*1 (Nоrris, J., dissenting). analysis in legal tion.7 The of our at We several F.2d penalty opinions, in Mason. Mason v. so recent has been —to failed do (9th Cir.1993) put charitably faulty, and as a Vasquez, F.3d result — are, J., dissenting best, highly ques- from the order of ultimate (Pregerson, decisions (Noonan, court); J., Moreover, id. the en banc tionable. the errors are cumula- dissenting the order en bane upon from tive one as flawed case builds another. court). again, understandable, fail Tonight, given we once this All of be prior speed our time we break all records pace required at which have been to act. we doing However, so. while in my opinion, price far too high. This is not how law should made speed prevent we has with which act certainly not life case—and when human developing body ed us from coherent Perhaps someday is at stake. we will slow pause give do corpus habeas law. We give petitioners down and habeas the fair and rigorous posi intellectual examination adequate they are federal review to which deprived oppor are tions we take and Only acting entitled. then will we be like tunity thoughtful ex and reasoned Accordingly, law. court of I dissent. changes of that are views so essential judicial decisionmaking. proper It is the
subjecting analysis by of ideas careful frequently forges opinions
others that positive result creative advances Instead, area, corpus law. in the habeas we gaps jurispru up end with serious in our and, often, with dence decisions logically address flawed. None our cases CAMPBELL, question of Charles Rodman
es the critical what constitutes a Petitioner-Appellant, hearing “full and fair” state-court within the See, § meaning e.g., Rich 28 U.S.C. 2254. (9th Ricketts, mond v. 774 F.2d 961-62 WOOD,* Superintendent, Washing Tana Cir.1985). questions critical have been Other Penitentiary, Walla, ton State Walla similarly ignored. example, For how can a Washington; Gregoire,** Christine O. present “meaning petitioner next-fiiend ever Attorney General, Washington, State of incompetency ful evidence” of a defendant’s Respondents-Appellees. standing to a district court he lacks request examinations or to cross- medical No. 89-35210. place? examine witnesses the first United of Appeals, States Court short, emphasis I believe that because of our Ninth Circuit. substance, speed body our entire over standing badly law is next-friend underrea- Argued 1993. Submitted Jan. underdeveloped. soned Submission Withdrawn Jan. 1993. all, we make when Worst bad law we Submitted Nov. 1993. questions are forced to decide life or death them, opinions regarding and to issue all Decided Feb. 1994. example, opinion within hours. For our Court, Gomez v. States United District (9th 1992), Apr. 20,
WL 155238
was
Cir.
so
publica-
flawed that it was
withdrawn
*
Officially,
opinion
Blodgett pur-
Wood
withdrawn moot.
Tana
is substituted for James
Court,
43(c).
See
F.2d 463
in other
ed under
ly published.
States
v. United
District
Fed.R.App.P.
Gomez
suant to
(9th
1992). However,
opinions
Cir.
our
**
petitioner
Gregoire
O.
Christine
is substituted for Kenneth
in which the
was execut
cases
subsequent
43(c).
Eikenberry pursuant
Fed.R.App.P.
similar circumstances were
O.
See,
Brewer,
1021;
e.g.,
989 F.2d at
Mason,
664
I proce- begin with an overview of the
We Campbell’s background of dural and factual prior petitions his current and conviction and post-conviction relief.
A of three counts of
Campbell was convicted
aggravated murder and sentenced
death.
Washington Supreme Court affirmed
Campbell,
v.
and sentence. State
conviction
(1984).
&
personal
as a
restraint
treated the motion
titioner-appellant.
18, 1985,
July
denied the
petition, and on
Weisser,
Attorney Gen-
Assistant
Paul D.
petition
stay
motion for a
and dismissed
Jones,
Attorney
eral,
Gen-
Assistant
John M.
22, 1985,
July
Campbell
on the merits. On
respon-
eral,
Washington, for the
Olympia,
petition in the United
corpus
filed
habeas
dents-appellees.
Western Dis
District Court for the
States
court
Washington. The district
trict of
Campbell’s
granted
stay of the execution.
claims,
petition
61
40
made
had not been ex
determined
district court
Campbell amended
in state court.
hausted
WALLACE,
Judge,
Before:
Chief
21
claims to the
petition
his
to limit his
POOLE,
BROWNING, TANG,
D.W.
court held
claims. The district-
exhausted
REINHARDT, BEEZER,
NELSON,
12,
February
evidentiary hearing, and on
O’SCANNLAIN,
THOMPSON,
WIGGINS,
1986,
petition.
af
the habeas
We
denied
KLEINFELD,
Judges.
Circuit
6,1987. Campbell v. Kin
firmed on October
Cir.1987)
(9th
cheloe,
(Camp
F.2d 1453
BEEZER,
Judge:
Circuit
I).
rehearing
petition for
denied the
bell We
rehearing en banc.
suggestion for
and the
Campbell was convicted
Charles Rodman
denied certiorari.
Supreme
The
Court
aggravated first-
in 1982 of three counts of
948,
Kincheloe,
Campbell v.
to death. We
degree murder and sentenced
(1988).
380,
dis
Hendrickson’s throat
had been
Wicklund
leaving
against Campbell
were former
a seven-inch wound. She
of a
witnesses
died
hemorrhage.
generally
v.
their
were
massive
State
murders
related to the exercise of
trial,
Campbell,
missing. Campbell’s acquain- Another of respect tive assistance of to counsel tances, Kedziroski, Debbie that testified selection; presence jury of his waiver Campbell early visited her afternoon April Camp- 14. Kedziroski testified that (3) pen- Whether death proposed sexual and bell to have relations statute, 10.95, alty pro- Wash.Rev.Code but tugged her clothes did not hurt her. mandatory penalty death formula vides a provide appropriate to and fails reliable day Campbell Items seized from on the sentencing authority for standards to pair a earrings the murders included determine whether sentence death belonging a witness identified as to Renae imposed; should be earring Campbell’s An found in Wicklund. (4) by car was a business identified associate Whether the trial court’s instructions present unconstitutionally birthday given jury Renae’s as a limited the he had jury glass mitigation; to A found in the could Shannah. Wieklunds’ facts the consider (5) he had a con- judge Campbell has informed Campbell been denied Whether during jury right present to counsel' and ade- stitutional be assistance of effective absent, selection, he post- in his and if he were to the courts quate access lawyers select help not be able to his proceedings; would conviction jury. judge Campbell that warned (6) by court erred the district Whether jurors might approve not (cid:127) selected he of the stay Campbell’s motion for denying attorneys. judge advised his also providing an and ade- execution contact Campbell that he would have little hearing; quate evidentiary lawyers they Spokane. were in with his while (7) by hanging vio- Whether execution Amendment; and lates the repeatedly that he un- Campbell indicated quali- repercussions of his decision. Washington employs derstood the Whether war- He stated: personnel fied to execute
rant. I a lot of in Mr. Mestel confidence They Savage over there. going
and Mr. II trying pre- living. that for a I am do myself I pare my part in the trial and Campbell that a defendant contends togeth- trying get my to relax head am right capital case can never waive the Spokane I will be going er.... feel like jury. empanelling We presence at My a real time will be inconvenience.... could, Campbell disagree. We hold that prepare I limited and will not be able to did, right present during his to be waive things working right I am now. It is jury. empanelling of the my stay decision to here Snohomish County I accomplish so that can that. A judge The state trial considered the matter pub- to the inordinate amount of local Due day Campbell further the next and informed charges against licity generated by the presence empanel- that his waiver at the trial, Campbell pending and his would, effect, ling jury irrevoca- be jury be trial court ordered that the selected difficulty getting Campbell due to the ble Courthouse, Spokane County at the loca- Spokane Camp- changed he his mind. County 275 miles east the Snohomish tion pres- stated that he bell still wished waive selected, jury was Courthouse. Once ence. The court concluded that there was County transported to for the Snohomish “good Campbell’s request cause” honor 21,1982, Campbell's trial. October attor- On Campbell impor- because felt he had more Campbell ney told the court that wanted to things in preparing tant to do for trial. The jury presence his at the selection and waive honoring request stated court also County. to remain in Snohomish Counsel “justifiеd by difficulty expense Campbell “legitimate had stated that fears” security means that have to be treatment he would receive from as to the transport us him taken to afford and the Spokane, prisoners and other officers security during any jury the course of selec- stay Campbell preferred “to Snohom- [in foreign county.” in a tion County] and on the trial ish concentrate future.” following executed the written *9 right present waiver of his to be at the objected immediately, prosecutor ex- The empanelling jury: of the Campbell pressing the concern was game, Campbell’s pro- being that he has playing a and that The defendant advised right Spokane posed was to create an an absolute to travel to waiver a tactic issue n jury judge' present during the appeal. The then addressed be the selection of satisfy guilt penalty phases the Campbell personally to himself that to sit in doing.1 by not Campbell knew what he was this cause of action and mindful that transcript day. Appendix Refer to A for the this hearing hearing following and the conducted the
671
1486,
(1985)
attending
jury
proceedings
curiam).
