is rare but emotionally important, sentenced to death for something another man had done. Two men very similar in ways beyond their shared name.

Sam smiled with encouragement at both Edward and me, but I could see the sadness deep behind his dark eyes. No talking to my other friends and clients, the guards had said.

At each door, there was the wait for the guard to open it with the electric control. Then Edward, Sandy and I were locked inside his little cell. Just a rose she had brought for him, letters from well-wishers on the bed, and a battered old television on the metal shelf at the end. Edward flipped the knob on the television, that unreliable link to the world outside and so far away. The vacuous announcer was intoning Edward Earl Johnson's loss in the District Court, and I even forgot my customary irritation that everyone else should be called "Mr.", while the black and the poor on Death Row are always called by their first names, a peculiarly Southern lack of respect.

Thankfully, we could turn to the letters piled on his bed, lest the heartless media might be the ones to bring any bad news in their customarily insensitive "objectivity". Earl Dycus, until a fortunate appeal on Death Row for a crime far worse than that alleged against Edward, wrote how much he loved and missed Edward's company now that he had been transferred away from the unit. A letter from Sandy had taken a week to arrive, and Edward read her words as she sat there.

A guard told me that there was a telephone call. Edward smiled at me, and I walked briskly back along the cell block, out to the telephone at the front. When I picked up the receiver, there was no response. Finally, I could hear Rob's voice in the background, as he came back to the phone. Seven-to-two, he said. Only Brennan and Marshall dissenting, and they do in every death penalty case. Justice Brennan wrote a four page dissent on one issue we had raised. Small comfort. Somehow it would have been easier if some more of them had understood what this was all about, even in the two hours that they had considered Edward's life.

It was much further back to the cell than it was leaving it. And yet, I arrived there too soon. Edward looked at me and smiled, when I said, "They turned us down, seven-to-two."

"So, it's just the Governor." I told him all the reasons why the Governor ought to grant clemency -- no flattery, but simple truth. I told him of all the good people who had intervened on his behalf. Edward squeezed my hand. Gradually, we drifted back to talking about the letters he had received. Each of his friends from the prison had sent him a stamp, so that he would be able to reply to them . . . the next day. And to think that everyone on the outside world, watching the news in between meaningless soap operas, doubtless believed there to be no goodness in a place such as this.

When they came to say that there was another call for me, I squeezed Edward's shoulder, and walked away. When you think you did badly on an exam . . . . When a relative has been ill in hospital . . . . Any attempt to explain trivializes the sensation, for here we deal with the calculated decision, after several days' deliberation, made by the governor to kill a friend of mine. I remembered feeling sad when my grandmother died, but Nature had taken her course. That grey night, in a grey cell block, surrounded by grey people, seemed qualitatively different, qualitatively more cruel, even though I had been so close to her.

But when Ken Rose first came on the phone from Jackson, he said we had lost in the Supreme Court. Momentarily, a surge of relief came over me -- we already knew that.

"The Governor denied." So expected, yet so harsh. How to move? How to go to tell Edward that the last heartless, shameless, barbarian had decreed that he should die? Probably after coffee in the Governor's Mansion, with due consideration of the favorable press the next morning. Truly, truly, a sick world.

It springs to mind -- the hardest moment in my life. What a frivolous, absurd thought! Edward is to die, and I am thinking of how difficult it is for me to tell him. Ridiculous.

There was no point sitting there alone. Albeit, I think, with the surreal cameras from the BBC -- there was nobody else in that world. There was only how to say it, how to tell Edward that the world wanted to kill him, at an hour certain, still fifty long/short minutes away.

I walked back -- and I am ashamed to have to keep using the word "I". This is not my story but Edward's, yet I do not think I could ever have the depth of understanding to be able to tell what emotions he went through, or even how he could approach so harsh a death so calmly. Psychologists will doubtless give their opinions, dressed up in the semblance of learning, but they never knew Edward. And, how I wish I had had the chance to know him better, over the years which we could have shared.

I walked back, at first, with slow, aching steps. But then I remembered Edward and the other men on the block, and I knew I could not bow my head. I therefore quickened as I entered the cellblock, walked to his door, and sat on the bed next to Edward.