selection
he
84 L.Ed.2d
(per
486
precluded
challenging By pleading guilty
will be forever
from
charge,
to a
an accused
persons impaneled
may
those
his counsel or
right
jury trial,
waive the
to a
right
contesting
composition, knowingly,
self-incrimination,
its
against
right
and the
intelligently
voluntarily
waives his
Alabama,
Boykin
confront witnesses.
v.
395
right
present
238,
to be
to allow him to remain
243,
1709, 1712,
U.S.
89 S.Ct.
23 L.Ed.2d
County
in
prep-
Snohomish
to continue his
(1969);
States,
274
McCarthy v. United
459,
aration for trial.
466,
1166, 1171,
U.S.
89 S.Ct.
22 L.Ed.2d
(1969).
orally agreed
open
further
in
court
right
to waive his
to raise an ineffective
Campbell argues
right
pres
to be
assistance of counsel claim connected with
may
ent
not
capital
be waived in a
case.
right
present.
the waiver of the
to be
Al Campbell
nineteenth-century
relies on two
though
prosecution preferred
to have this Supreme Court
support
decisions to
aspect
agreement writing,
additional
of the
in
proposition.
Utah,
Hopt
In
v.
110 U.S.
judge
trial
the oral
found
waiver on
(1884),
4 S.Ct.
Taylor
17, 19-20, 332,
(1934),
v. United
capital
672
(1970),
disruptive
by
be
cannot
stated in a trial can never continue Lends judgment. ]that on informed The state based expressly been re- have correctly refusing defendant’s absence trial judge observed accepted stated that it jected.” The Court might'be Campbell’s request “an invitation to may right that a defendant lose the instead get ungovernable be back [to sent Sno- by consent present at trial or miscon- to be County].” A rational decision to homish 342-43, at 1060-61. Id. at duct. right waive the constitutional is entitled to weight imputed by as a same waiver' argues that Campbell further Bustamante disruptive Camp- conduct. We conclude that (9th Cir.1972), 269 dic- Eyman, v. 456 F.2d capable waiving right bell was be his right not waive to be tates that he could present jury. Bustamante, empanelling at the of the jury present at selection. attorney had waived pres- defendant’s tape recording of his when a was ence client C at
replayed jury. for Id. 271. We re- A relin waiver an “intentional versed, suggesting right both that could right quishment of a known waived, not, or abandonment right not be had Zerbst, privilege.” 304 fact, Johnson v. U.S. been waived: 1019, 1023, 464, 58 82 L.Ed. S.Ct. 1461 custody appellant capital Since was (1938). finding knowing and volun was not and his absence necessitat- offense tary question is a mixed of law behavior, waiver we disruptive ed hold that he not, fact we review de Terrovona not, which novo. v. right waive to* indeed could his did (9th Kincheloe, Cir.1988). F.2d 427 852 present courtroom at trial. Fur- be in the thermore, legal ultimate issue voluntariness is there is evidence that he question attempted right. requiring independent to waive this'- He federal even de Fulminante, voluntarily right have could not waived this termination. Arizona v. replayed, 1246, 1252, tape was because it before U.S. not even this appears that he was aware of L.Ed.2d 302 year replay until almost a later. Neither indulge every must We reasonable attempted that he is there evidence presumption against the loss constitu gained knowledge right after he waive present stage right tional tó be a critical at it. Allen, trial. at 90 S.Ct. at compelling.2 is not The dicta of Bustamante Still, difficulty concluding we have no 1061. right Had there been convinced that the we voluntarily, that Campbell knowingly, and in waived, absolutely not be not we would could telligently right presence at waived any analysis of engaged in whether a jury. empanelling of the authority had More recent waiver occurred. today. holding supports our We held remaining Thé notion Snohomish Raines, (9th F.2d Brewer v. County jury empanelled while the was Cir.1982), knowing, that a defendant’s volun- Spokane County originated Campbell. with tary, intelligent absence from his trial attorneys Neither his own nor the Snohomish right acts as a waiver of confrontation. County Prosecuting Attorney sought to de- prive Campbell right of his to attend the limit principled There is no basis for Spokane. Campbell’s noncapital proceedings attor- offenses a defendant’s abili ney ty voluntarily, opposed Mark Mestel3 was to the deci- knowingly, intelligently sion, right Campbell Nor presence. opposing waive the do we find but believed right may already fragile logic proposition in the the issue would undermine an represented phrase 2. To the could was Mr. Mestel and extent that "indeed may interpreted holding not” as a Anthony Savage Savage trial. Mr. conflicts, today decision we en our note that an prior Campbell's execution of consulted existing banc court overrule Ninth Circuit right jury present to be waiver of the selection. Inc., Co., Skaggs precedent. See LeVick Cir.1983). (9th F.2d *11 relationship. open jury. Correctly professional anticipating Twice Campbell that court, Campbell discussed his decision to claim attorneys that his were ineffec- spoke directly He presence. allowing with the tive him to presence, waive waive his judge. Campbell signed prosecutor secured, court, his trial written in open Camp- being fully any that after informed his bell’s waiver of claim waiver that counsel was deprive opportunity him of allowing absence would an deficient in him pres- to his waive attorneys jury jury on to advise his selection mat- ence at selection.4 never We have ad- ters, ability impair to his communicate with dressed whether a defendant waive the attorneys, preclude chang- his him right to claim ineffective assistance of coun- travelling Spokane his mind and to after We that question sel. reserve for another jury began. day, selection There has never been Campbell’s because counsels’ assistance ineffective, any suggestion Campbell incompe- despite that was was not the waiver. to tent execute the waiver. The terms of the prevail To that the claim his unambiguous. waiver are written they counsel were ineffective because allowed Campbell presence jury to during waive
D
process, Campbell
selection
must demon
(1)
Campbell's
The nature
waiver of
strate
that counsel “made errors so seri
right
presence provides
his
that
functioning
another basis
ous
counsel
was
as the
supporting
guaranteed
our conclusion. Criminal defen
‘counsel’
the defendant
agreements
Amendment,”
to make
dants
entitled
Sixth
that “the defi
n
rights.
performance prejudiced
affect their constitutional
Newton v.
cient
the defense.”
386, 393,
Rumery,
668, 687,
Washington,
Strickland v.
466 U.S.
(1987).
2052, 2064,
stances counsel’s per to evaluate the conduct from counsel’s Ill spective at the time.” Id. Campbell claims that he received ineffec- tive assistance of trial Applying principles, counsel because his these we have lawyers permitted Campbell difficulty concluding Campbell waive did right present empanelling at the not receive ineffective of trial assistance morning judge Campbell, 4. On the of October the court con- asked addressed him Campbell’s accepted incompe- sidered and "willing waiver of his he was waive claim of right present jury tency to be while [a] selected. counsel as result of waiver?” Appendix prosecutor explained Campbell A. The was careful to limit his waiver to the process, agreed he believed jury the written waiver should contain a waive selection dealing specific only clause future claim of ineffec- ineffective assistance claim prosecutor requested tive right present. assistance. The waiver of his to be The court writing objections waive in “all future ruled that the waiver need not be reduced competency writing. to be raised as to of counsel.” *12 674 right limited the factors and circumstances the his he decided to waive when
counsel jury mitigation. jury empanelling. dis- could consider The. presence hearing a at which both court trict conducted attorneys, Mark Mestel Campbell’s trial A Campbell in- Savage, testified. Anthony Washington’s death Campbell claims jury days before se- several formed Mestel imposes mandatory death penalty statute that he did not want attend. began lection argues penalty formula. that the statute He waiving against him his Mestel counseled balancing an test that impermissible creates Campbell emphatic presence. was right of jury making individual- prevents the ftom issue, prior from Mestel knew .of the The ized determination sentence. unlikely Campbell was experience that provides.that the sentence shall be statute Camp- honored change mind. Mestel “beyond jury death finds a reasonable request, on his conclusion that based bell’s mitigating not doubt that there are sufficient professional could maintain a way he leniency.” to merit circumstances Wash.Rev. Campbell to refrain relationship was 10.95.060(4). Code Section 10.95.070 allows against Campbell’s personal advocating from authority “any sentencing consider County stay during in Snohomish decision to deciding question relevant factors”
jury selection.
mitigating
provides a non-exclusive list of
court concluded
counsel’s
district
leniency.
merit
factors that could
not
representation was
ineffective. We
capi
motivated
agree. Mestel’s
decision
Individualized determination
preserving
a harmoni-
legitimate
constitutionally required.
concerns
sentencing
tal
Carolina,
Campbell.
280,
relationship with
working
We
ous
North
U.S.
96
Woodson
nothing
representation
(1976);
in Mestel’s
see
L.Ed.2d 944
Roberts v.
S.Ct.
objective
Louisiana,
stan-
Campbell
falls below an
428 U.S.
96 S.Ct.
.that
per-
(1976).
are also
explained
We
dard
reasonableness.
L.Ed.2d 974
As the Court
that,
against
argued
Woodson,
Mestel
al-
suaded
had
pres-
right of
lowing Campbell to waive the
process
significance
that accords no
[a]
ence,
resolving
we
be here
whether
relevant facets of
character
record
Campbell’s counsel were ineffective
circum-
of the individual offender or the
County
letting
stay in
him
Snohomish
particular
stances of the
offense excludes
events,
prepare
trial. That course of
we
for
in fixing
consideration
ultimate
believe,
greater
presented a far
would have
possibility
com-
punishment of death
relationship
undermining the
between
risk of
passionate mitigating
stemming
or
factors
Campbell
his counsel. To the extent
from the
humankind.
diverse frailties of
forced to choose between
that Mestel was
Woodson,
at 2991.
S.Ct.
evils,
profession-
agree his choice was
two
we
sentencing sche
Under the individualized
ally justified.
ma, the Court has struck
statutes that
down
mandatory
of death
provide
sentence
IV
crime,
upon
particular
of a
even if
conviction
Washington’s
Campbell claims
death
Shuman,
defined,
narrowly
Sumner v.
10.95,
statute,
is un-
penalty
Wash.Rev.Code
66, 107
(1987),
U.S.
L.Ed.2d 56
arguments:
He makes three
constitutional.
that limit the kinds of
as well
statutes
First,
argues
statute
Campbell
that the
cre- mitigating
sentencing
circumstances the
au
formula,
mandatory
death sentence
ates
Ohio,
consider,
thority may
Lockett v.
preventing
determina-
thereby
individualized
B Sanders, sought.” relief 373 U.S. at Campbell argues petitioner S.Ct. at 1077. A does not raise a penalty ground statute is unconstitutional by offering be- new different factual alle- plurality 5. Justice White wrote for a of four on does not state restricted Amendment issue; separately Justice Walton, 673-74, Scalia concurred challenge. 497 U.S. at judgment, stating position that the claim J., (Scalia, concurring). S.Ct. at 3068 that a unlawfully sentencer’s discretion has been arguments. jus- also failed to legal We are demonstrate “ends of gations or that, Campbell’s unpersuaded by argument tice” demand a redetermination. challenging he was petition, in his first statute, petition, in his second he is while V instruction; jury way, challenging the either Campbell’s We next address claims that he jury’s to- the directed under-
the claim is
right
has been denied
to counsel and mean-
obligations.
standing of its
during
ingful
access to
courts
collateral
*14
argues
Rupe,
that State
108
Campbell
v.
proceedings.6
II),
734,
(Rupe
P.2d 210
Wash.2d
743
1061,
2834,
denied, 486 U.S.
108 S.Ct.
cert.
Campbell
he
claims that
received ineffec-
(1988),
change of
These are
after
conviction became
correctly
Camp-
concluded that
final
must consider
district court
we
whether
Lane,
288, 109
challenged
Teague
previously
mitigat-
bell
had
S.Ct.
(1989),
ing-faetors
Campbell
prevents
appli
instruction.
cannot
Finley they are not and Giarratano There, to Giarratano. the Court reaffirmed apply to this case. Finley, holding applies capital that it to both
According Teague, noncapital Giarratano, cases. thorough S.Ct. at 2271. A review a case announces a new rule when it principles holdings in the Court’s ground imposes
breaks new
a new obli-
previous
penalty
cases led the Court to
gation on the States or the Federal Gov-
require
conclude that “these cases
the con
put
differently,
To
ernment.
case
Pennsylvania
clusion that the rule of
v. Fin
announces new rule
the result was
ley
apply
differently
should
in capital
by precedent existing
dictated
at the time
*15
10,
noncapital
cases than in
cases.” Id. at
the defendant’s conviction
final.
became
added).
(emphasis
demonstrating “that there exists this mat- previously litigated issues not which have ter C potential require sufficient merit further argument is that Campbell’s second court, necessary consideration this required to the courts meaningful access consideration, permit such the issuance of grant supreme court to counsel ade stay.” Campbell asserts that deadline pe post-conviction prepare his quate time meaningful him access to the courts. denied person his first state filed titions. July petition on al restraint Supreme held Court has Supreme peti his Court denied indigent must assure the defendant an “State days just seven July before tion on present his adequate opportunity to claims Campbell’s attor execution. his scheduled Smith, fairly.” Bounds peti habeas neys filed the first federal then 52 L.Ed.2d granted tion, federal court district omitted). Athough Campbell (quotation had July 1985. The stay of execution right meaningful under the counsel petition dismissed the because district court doctrine, counsel, appointed, once access his claims, and Camp unexhausted it contained represent to a was entitled fair chance attorneys petition filed an amended bell’s procedural history Given client. *16 only Despite including exhausted claims. case, Campbell's Washington Supreme claims, Campbell dismissal unexhausted obligation satisfied Court its constitutional in petition a state not file concurrent did personal under Bounds. In his second state raising claims. Camp his unexhausted court action, attorneys CampbeFs restraint raised denied, ultimately petition was federal beFs by the 40 unexhausted claims dismissed petition review this appellate conclud CampbeFs prior court. district Because I, Campbell F.2d in 829 1453 ed 1987. presented counsel had discovered and these Cir.1987). waited, (9th however, Campbell petition, in his claims first federal habeas in counsel order to until late 1988 seek Campbell’s new did not counsel in his claims a second raise unexhausted having to search the record for burden personal petition. restraint state Rather, errors. counsel were claimed afford days alleges already brief the issues Campbell that the Su- ed seven in grant presented CampbeFs petition. his counsel preme Court failed to ade- We sought for quate prepare Campbell times he also note that was aware three time to both years he collateral review. This is not the could raise the unexhausted state case. filing ample a strict deadline claims in state court. He had time in The court- set record, personal regard to his second state which to review the become familiar re- law, 1988, August sought In almost he petition.9 straint one with the and brief the issues year personal peti the district raise in his restraint after we affirmed court’s second I, relief, Campbell strategy if CampbeFs habeas see 829 tion. Even was to denial of 1453, Campbell petitioned Washing- agreed to see if wait this court F.2d unexhausted, him Supreme provide Campbell Court to with coun- claims were ton indeed pursuing adequate prepare, had to assist his unexhausted still time as sel him personal appellate process in a restraint review ended claims second state counsel, Campbell’s his one filed one month before scheduled terminated month before sched- execution, by accompanied amicus Washington Supreme was an re- uled execution. The Court by attorneys. Upon quest this second filed two appointed Washington immediately Appellate appointed request, court counsel. represent Campbell, and Defender Association to filing We therefore do ad- set no deadline. not peti- Campbell's personal 9. As to first restraint CampbeFs his counsel had dress claim that inad- tion, filing there was no strict deadline. Ever- personal equate prepare time to his first restraint represent green Legal agreed Services had petition. Campbell, their with the State but contract was knew, 27, light Campbell proceedings fact that on March and recommended yet prepared evidentiary that counsel be for that these claims had since hearing. court, petition application a reviewed stay were filed first March and the district had been defined his habeas issues evidentiary hearing. court conducted an did not petition, we hold that state court testimony district court Camp- heard from deny Campbell meaningful impos- access counsel, appellate bell’s state trial and as well five-working-day limit which to file three other witnesses. in support a written of these memorandum claims. Campbell argues evidentiary this hearing inadequate. agree. was We do
VI
Although Campbell’s attorneys
had limited
prepare
amount of
hearing,
time to
for the
Campbell
that the
court
claims
district
de-
they adequately developed the record con
adequate evidentiary hearing
nied him an
on
cerning
whether
received ineffec
petition.