"He turned us down." Edward seemed totally unmoved. Only Sandy suggested that we should pray. She said some things which perhaps some can believe, and from which perhaps Edward drew strength -- yet, I find it small comfort to be told that God has a purpose for this senseless, senseless barbarism.

In the end, after Sandy told Edward that God loved him -- true, I am sure -- I told Edward that Sandy and I, and many others, loved him also. He looked straight ahead. . . . So we sat on the bed once more, and Edward agreed with Sandy that there was still time for miracles.

What can I say? The time passed. A handwritten note came around from the next cell, and another was delivered by a guard. Willie Reddix wrote that everyone in the unit was praying for him, and just thanked Edward for being such a friend. It was actually only ten minutes before Commissioner Cabana came to say that it was time to go to the isolation cell, just a few short yards closer to the gas chamber.

Why do they make up these names? Isolation Cell. Hardly designed to make anyone feel more human about such a human tragedy, but then that is doubtless the purpose. It was just a small whitewashed room, two heavy solid steel doors, and a tiny window above a prayer bench and a simple wood cross.

It is so hard to know what to say. Paul Hamann pretended to be interested in who made the wooden cross. Another inmate, said Cabana. Although Edward still talked about hope, Sandy read some verses from the Bible concerning how God is with us in Heaven as well as on Earth.

Indeed, Cabana, who I must suspect abhorred the death process as much as anyone, tried himself to be human. I admired him for his good intentions, but again the words seemed so tactless at a time when nothing could really be appropriate:

"Edward, I have to tell you that I have a tremendous amount of respect for you," he said. "And you'll remember what you promised me? You'll put in a good word for me with the Man Upstairs?"

As each person spoke, and each statement seemed so out of place, I tried myself to think of a way to break the eternal silence which periodically seized us all. Edward looked at me, and I smiled, and told him, "It ain't over till it's over." What a strange ebb and flow between hope and the need to prepare for the seemingly inevitable. As Paul and the two others from the BBC crew prepared to leave, Paul turned away to hide his tears. Edward noticed, however, and told him, "Hey, Paul, keep your chin up." At this incredible display of courage and humanity, the tears welled in the eyes of the other BBC men.

Cabana came in and presented the strangest monologue of all. "Edward," he said. "I'm going to tell you this so you won't be surprised by anything. In a few minutes, two medical personnel will come in, and they will tape two stethoscopes to your chest. They'll also tape two EKG terminals to you. They may have to shave a little hair off to do that. They'll put them on so that they can tell when your heart stops beating. Okay? I just want you to know what they are doing."

Now, it is no reflection on Cabana, who had to try to think of something to say on an impossibly cruel stage. But I wondered then if maybe it wouldn't have been kinder to use the apology used by those whom history already has condemned, who told their Jewish victims that a shower awaited them in the gas chambers.

It was all so unreal. Edward sitting there so calmly, nodding as Cabana spoke, and everyone else just listening as if this was really something quite normal for a civilized world to do. Against reality, I just kept waiting for someone to call it to an end, and tell Edward he could come home with me.

Edward turned to Cabana, and I am sure his words reminded some there of Jesus Christ: "Mr. Cabana, I just want to thank you for everything you've done for me." My mind was far from such analogies to the Bible, as I was simply astounded that a human being could really be so kind.

Edward then thanked Paul. . . . He hugged the other two BBC men, and said goodbye. As they left, he turned to Sandy, and said he had something he wanted to say to her:

"You've done a lot for me these days, but I want you to remember that you've got a lot more to do out there," he said, gesturing to where the other 45 men waited on Death Row. "Don't ever give up. You've got to remember that. Don't ever give up. And tell my family not to take it too hard, okay?"

I sat there, afraid, to be honest, of what Edward might say to me. We had tried, goodness knows we had tried. We ought, in a fair world, to have won it for him, and stopped this all hours before. But there is always something else you can do, and if I had just taken on his case earlier, if . . . .

But he turned to me, and thanked me. He said we'd done everything we could have. Then he smiled, and said, "It ain't over till it's over." I managed to quell the tears before Edward could see them coming, that anyone could want to kill a man like this.