the claims he asserts
his second
tive assistance of counsel. The district court
He also claims that the district court erred
any way
ability
not in
Campbell’s
did
limit
denying
application
stay.
for a
These
present
evidence on
or all of his claims.
lack
claims
merit.
expedited procedures
improper.
Such
are not
corpus proceedings,
In habeas
an ev
Estelle,
880, 895,
Barefoot
identiary
required
peti
hearing is
where the
S.Ct.
the federal district court held a status confer present opportunity an evidence on the whether Campbell ence determine intend respect judicial hang- he issues raises with application to file an stay ed for a of execu ing. Campbell We need not address whether petition tion and a for a of writ habeas opportunity additional was entitled to ah corpus. The for execution scheduled present court evidence the district 30, March of March 1989. It clear from the record Campbell deny Counsel for district did him such advised the district court not they opportunity. pending file an application court would for a an decision this Our stay petition morning grant and a appeal habeas on the of a limited remand to the requested purpose conducting March 27. The district court court of district for the Campbell transported court a hearing provides be such us a fall record with See, Campbell controversy “implies existence of disputed present facts. to all
respect
Cir.1993) (de-
(9th
possible
parties
or
adverse
whose contentions
681
barbaric,
rights);
punishments imposed by
First Amendment
Unit
torturous
defendant’s
Consuelo-Gonzalez,
Stuarts,
Furman,
253-55,
v.
521 F.2d
see
ed States
408
at
U.S.
(9th Cir.1975)
259,
(considering
J.,
(Douglas,
whether
92
at
concurring),
264
S.Ct.
2733-35
(such
illegal
probation
punishments
condition violated
and to
defendant’s
as defrock-
rights).
ing)
by
Bench,
imposed
King’s
Amendment
Fourth
see Antho-
ny
Grannucei,
F.
“Nor Cruel and Unusual
injection,
Campbell is able to choose lethal
Original
Punishments
The
Inflicted:”
not done so. As the State
but he has
con
(1969).
Meaning,
839,
57 Cal.L.Rev.
858-60
argument, Campbell
oral
has
ceded at
consis
way,
Either
“there is no doubt whatever that
tently
he
maintained that
will
exercise
borrowing
language
including
and in
See,
power
e.g.,
to choose.
State v.
Eighth Amendment,
Founding
our
623;
Campbell, 770 P.2d at
for
Petition
Re
Fathers-intended to outlaw torture arid other
hearing at 15. His refusal to exercise the
Furman,
punishments.”
cruel
408
at
U.S.
injection
option
Camp
of lethal
ensures
(Marshall, J.,
B
(Brennan, J.,
concurring) (quoting
Utah,
130, 135,
Wilkerson v.
99 U.S.
25 L.Ed.
Campbell claims
execution
(1878)).
Supreme
345
rarely,
has
Court
by hanging
per
violates
se the
however,
particular
addressed whether
meth
Amendment. We remanded this case to the
ods
employed
country
of execution
in this
are
purpose
district court
the limited
of hold
unconstitutionally cruel.
Judicial
evidentiary hearing
on this claim.
directly
was last
addressed
the Court in
findings
The factual
of the district court will
1878, in
specifi
Wilkerson.
Court there
they
clearly
set aside
errone
cally. distinguished
punish
between various
Bessemer,
City
ous. Anderson v.
470 U.S.
hanging,
of torture and
ments
traditional
564, 573, 105
1504, 1511,
S.Ct.
aof
590, 598,
86, 101,
10.95.180(1);
683 ¶ VI.G.3.a(3)(d). We do not consider to be The rope is boiled and then simply cruel and unusual because it causes elasticity. stretched to eliminate of most its death, pain or because there some rope Id. The is then coated with wax oil or with death. “Punishments are associated easily. so that it will slide Id. The Instruc- they lingering or cruel when death_” involve torture a provides diagram tion knotting rope a Kemmler, (Attachment In re B.) U.S. properly. Id. L.Ed. 10 S.Ct. Washington employs “long-drop” a method Constitution, implies As in the used “cruel” hanging, of in which the condemned is barbarous, “something inhuman and some dropped particular distance based on the thing than extinguishment more the mere of prisoner’s weight. provides The Instruction against cruelty life.” Id. “The which the determining a chart for the distance of the protects Constitution a convicted man is cru ¶ VI.G.3.a(2). drop. Field at Instruction elty punishment, of inherent the method purpose drop, The of the as set out in more necessary suffering in any not the involved below, detail ensure that forces to the extinguish employed method life humane are optimized rapid neck structures to cause Resweber, ly.” at unconsciousnеss and death. Campbell is entitled to an execution unnecessary “the free of and wanton The district court heard live and deposition pain.” Gregg infliction v. Georgia, of 428 testimony pathologists from several oth- and 153, 173, 2925, 49 U.S. 96 S.Ct. L.Ed.2d specific er knowledge hang- witnesses with of (1976) (plurality opinion). judicial ings, testimony and otherwise. The issues, focused on including several does argue punish- not that the causing mechanisms and unconsciousness ment disproportional of death is to the judicial hanging; death the effect of crimes of he which was convicted. Our focus factors, including length various is therefore on whether execu- the method of drop, elasticity of the rope, place- and the unnecessary tion involves the wanton and knot; ment risks death pain. infliction of We hold it does not. asphyxiation decapitation, opposed by injury vascular, spinal, death ner- (2) functions; and Westley vous execution by hanging ligature Death occurs when a Dodd, according Allan conducted encircling tightened by the neck is Washington protocol. weight body. Pathologists distinguish accidental, types hangings: between four testifying pathologists described vari- suicidal, homicidal, judicial. ac- Suicides by judicial ous death mechanisms involved in majority count hangings, for the vast but (1) hanging. These include: occlusion of the they generally employ do not meth- same (2) arteries, carotid occlusion the vertebral judicial ods as hanging. are used (3) arteries, veins, (4) jugular occlusion of the (5) Washington judicial hanging arrest, conducts ac- reflexive cardiac occlusion of the (6) cording transection, airway, tearing, trauma, to Field Instruction 410.500 WSP or (hereafter Instruction”), (7) cord, “Field spinal sepa- a detailed shock to the fracture or (8) methodology Army Regu- column, derived from U.S. spinal ration of the cervical inter- 633-15, (9) Military lation ruption process, No. Procedure for of the odontoid irre- (1959).' Washington Executions Under the damage. versible brainstem These various can, protocol, rope do, probably must be three- between mechanisms occur quarters concert; one-and-one-quarter thus, single “pathway” inches there is by judicial diameter. Field hanging. Instruction And as re- (9th Cir.1982) (holding ap 682 F.2d directly liberate indifference” standard deficiency plicable proportionality medical care in the either to to methodol See, Penitentiary ogy questions. State Chapman, reflected deliberate indiffer- Rhodes 346-47, prisoners, ence to serious medical needs of experts but (noting that standards of care set medical L.Ed.2d 59 conclusion described an ideal level care than a rather deliberate indifference a different rests on factual care). proportionality). constitutional minimum level of "de- determination from that of *21 England per- testifying a two. in pathologists the foot or Executioners of of one search indicates, legendary “hangman’s frac- the in the drop sisted with short nineteenth the long- the common routes to century, developed of less Irish ture” is one while the a and up death.13 drop employing drops unconsciousness of to seven- method Ryk Ra- generally teen feet. See James & that, gener- in The evidence demonstrates Nasmyth-Jones, The chel Cer- Occurrence vascular, of spinal, al, interruption of or nervous Hang- vical Judicial Fractures in Victims above by the mechanisms listed functions ing, Forensic Science Int’l 85-91 unconsciousness and death. rapid results (1992). 1880s, English the the the studied Reay example, Dr. Donald testified For drop, long merits the and relative short causes of the carotid arteries alone occlusion drop long more humane. and concluded a was to ten a within six loss consciousness Appointed to Report of the Committee Similarly, Dr. Ross Zumwalt tes- seconds.14 Inquire Capital into the Execution of Sen- upper the severe trauma to tified a (1886). tences cause an instantaneous loss spinal cord would very rapid and loss of life. of consciousness drop is critical to Appropriate distance hand, pathway sole in- the On the other conducting judicial in the hu- hanging most airway, conscious- is occlusion the volved way possible. drop mane If is too short may a minute. Dr. persist over ness weight the prisoner, relation (“Ryk”) testified that uncon- Deryk James likely result death is from mechanism solely asphyxiation due sciousness occlusion; is, airway condemned a minute and minute-and-a- take between long in asphyxiate. drop will If the is too half, longer than two minutes. but no from weight, death result relation predict Although way with a there extremes, decapitation. Between these two accuracy of the high degree of which various drop lengths highly likely are to cause death contribute unconscious- mechanisms will vascular, spinal, and some combination any given hanging, there ness mechanisms. ensures that the nervous This increasing the likelihood that methods of mat- condemned loses consciousness within a rapid com- will be and death unconsciousness rapidly ter thereaf- of a few seconds diеs among paratively painless. these is Chief pro- Washington ter. The Field Instruction length drop. of the appropriate drop lengths on vides based always involve did not Judicial weight rapid cause unconsciousness testified, Anglo- drop. As Dr. James death. century placed a in the eleventh Normans bringing A important factor second condemned, the neck of noose around painless about a swift and death is the selec- beam, rope over a slung the other end rope. tion and treatment of the Later, person up. execution- and hauled the three-quar- beam, rope uses of a diameter between to reach the and the ers used ladders one-and-one-quarter ters inches. up ladder and condemned would led presented evidence court indi- practice drop- it. district “turned off’ then ligature very cates that a slender is more ping distance did not the condemned some skin, century. eighteenth prone increasing late At to break the develop until the short, first, partial complete drop very decapitation. no more than chances of or Nasmyth-Jones, process, Ryk & The Oc- of the odontoid which is more 13. James Rachel ration Fractures in Victims Judi- likely injury. currence Cervical to cause cord Hanging, 54 Science Int'l cial Forensic generally “Hangman's fracture” refers Reay's findings Dr. are based research dislocation or fracture of the second to a cervical hold,” involving sleeper "carotid vertebra, separation of and third cervical by pressure blocked arteries are process. Id. Drs. James Nas- odontoid person positioned arm and forearm of behind myth-Jones the remains of cervical studied witness, subject. Boyd Another Dr. Ste- spines executed between 1882 of 34 criminals phens, testified that of the carotid ar- occlusion They Great Britain. found fractures and 1945 in probably of con- teries alone would cause loss cases, (19%) six four of which were crack-like sciousness within 15 to seconds. causing displacement perhaps little fractures sepa- injury, no cord and two of which involved *22 likely ligature is less to do so. cause of A thicker the Dodd’s death was massive treating importantly, by rope hemorrhaging occurring the More at the base of the elasticity, Washington protocol the reduce arteries, brain tears in the vertebral energy by guarantees the caused “energy kinetic and the wave was delivered to drop quickly will transferred to cord, namely, the be and spinal spinal the shock.” Dr. structures, neck rather Reay borne the than opinion stated his that Dodd became Finally, simply being rope. absorbed unconscious within a matter of seconds of treating rope dropped. the surface reduce being . easily allows rope
surface friction
to slide
tighten
about the neck. Several witness-
(3)
applying pressure
es testified that
all the
Campbell challenges several of the
way
important
neck
around the
was an
factor
evidentiary
district court’s
rulings. Wé re
causing rapid
unconsciousness.15
view the district
evidentiary rulings
court’s
A
bearing
third factor
on whether uncon-
for abuse of discretion. United States v.
rapid
painless
sciousness and
Catabran,
(9th Cir.1988).
836 F.2d
positioning
Washing-
is the
of the
knot.
protocol specifies positioning
ton
the knot
The district court-excluded several items of
position
ear.
by Campbell
below the left
This subaural
evidence offered
to show that
energy
drop
judicial hangings
ensures that
from the
is trans-
“bungled”
been
spinal
past, resulting
ferred to
structures
decapitation
either
or as-
likely
phyxiation.
carotid and vertebral arteries will
be
by the
Evidence excluded
dis-
(1)
placing
occluded. The evidence showed that
trict court
photos
included
several
of the
(submentally)
the knot below the chin
1901 New Mexico execution of “Black Jack”
energy
Ketchum,
spinal
clearly
also transfer
showing
structures.
that Ketehum was
(2)
decapitated;
newspaper
two
accounts of
Washington
judicial
has conducted one
Quinn
execution Richard
stat-
hanging according to
Field
Instruction.
ing
Quinn
“pleaded
was
asphyxiated
January
Washington
On
executed
pitifully with
up
attendants to take him and
Westley Allan Dodd.
district
court
(3)
spring
drop again”;
the former testi-
testimony
heard extensive
related to the con-
mony
who,
Duffy,
late Clinton
as war-
duct of the
execution and
mechanisms
Quentin
California,
den
prison
of San
wit-
contributing to Dodd’s death. At the State’s
judicial hanging
nessed a
which resulted in
request,
Brady
Dr. William
witnessed Dodd’s
asphyxiation; and
a collection
research
pronounced
execution and
Dodd’s death. Dr.