The room was so hot. I used a legal pad to fan the air a little, as Edward seemed ashamed that he was sweating. It was oppressive, and much quieter, now that the BBC people were gone. I was thankful when Sandy suggested we sing something, pointing to a verse in the Bible. She led us, but neither Edward nor I knew it. But it was strengthening to hear voices, strong and calm, even if out of tune.

We sat together again for a while, and I held an arm tightly around Edward's shoulder, while Sandy gripped his hand. Edward looked straight ahead, and said, "I suppose everyone wonders what a man thinks when he is about to die." It was a question thrown out, without an answer. And then, "Well, it ain't over till it's over."

The silence descended again. I suggested another song, and Sandy asked Edward what he would like. Edward thought, for what seemed a long, long time. I remember that I had the sense that he was being put on the spot -- it is so hard to choose a favorite something at the best of times, and yet to choose a song at a time like this . . . . "Amazing Grace" suddenly came into my mind, and at the same second, Edward suggested that. I was grateful that we had a song we all knew, so that we could sing loud and long. Sandy even had the words, on a little card she had been given by another prisoner.

Somehow the words she had did not have the part about saving a "poor wretch like me." I remember feeling glad, since I just did not want the word "wretch" spoken in a context in which it could be associated with Edward. So inappropriate to describe him.

Then the "medical technicians" came in, and told Edward to lift up his shirt. I'm glad Edward did not look at me at that moment. I was so angry. How could those sworn to save lives assist in this gruesome ritual? What had happened to the Hippocratic Oath?

They took heavy grey binding tape which one might use to wrap a parcel, and wrapped it twice tightly around Edward's chest. He even helped them, politely holding it for them. One of those faceless men -- though his face will remain with me always -- then shaved a little hair next to each of Edward's shoulders, and attached the EKG contacts.

I was grateful that Sandy had the thoughtfulness to tell Edward to put his blue shirt back on, restoring his dignity after this horrible scene. Edward just smiled, saying they had done it rather tightly, and maybe they wanted to suffocate him already.

Almost immediately, Cabana came back in, and said, "It's time."

Edward reached over and hugged Sandy. Then, child-like, he kissed her on her cheek, and said goodbye.

He turned to me. I said, no, I would come with him. So we put an arm around each other's shoulder and walked in there.

I was glad to be there with him. There seemed to be a dozen grey-faced guards in the small room which surrounded the gas chamber. I -- and I am sure, Edward -- had never before seen the gas chamber. I would that I will never see it again. No description of the roughly-welded oval, something like a diver's bell with four windows for the spectators, can capture the grey evil of that sight.

I put my arms around Edward, and we hugged each other. He whispered in my ear. At first, I did not hear, and asked him to repeat it. He said, "Do you know something that I don't know?" He looked at me hopefully. For a moment I did not understand. Then it hit me -- somehow, he thought I still knew something that would put a stop to all this.

It is impossible for anyone to know what to say, me least of all. I mumbled something, sincere but innocuous, about him knowing more about so many things than I would ever know. I hugged him once more, and said goodbye. As they strapped him into that disgusting chair, he looked at me. I smiled and signed thumbs up. He smiled back at me.

Then the guards told me I had to leave.

The door lead outside. I felt an overwhelming nausea. But the air was so fresh and cool, and the stars so full of life. A guard motioned for me to go into the witness room.

I just felt an urge not to follow the procedure that was making it so damned easy for them. So I walked over to where Sandy was standing -- and she suddenly burst into tears, letting emotions from the hours of brave encouragement flood out. As we lent against a van, its engine still hot from bringing some person who apparently wanted to be here, she sobbed that she could not go in. I told her that of course she should not -- what purpose would it serve?

Myself, I wavered. I similarly felt that there was nowhere on Earth I would rather be less than in that witness room -- "Observation Room", as they called it. I knew that I should be there. There was a phone. Once before an execution had been stopped because they botched it, and the lawyer was there. Who knows, in an insanely unreal world, what might happen? So I went.