Jr.,
compiled by
Espy,
materials
Watt
detailr
Brady
testified
dating from
executions
the 1600s.
body dropped through
[w]hen Mr. Dodd’s
trap
there simply
signifi-
door
was no
Federal Rule of'Evidence 401 defines rele-
activity,
twisting,
cant
there
no
turn-
vant
evidence as that‘which tends make
ing,
swinging.
carefully
I
observed his
of consequence
existence
a fact
more
chest and
and I believe that
abdomen
probable
or less
than it would bе without the
there was one minimal
at inspiration,
effort
permits
evidence. Rule 403
the exclusion
in,
that,
breathing
following
within
grounds
preju-
relevant evidence on the
seconds,
several
there
have been
dice,
issues, misleading qualities,
confusion of
small
inspiratory
second
action.
delay. Having
found that
Brady
Dr.
body
specific
judicial
then watched Dodd’s
for
protocol
hang-
relies on
ing,
between 60 and
He
seconds-.
then en-
district court excluded evidence
approach
tered the execution
reliably compared Washing-
chamber
could
body
pronounce
Reay per-
Dr.
death.
ton’s method. The district court excluded
autopsy
formed an
hangings
Dodd. He
concluded evidence
for which there was no
example,
pathologists
Application
15. For
pressure
as several of
sciousness.
sufficient
testified, pressure
applied
single
ato
carotid
two
or more
arteries causes unconscious-
artery,
compensate
the other arteries will
for the
ness.
flow,
person
loss of
and the
will not lose con-
*23
shifting
as basis for
the
the
records cannot serve
weight
prisoner,
of
the
account of
rope.
showing that
the
drop,
proof
the width of the
absent
burden of
length
the
of
potential
party
on notice of the records’
was
that,
argues
for some of
Campbell
—
denied,
litigation),
cert.
relevance
offered,
accounts he
“bungled” execution
the
-,
1567, 118
L.Ed.2d
S.Ct.
could
available or
be
was
information
certain
Campbell
on this basis to shift
is not entitled
instance,
For
the
estimated.
or
deduced
proof
of
to the state officials.
the burden
approxima
permit
rough
photos
Ketehum
Second,
could,
did,
Campbell
present
perhaps
length
drop
the
of
tion of the
tending
offi
to undermine the state
evidence
rope. Such evidence could
the
the width of
by
asphyxi
that
argument
cials’
either
Rule 401.
admitted under
arguably have been
impossible
decapitation
ation or
is all but
not, however, abuse its
court did
The district
Washington protocol. That Wash
under the
excluding the
evidence under
discretion
only one
un
ington
performed
has
execution
court committed no
The district
Rule 403.
protocol
Campbell
the state
der its
left
its
under our
concluding that
role
error in
exactly
footing with
officials on
the same
ju
to determine whether
order was
remand
respect
proof of
effective
the method’s
only
performed
it is
hanging
as
dicial
say
Campbell
was
ness.
cannot
We
punishment.
unusual
Washington is cruel and
unfairly
by the district court’s
prejudiced
required to
court
not
consid
The
was
district
judicial
of other
refusal to admit evidence
marginal
relation
hangings
er evidence
hangings.
Washington pro
according to the
hanging
persuaded that the
were
tocol. Even we
argues
the dis
Campbell also
admitted,
have been
we
should
evidence
admitting
Reay’s
trict
erred
Dr.
court
prejudice
The district
no
here.
would find
sleeper
testimony related to the “carotid
that,
it considered
even had
court concluded
sleeper
involves
hold.” The “carotid
hold”
evidence,
findings
its ultimate
proffered
by
applying pressure
the carotid arteries
changed.
have been
would not
lodging
subject’s
upper
neck between the
argues that he
not be
Campbell
should
person performing
arm and forearm the
proof
so difficult
burden
saddled with
occluded,
airway is not
be
the hold. The
of evi-
paucity
is
extreme
there
because
in the
of the bent arm. The
cause
is
crook
by
meeting
established
the criteria
dence
by oc
sleeper
causes unconsciousness
hold
He asserts that
limita-
district court.
cluding
Campbell ar
the carotid arteries.
by
him
imposed
the district court leave
tions
testimony
gues
irrelevant because
was
one,
execution,
sample of
the Dodd
with a
judicial
the hold bears
resemblance to
prove his ease that
with
which
hanging.
argue,
did
The state officials
not
agree.
unnecessarily painful.
not
We do
however,
sleeper
hold is akin to
First,
argues
that.
to the extent
judicial
testimony
hanging.
demonstrat
The
destroyed
spoliated
or
the State has
long subject
conscious
ed
how
remains
evidence, he misconstrues the
record.
when
carotid
are occluded.
arteries
failure,
recently, to conduct au-
until
State’s
its
district court did not abuse
discretion
prisoners
topsies
judicially hanged
is nei-
admitting
testimony
purpose.
for this
spoliation
nor the
ther the destruction
States,
Campbell argues
v.
the district
See Akiona United
evidence.16
Cir.1991)
(9th
(destruction
excluding any
related
court erred
evidence
F.2d
regard, Campbell’s
Bigelow
Corp.,
on
Motors
451 U.S.
this
reliance
Inc.,
(1981),
Pictures,
accepting impre-
68 L.Ed.2d
v. RKO Radio
(1946),
damages
misplaced.
proof
partly due
cise
to the nature
intended. The we address judicial Campbell’s hang- claim is to whether Campbell claims that his First and Washington to ing according protocol the rights by Amendment are violated unnecessary inflic- involves the and wanton provision statutory that allows him to pain. tion of The relative merits of lethal by injection death lethal by elect rather than injection question. are irrelevant to this reject hanging. claims. We both these Campbell’s challenge First Amendment premised on the Free Exercise He Clause. religious contends his preclude that beliefs ju findings The district entered that participating any him from in his level own according to the dicial conducted execution, that infring- these beliefs are Washington Field Instruction is cruel not upon by 10.95.180, ed Wash.Rev.Code punishment. unusual The found court injection allows him to elect lethal avoid bringing mechanisms involved by judicial hanging. death judicial death in about unconsciousness and extremely rapidly, hanging occur that uncon infringement upon We see no Campbell’s likely sciousness to be or was immediate of religious free exercise beliefs. We seconds, of within a matter and that death agree Campbell providing that a statute rapidly would follow thereafter. The court for choice two execu between methods of by decapitation tion, found that risk of death one uncon constitutional'and other negligible, hanging according and that stitutional, place might impermissible an bur protocol lingering.death, does not involve den on the free of exercise the asserted mutilation, unnecessary or the and wanton Dep’t beliefs. See Frazee v. Illinois Em of no pain. infliction of We find error in these 829, 832, ploy. Security, 489 U.S. fully findings. supports The evidence L.Ed.2d This is findings fact. not, district court’s however, the situation here. charges First,
Campbell judicial hanging po- required Campbell is not to make unacceptable causing an risk participate ses death choice or to the selection of decapitation. asphyxiation employed either or re- be We the method to his execution. refuse, ject argument. Campbell absolutely to es- silent failed He remain participate that the risk of result more tablish either election. The statute slight.17 provides imposition than He has failed to penalty also demon- for presence slight by hanging, require strate that risk of and does not him decapitation asphyxiation Second, judicial or renders choose the method his execution. above, hanging unconstitutionally today cruel. reiter- judi- We as described we hold painless is not hanging, according ate entitled to a cial as conducted execution, purposeful protocol, but one free of is not ah unconstitu- Resweber, cruelty. tional method does of execution. statute compel Campbell compromise at 376. need con- The risk accident cannot and not one process right infringement eliminated the execution stitutional avoid the in order to survive constitutional review. another. testimony yield expert compels did not a reliable evidence that the has conclusion risk decapitation estimate of the risk of either through possible as been minimized much as asphyxiation. accept purposes We of this for adoption of the Field Instruction. However, case that a risk such does exist. reject Camp- therefore argues that statu the execution. We
Campbell also claim as moot. an for death lethal bell’s tory option provision pun cruel and unusual injection constitutes IX not, not, and do address need ishment. We injection is a constitutional lethal whether the clerk of this court shall issue When execution, Campbell has consis method case, stay in this of execution mandate option, and tently exercise refused force pending appeal be of further shall injection is uncon lethal does not claim and effect. heavy Campbell faces a burden stitutional. denial of affirm the district court’s We to show existence attempting of habe- Campbell’s petition second a writ to his execution cruel option related *25 entirety. corpus as in its Gregg, at unusual. See say thе State descends cannot at 2926. We AFFIRMED. allowing depths by the con