Fortunately, I had a chair next to the red and black telephone, high at the back where I could not really see anything. The air conditioner was on, and a large curtain (black, to be appropriate at last) over the windows into the chamber. I took off my glasses, and held my head in my hands, unable to believe that I was really in the witness room to Edward's execution. How could this be . . . .

Rather than miss any sound, someone turned off the noisy air-conditioner on the order of some official. He seemed to be the Master of Ceremonies for this perverse occasion, and took his job seriously, explaining the minutiae of the minutes to come. I could not listen, though others seemed rapt in attention.

There were five media people there. Three guards from the prison. The attorney for the prison, who I had met at a party in the house of a friend in Indianola, Mississippi, a year before. And others I did not know. Nobody cared to look in my direction. When they caught my eye, they turned away -- ashamed, I liked to believe. Although the only ones who truly looked uncomfortable were the guards, who at least knew Edward in passing his cell.
One media person, whose name shall not be mentioned, did acknowledge my presence. He wanted an interview. Was there no human decency? Could a person be so ignorant of human emotion?

Then, boisterously to his fellow journalists, the man began to ask a series of phenomenally absurd questions as to the details of this media event. The curtain was drawn, and this semi-human was interested in the color of Edward's shoes, the cloth of his trousers . . . it was the depths of depravity.

I was drawn between a desperate need to look at Edward in case I could reassure him, and a terrible desire not to look, and not to rob him of his dignity at this most undignified moment. In the end, when he spoke, I could not but look. He said, "I guess they won't call. I guess they won't call." Only now, only now, did the reality of this horrid nightmare come to him, and I could not help him. He was strapped so that he could not see those who had chosen to watch him die.

I never looked again. I did look at my watch. After five hours of not wanting to see time go by, I wanted every second to go faster. I could not understand, they just kept him sitting there for eight minutes, doing nothing. At one point, Edward said, "Please, let's get it over with." But the timetable could not be changed simply to comply with the elements of human consideration.

The telephone rang. Before any fleeting hope could cross my mind, the guard said that was the signal for it to begin. I wondered later if the sound registered with Edward through the far-from-sound-proof walls, and if for a second the cruel thought came to him that this was the call that was never to come. Just another sadistic coincidence in the procedures which legitimized Edward's death.

Those next seventeen minutes would be those upon which the media would dwell. The only questions they would ask would be what death was actually like. From the sounds of gasping for breath, and the excited chatter of the ghouls in that ghastly room, it could not have been easy, even discounting the hours and weeks of psychological torture leading up to it. But I was far away. We can leave it to others to downplay the terror of the death of a man they will never know, and ignore the courage of a friend who goes silently to a better place.

"The prisoner is officially dead." Edward could not even die without the permission of the official procedures. I wanted to be sick.

I was in front of everyone as the door opened. The reporter tapped my shoulder for an interview, but I was too sad even to tell him of his depravity. There was an eager discussion among those who never knew Edward, but I walked as fast as I could from one locked gate to another, and waited until the lock clicked back on each. And at last I was out, heading to my car, those terrible people and that terrible place behind me.

A group of guards were laughing around their vehicle as I left to drive to the chapel. I recognized some family members as I pulled up. As I got out and walked towards them and the reality set in, for them and for me. Edward's cousin screamed; his sisters started sobbing uncontrollably. And at last I could weep too. For a long, long time. No words were spoken, save for exclamations about good Edward.

A long time later, everyone was beginning to decide what to do. The sadness and anger was once again building up in me, and I asked Edward's uncle if I should make a statement on behalf of the family to keep the press, already snapping at the fence, from further indecencies. He said he thought it would be a good idea. I knew it would be a catharsis for me, and I doubted I would regret next morning anything I might say.

So I drove to the finale of this strange, revolting history. The press was gathered in an auditorium near the prison exit, cameras trained upon the spot where Cabana would soon make the next official announcement regarding "the prisoner", my friend. The five media witnesses were lined in their seats, smugly anticipating their opportunity to describe, in fine objectivity, their wonderful journalistic experience. It was not easy, it seemed, to separate this from a press-conference after a football game.

Cabana took no pleasure from a brief official announcement. However, then the journalist from the witness room went into an eternal discourse on how easy it all seemed, and how he had noted in intimate detail the remains of Edward's last supper of shrimp, such a fine treat for such a poor black boy. Oh, how the blood boils. . . .

There is neither the time nor the eloquence when most one needs it. I could tell the hundred and fifty reporters just a tiny part of what I wanted the world so much to hear. How much better a person Edward was than me, and, I suspect, than most of them. How absurd taking his life was. How truly incredible and sickening it was that anyone would want to watch Edward die, and then describe it by emphasis on a shrimp dinner.

And their question: "How does his family feel about it?" What is the point of talking?

I was grateful for the BBC crew who all cried outside. I was grateful for Tom Brennan, from the Jackson newspaper, who said he did not want to talk about it at all. I was grateful for the tears that periodically overwhelmed me, and forced me to stop the car. But, as I drove 130 miles back to Jackson in the early morning, how, oh how, could they have done this to Edward?

Gray & Stanley, A Punishment in Search of a Crime, at 178-86 (1989).
8. And how will those final moments torture Mr. CLIENT when finally they do arrive? Whether because of shoddy technology and poorly trained personnel -- as in the recent case in Alabama, where the retarded Horace Dunkins was not killed for 30 minutes because the executioner attached the wires the wrong way around -- or because of the inherent problems with killing a fellow human being, it is an inescapable fact that the history of executions in this country has been characterized by repeated failures swiftly to execute and the resulting need to make recurrent efforts to ensure the prisoners' deaths.
9. Our cultural lore is filled with examples of attempted executions that have had to be restaged when it was discovered that the condemned "tenaciously clung to life." R. Elliott, Agent of Death 66 (1940) (hereinafter Elliott). See generally Bedau 15; Duff 121; J. Pritchard, A History of Capital Punishment 65 (1932); Teeters 448-449; Gardner, 39 Ohio St.L.J., at 126; 1972 Hearings, at 305-306. Robert Elliott, Sing Sing's long-time electrocutioner, described in his memoirs a number of failed attempts to execute prisoners. See generally Elliott 57 ("Fred's heart . . . was still beating, and he was alive. There was only one thing to do: put him in the chair again"). It is difficult to imagine how such procedures constitute anything less than "death by installments" -- "a form of torture [that] would rival that of burning at the stake." Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 474, 476, 67 S. Ct. 374, 91 L. Ed. 422 (1947) (Burton, J., dissenting).1
10. The pattern of "death by installments" is by no means confined to bygone decades. There is considerable evidence suggesting that execution as has been practiced in Louisiana during Mr. CLIENT's stay there causes far more than the "mere extinguishment of life." In re Kemmler, 136 U.S. at 447. This evidence, raises a substantial question whether this State's practice violates the Eighth Amendment in several respects. First, execution as practiced in this State has inflicted "unnecessary and wanton . . . pain" and cruelty, and to cause "torture or a lingering death" in at least a significant number of cases. Gregg v. Georgia, 428 U.S., at 173, 49 L.Ed.2d 859, 96 S.Ct. 2909 (opinion of Stewart, Powell, and Stevens, J.J.); In re Kemmler, 136 U.S. at 447. Second, the physical violence that accompanies execution would seem to violate the basic "dignity of man." Trop v. Dulles, 356 U.S. at 100, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1959) (plurality opinion). Finally, even if execution does not invariably produce pain and indignities, the century-long pattern of lingering deaths suggests that the methods of execution carry an unconstitutionally high risk of causing such atrocities. Louisiana ex rel. Francis v. Resweber, 329 U.S., at 471 (Frankfurter, J., concurring).
11. Indeed, the ultimate act of Mr. CLIENT's execution is not the only indignity he must suffer. The thousand days -- and counting -- that he will have to suffer in the disgusting conditions of death row will be torture enough. A short while ago, in The Soering Case (1/1989/161/ 217) the European Court of Human Rights refused to allow extradition of Jens Soering to the State of Virginia to face capital charges. The basis of the Court's decision revolved around the so-called "Death Row Phenomenon", id. at Paragraph 81, whereby individuals are forced to exist under minimally tolerable physical conditions for years prior to any sentence of death being carried out. As the European Court detailed:
The size of the death row inmate's cell is 3 m by 2.2 m. Prisoners have an opportunity for approximately 7.5 hours' recreation per week in summer and approximately 6 hours' per week, weather permitting, in winter. * * * The applicant adduced much evidence of extreme stress, psychological deterioration and risk of homosexual abuse and physical attack undergone by prisoners on death row . . . .