to inhuman We such an election. to exercise demned A APPENDIX may prisoners to who believe that benefits (October 21, 1982, AFTERNOON SESSION and option who choose to exercise p.m.) 4:20 injec they elect lethal that can feel relieved costs those outweigh the emotional to tion honor, is an- MR. Your there MESTEL: option of an the mere existence who find you I know if want to do other matter. don’t objectionable. not, but, or in an abun- this on record caution, probably should. dance of I think we VIII My presence client like to waive his would petition in Campbell claims his jury at remain in selection and Snohom- person employed there no Washington in is County. He a lot and ish is under of stress qualified by the who is to or retained State necessary and he not think is tension does it judicial hanging. part He relies in conduct a jury for him to He is attend the selection. in State v. on Dolliver’s statement Justice willing presence open to waive in court. his Frampton, 627 P.2d 95 Wash.2d fears, fears, legitimate as to the He has (1981), is uncontested that there are “[i]t he will receive from the custodial treatment hangers no State trained Spokane he officers and inmates prison Penitentiary, nor are the authorities prefer stay to here concentrate would any in the States.” aware of United trial and future. In- Washington’s adoption of Field preliminary. There COURT: This is THE employment of a struction renders addressing point myself to Mr. unnecessary. hanger” Field “trained Campbell’s obtaining if I won’t such waiver provides that Instruction I as prosecutor it so will from the allow hear appoint pro- Superintendent will [t]he you appro- proper to think it is whether briefing to those individuals as re- vide a priate. your I would hear comments pro- quired implement the Execution observations. required individual will be cess. No proper. know MR. ROCHE: I don’t if it is participate part execution writing, I I it think would have be done procedure. imagine, proper in a would considered ¶ Instruction Field VI.G.2.a. Instruction have penalty ease not to the defendant phases all provides for rehearsals of there. execution, springing of the door. up ... It to me Superintendent It sounds to me like seems Tana Wood testified many expressed interest prison that Mr. had conducted rehearsals officials here, throughout being this no matter officials’reli- trial the Dodd execution. The state just happening. It me perform ance Field what was strikes on the Instruction extremely point judicial very for em- ... odd hanging obviates the need stage of this says, at most critical ploying person perform trained to now he specific EXAMINATION BY THE COURT selection, ease, you jury going where are Q Campbell, your Mr. attorney has said going people to have 12 who are to decide you prefer to remain in Sno- dies, he whether he lives doesn’t want County selecting homish while we are it. input into jury Spokane County. Right Is that [sic]? As we have seen —I am concerned. We Yes, A it is. many games played by have seen so Q you fully you Are aware the fact that defendant, just game. I think another right present do jury to be while a tendency MR. MESTEL: The matter —no is selected? request, just objects. what I the State A I do. Q might I would assume it be a constitu- THE I’m COURT: not all much sur- right, correct, tional my memory and if Mestel, prised as to Ad- Mr. their reaction. rules, granted by unless leave is the court things you’ve mittedly, unique asked present stages the defendant must be at all surprise anyone. Any and come as a time proceedings, voluntarily unless he asking anything we are out of the ordi- *26 generally, absents himself along those nary change ... not do like and automat- We or— lines. ically change. resist right You have a to present do be while why, I see a number of if he reasons jury being a is selected. waiver, intelligent I makes an would not be- A I understand that. subject appellate lieve it be the could Q you stay if jury picked And here and a is regarded review. It shouldn’t be as revers- there, you over present won’t be to hear ible, I think. Expense shouldn’t and man- your questions attorney asks power would be consideration. jurors. may You questions hear those la- grant you I unique. this is It has not you may you ter opinion and be of the my That, happened experience in they before. in wished had questions. asked other itself, and of no present is reason for me to You not supply automati- will be to them cally say Again, questions. no. we’ve had bombshell. with you Do understand that? way. I myself Let’s do it this will address Yes, A do. I myself
to Campbell satisfy Mr. and he Q may jurors say, You look at might doing. you knows what I he want to jurors type aren’t the “Those I would writing, reduce it to fact that I have my lawyers pick have to if I wanted had necessarily done this doesn’t mean I will been there.” it. I allow But least will consider it over evening maybe and reflect on it and any right any You would waive to have give you I sometime tomorrow will ten min- input jury pro- in the whatsoever selection utes, anybody if can with up come consti- cess, you your than other what can tell something tutional prohibition or that would attorneys you ahead of time. Are aware
necessarily subject ap- cause it to be that? pellate review reversal. Yes, A I am. Q you willing to And are submit the issues only thing you I keep would ask in case, may guilt your in this well be many mind is frequently that the State tries your your or innocence and be life or ungovernable, people who are absentia death, you people who have no choice jury
if ungovernable, came and he was selecting part selecting with— that would conduct for be which he would be present they not were even while were proceedings. suppose removed from the I selected? might be considered an invitation to be ungovernable get A sent back. Yes. you. I argue
THE I won’t COURT: you they if wanted understand right willing your to waive Q still You are you selecting jury, will have less con- over during the selection present you your attorneys tact with than jurors? process there in the you were also over A I am. jury selection. Roche, again, I have THE Mr. COURT: I that. MR. CAMPBELL: understand decision, any ques- are there but made a prefer still [sic] THE YOu COURT: put Campbell? Mr. you I feel should tions stay here? think of other I can’t ROCHE: MR. I do. MR. CAMPBELL: setting I think defense questions. still case. trap in this another you prepare THE If will some- COURT: writing, sign might as thing I it. You will I things That is one of THE COURT: that, Mestel, anyhow, I do Mr. and then well evening and I over the to think about want sign will that tomorrow sometime. opportunity to think give you an about will (October also. MORNING SESSION a.m.) 9:30 Honor, I an- Your MR. CAMPBELL: your questions again, and I would like to THE the State of swered COURT: Once why I this. my Campbell. want speak own reasons vs. record ... present of confidence I’ve lot should reflect Mr. court, Mestel, along attorney, with his Mark me. Fine with MR. MESTEL: Roche, Jim on behalf of the State. here I a lot of confi- CAMPBELL: MR. *27 primary hearing this purpose Savage going and Mr. in Mestel dence Mr. morning or Mr. is to determine whether not living. They that for a I am do over there. presence Campbell’s request his to waive my part myself for in the trying prepare to during jury granted. I’ve selection will be my trying get to relax and trial and I am question put I’d to to Mr. one additional like together. head thought had occurred because going I like to doing ... feel I am What evening. me to over real inconvenience. It’s Spokane will be a Campbell, question. other It is Mr. one long I will cut off from going to be a ride. be say your to difficult for me waiver spend day all in things here. I will over right appear during jury to selection is an court, My going through that kind of stuff. it irrevocable waiver. I don’t know whether I will not be to will limited and able time be appellate or not. I don’t know how an working right I now. prepare things am on but, event, that, might treat if court stay my here Snohomish It is decision to Monday get there and we start on we over County accomplish I that. so that can mind, jury you change your and selection something THE You mentioned COURT: matter, purely practical it would be diffi- a they thought of. While are I had not cult, arrange you if to impossible, not to have they selecting jury, you a Spokane are brought through rest over to sit your off from attor- be cut somewhat that, I mat- process. practical think as a So day