Id., at Paragraphs 63, 64.
12. Mr. Soering alleged, and the European Court found, that these conditions constituted a violation of the international law requirement that "[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment." Id. at Paragraph 80. "Treatment has been held . . . to be both 'inhuman' because it was premeditated, was applied for hours at a stretch and 'caused, if not actual bodily injury, at least intense physical and mental suffering', and also 'degrading' because it was 'such as to arouse in [its] victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.'" Id. at Paragraph 100. Referring to the strict regimen on death row, the Court held that "the severity . . . is compounded by the fact of inmates being subject to it for a protracted period lasting on average six to eight years." Id. at Paragraph 107.
13. As Mr. CLIENT will demonstrate at a hearing on the matter, the horrendous physical and mental anguish engendered by the "Death Row Phenomenon" cannot constitutionally be imposed on Mr. CLIENT consistent with the Eighth Amendment. Neither can the United States permit such abuses to occur consistent with their international obligations set forth in Articles I, II, XI, XVIII, XXV and XXVI of the American Declaration of the Rights and Duties of Man (hereinafter the American Declaration), adopted at the Ninth International Conference of American States in 1948, as informed by Articles 1(1), 7(6), 8(1), 24 and 25 of the American Convention on Human Rights (entered into force, June 1978) (hereinafter the American Convention); Articles 1, 2, 5, 7, 8 & 10 of the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on December 10, 1948; and, Article II of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly on 9 December, 1948 (hereinafter the Genocide Convention).
14. The same is true under the state and federal constitutions. It is now well established that the Eighth Amendment applies to the States through the Fourteenth Amendment. See, e.g., Gregg v. Georgia, 428 U.S. at 168 (opinion of Stewart, Powell, and Stevens, J.J.); Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962). The Clause thus has an expansive and vital character, at that "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) (plurality opinion); see also, Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (methods of punishment cannot transgress contemporary "'broad and idealistic concepts of dignity, civilized standards, humanity, and decency'"). Accordingly, Eighth Amendment claims must be evaluated "in the light of contemporary human knowledge," Robinson v. California, 370 U.S. at 666, rather than in reliance on century-old factual premises that may no longer be accurate.
15. To be sure, the fact that the legislature chose to sanction executions cannot shield the law from judicial review. In common with all constitutional guarantees, "it is evident that legislative judgments alone cannot be determinative of Eighth Amendment standards since that Amendment was intended to safeguard individuals from the abuse of legislative power." Gregg v. Georgia, at 174, n. 19 (opinion of Stewart, Powell & Stevens, JJ.); see also, Weems v. United States, supra, at 371-373.
16. "[T]he Constitution contemplates that in the end [a court's] own judgment will be brought to bear on the question of the acceptability" of a challenged punishment, guided by "objective factors to the maximum possible extent." Coker v. Georgia, 433 U.S. 584, 592, 597, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977) (plurality opinion). Thus it is firmly within the "historic process of constitutional adjudication" for courts to consider, through a "discriminating evaluation" of all available evidence, whether a particular means of carrying out the death penalty is "barbaric" and unnecessary in light of currently available alternatives. Furman v. Georgia, 408 U.S. 238, 420, 430, 92 S. Ct. 2726, 33 L. Ed 2d 346 (1972) (Powell, J., dissenting).
17. What are the objective factors by which courts should evaluate the constitutionality of a challenged method of punishment? First and foremost, the Eighth Amendment prohibits "the unnecessary and wanton infliction of pain." Gregg v. Georgia, at 173 (opinion of Stewart, Powell & Stevens, J.J.). See also, Coker v. Georgia, at 592 (plurality opinion) (a punishment is excessive if it is "nothing more than the purposeless and needless imposition of pain and suffering"); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463, 67 S. Ct. 374, 91 L. Ed. 422 (1947) ("The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence"). Thus in explaining the obvious unconstitutionality of such ancient practices as disemboweling while alive, drawing and quartering, public dissection, burning alive at the stake, crucifixion, and breaking at the wheel, the Court has emphasized that the Eighth Amendment forbids "inhuman and barbarous" methods of execution that go at all beyond "the mere extinguishment of life" and cause "torture or a lingering death." In re Kemmler, 136 U.S. 436, 447, 10 S. Ct. 930, 34 L. Ed. 519 (1890).
18. It is beyond debate that the Amendment proscribes all forms of "unnecessary cruelty" that cause gratuitous "terror, pain, or disgrace." Wilkerson v. Utah, 99 U.S. 130, 135-136, 25 L. Ed 345 (1879); see also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 473-474, 67 S. Ct. 374, 91 L. Ed. 422 (1947) (Burton, J., dissenting) ("Taking human life by unnecessarily cruel means shocks the most fundamental instincts of civilized man. It should not be possible under the constitutional procedure of a self-governing people . . . . The all-important consideration is that the execution shall be so instantaneous and substantially painless that the punishment shall be reduced, as nearly as possible, to no more than that death itself").
19. The Eighth Amendment's protection of "the dignity of man," Trop v. Dulles, at 100 (plurality opinion), extends beyond prohibiting the unnecessary infliction of pain when extinguishing life. Civilized standards, for example, require a minimization of physical violence during execution irrespective of the pain that such violence might inflict on the condemned. See, e.g., Royal Commission on Capital Punishment, 1949-1953 Report Paragraph 732, p. 255 (1953) (hereinafter Royal Commission Report). Similarly, basic notions of human dignity command that the State minimize "mutilation" and "distortion" of the condemned prisoner's body. Id. These principles explain the Eighth Amendment's prohibition of such barbaric practices as drawing and quartering. See, e.g., Wilkerson v. Utah, at 135.
20. In evaluating the constitutionality of a challenged method of capital punishment, courts must determine whether the factors discussed above -- unnecessary pain, violence, and mutilation -- are "inherent in the method of punishment." Louisiana ex rel. Francis v. Resweber, at 464. If a method of execution does not satisfy these criteria--if it causes "torture or a lingering death" in a significant number of cases, In re Kemmler, 136 U.S. at 447--then unnecessary cruelty inheres in that method of execution and the method violates the Cruel and Unusual Punishments Clause. To quote the eloquent words of Justice Brennan:

For the reasons set forth above, there is an evermore urgent question whether [a particular form of execution] is a "humane" method for extinguishing human life or is, instead, nothing less than the contemporary technological equivalent of burning people at the stake.

Glass v. Louisiana, 471 U.S. 1080, 105 S. Ct. 2159, 85 L. Ed. 2d 514, 525 (1985) (opinion of Brennan, J., regarding denial of certiorari). The question is simply answered: The manner of execution in Louisiana plumbs the depths of purposeless depravity.
WHEREFORE, Mr. CLIENT respectfully requests that this Court set his motion down for an evidentiary hearing, and that this Court bar the state from seeking the death penalty as cruel, unusual and degrading punishment.
1. Louisiana's execution of Willie Francis remains the most notorious example of botched manner is which so many executions have been conducted. Sheriff Harold Resweber described the first attempted electrocution as follows:

"Then the electrocutioner turned on the switch and when he did Willie Francis' lips puffed out and he groaned and jumped so that the chair came off the floor. Apparently the switch was turned on twice and then the condemned man yelled: 'Take it off. Let me breathe.'"

Id. 329 U.S., at 480, n.2 (Burton, J., dissenting). Another witness gave this account of the aborted attempt:

"I saw the electrocutioner turn on the switch and I saw his lips puff out and swell, his body tensed and stretched. I heard the one in charge yell to the man outside for more juice when he saw that Willie Francis was not dying and the one on the outside yelled back he was giving him all he had. Then Willie Francis cried out 'Take it off. Let me breath.' Then they took the hood from his eyes and unstrapped him. . . . This boy really got a shock when they turned that machine on."

??

(..continued)