neys. with them all You be wouldn’t ter, waiver, probably if I it approve this long night. I don’t know how them at see you wouldn’t be irrevocable allowed week, may it jury may It be a selection be. your change mind. may You longer, or it be shorter. be you appreciate Do that? your attor- limited contact with would have Yeah, neys during period of time. MR. CAMPBELL: I do. you willing to I what THE Are still MR. understand COURT: CAMPBELL: about, knowing you talking your right appear, I if you’re saying. What I am waive mind, your nothing change probably I need to want opportunity wouldn’t have it? preparing myself atmosphere. could be done about in a relaxed indicated, things has he he feels are more important do in preparing for trial his I am. MR. CAMPBELL: through jury than selection. He has .sit Honor, practical MR. ROCHE: Your one good justified I cause. believe it is by the things consideration. One of the first expense difficulty security means always in trial is Court does introduce that would to be have taken afford us to parties jury they ask if and counsel and transport security him and during getwe people. know of these How will jury course of a foreign county. selection in by that? I accept will Mr. Campbell’s waiver of his way THE do in COURT: The same we right to appear any jury selection. every introduce, instance: we do so While we MR. you, your CAMPBELL: Thank Hon- they present. are We off because also read or. present, list are of witness names who Honor, MR. Your ROCHE: we don’t think practice I suppose we’d follow the same just the written waiver Mr. Mestel handed I respect with to an absent defendant. have me is sufficient this case. We would ask— personally presided never over a trial where I issue can think of going that’s I defendant was tried in absentia. counsel, be raised is ineffective assistance they heard have occurred in Snohomish although I can see—since Court 3.4 Rule time, County. point inquiry At that clearly present states the defendant shall be jurors: you must be made “Do know times, including at ail impanelling the defendant name and identification?” jury, absolutely which I think is essential suppose procedure. I we follow the same casе, penalty certainly— but will he that, problem MR. ROCHE: Savage after Mr. Mestel Mr. leave the conceivable, although extremely unlikely, case, trial, be at will the end juror potential might there could be a who attorneys scouring will be new the record to face, Campbell by know Mr. but not Savage see Mr. Mestel and Mr. are incom- name. gives petent. This them a classic issue to presume photo- THE I there COURT: bring up appeal for ineffective assistance available, graphs fairly recent. counsel, among things. other *28 Yes, MR. ROCHE: Your Honor. In addi- Campbell personally We’d ask Mr. waive tion, reformatory Mr. inwas writing objections all future to be as raised years for six and since 1976 has been never competency happened of It’s al- counsel. I east of the would think it mountains. ready. things, The for then defense asked highly unlikely people Spokane personally it, assigned going happen error it’s acquainted Certainly, would be with him. again. something knowing. we’d be interested Honor, thought MR. Your I MESTEL: THE might appropriate It be COURT: fairly comprehensive. pre- this He is juror, each individual ask them to observe a challenging anything cluded from about the photograph see. it, jury I selection. will have him write on you want. always I would assume we run that risk respect respect
with to witnesses and with Campbell, you THE COURT: Mr. did person A defendants. be could selected Mr. hear Roche’s remarks? jury say: sit on a “I do not know Mr. Yes, I MR. CAMPBELL: did. trial, Campbell,” someplace during THE you COURT: Do what understand say, suddenly they it occurs did know him saying? ishe years changed ten ago, they but he’s so much forgotten. Yes, I happen have had that with I MR. CAMPBELL: do. witnesses, not defendants. if, THE suggesting He is COURT: time,
I problem, you represented by realize it is a but I think a later other trial, good during think insurmountable and I there counsel —even the course of the or, you Campbell’s request. appeal, might cause to honor Mr. As on have new counsel 692 respect your non-
THE COURT: With jury process. appearance at the selection asserting your behalf that might incompe- Savage were Mr. Mr. Mestel Yeah, I it. will waive MR. CAMPBELL: you to such a waiver. allowing execute tent init ROCHE: I’d still rather see MR. any claim of incom- willing to waive you Are writing. [sic] result counsel petency of waiver? I think that’s neces- THE COURT: don’t sary. Specifically, waiv- for
MR. CAMPBELL: er? REINHARDT, Judge, whom Circuit Yes, specifically for waiver.
THE COURT:
BROWNING, TANG, and
Judges
Circuit
join, concurring Nothing past jury se- D.W. NELSON
MR. CAMPBELL:
that;
dissenting:
right?
anything like
lection
Table of Contents
692
Overview.
695
Decency .
Evolving Standards
I.
695
Legal Standards.
A.
695
Principles.
General
1.
696
Specific Factors.
2.
Society
Rejected
697
Objective
Hanging.
Evidence That
Has
B. The
Dignity.
700
Inconsistency
Hanging with Human
The
C. .
703
Majority’s
Evisceration
Amendment.
D. The
(1)
Any
Majority’s Approach...
703
The
Rational Basis
Absence of
(2)
Disregard
706
Majority’s
Deliberate
Precedent.
Majority’s
708
Consequences
The Pernicious
Rule.
Summary
708
.
E.
Unnecessary
708
and Wanton Pain.
II.
Legal Standards.
A.
Analysis.
B.
Regarding
Compelling
1. The
Evidence
the Existence
Pain.
2.
Lack
Probativeness
Protocol.
Regarding
The District Court’s Perverse
to Consider Evidence
Refusal
Alternative Methods
Execution.
III. Conclusion.
A.
Appendix
Appendix B.
*29
ago,
Overview
century
in
than
ten not
but more
Hill,
They
in
then
1885.
come from David B.
executing
mode
present
“The
of
criminals
Hill
the
of New York.
Governor
Governor
has
to us from the
hanging
come down
capital punishment,
not seek to
did
abolish
questioned
it
ages,
dark
well be
only
employ
have the
a less medieval
present day
the science of the
whether
taking
for the
of human life.1
means
provide
taking
for
the life
cannot
means
of
are condemned to die in a less
such as
century ago, enlightened individu-
Over a
manner.”
barbarous
pun-
supported capital
those
als—even
who
hanging
might expect
words one
from ishment —became concerned that
These are
hanging
longer
practice
was incom-
believes that
was a “barbarous”
someone who
decency
patible
then-contemporary
of
comports
the standards of
of
with
standards
with
time,
of
Century.
they
decency.
our standards
the
20th
Yet
were writ-
Since that
late
York,
Kemmler,
436, 444,
message
governor
dated
of New
1. In re
S.Ct.
U.S.
(1890)
1885).
(quoting
January
695
(1910).
pain,
lingering
had caused severe
793
which
Framers understood that
deaths,
past,
society’s
evolve,
our
and mutilation
and that
mores would
and that
likely
occur
some methods
widely
these results would
continue to
which had once been
employed
unacceptable
would become
in a number
cases under the
to soci-
ety, just
findings
as the torturous
procedures.
pun-
The district court’s
and barbaric
clearly
ishments of the
contrary are
Stuarts had
unaccep-
erroneous.
become
by
table
the Framers’ own time. See id. at
decision,
today’s
a result
the Ninth
As
372,
They
30
S.Ct.
551.
therefore framed
among
Circuit stands alone
the federal courts
prohibition
a
on
punish-
cruel and unusual
a
approving
savage
practice
and barbaric
dynamic
“progressive,
ments which
and
universally rejected in the
of our
rest
nation.
not fastened to
the obsolete but
that,
majority
than
More
does incalcula-
acquire
public
meaning
opinion
as
becomes
damage
Eighth
ble
Amendment.
enlightened
justice.”
a humane
Id. at
Surely, this decision cannot be allowed to
378, 30
S.Ct.
553.
stand.
Second,
expanded
the Court has
coverage beyond
prohibition
amendment’s
its
Decency
Evolving
I.
Standards of
on
punishment,
barbarous methods of
to en
Legal
A.
Standards
compass
protections
guarantee
such
aas
penalties
proportionate
will be
to the offenses
Principles
1. General
see,
they
imposed,
e.g.,
are
Coker v.
punishment
The issue of what methods of
584,
Georgia,
2861,
433 U.S.
97 S.Ct.
53
are unconstitutional
is one that
lies at the
(1977),
safeguard
982
against
L.Ed.2d
and a
Eighth
heart
Amendment. That
confinement,
inhumane
conditions
includ
medical,
specifically designed to pro-
amendment was
See,
ing inadequate
e.g.,
care.
Hell
—
punishment
forms of
hibit
were “cruel
ing McKinney,
-,
v.
113
U.S.
S.Ct.
purpose
and unusual.” Its
was to bar the
2475, 125
(1993);
L.Ed.2d 22
v.
Estelle Gam
imposition
savage
punish-
and barbaric
ble,
97,
285,
429 U.S.
97 S.Ct.
696
(1976)).
recognized
derly to
more fundamental
start with the
290,
251
We
L.Ed.2d
50
I,
Accordingly,
part
I
question.
in
discuss
Eighth
aspects to the
Amend
of these
both
incompatibility
hanging’s
general
more
with
Haygood
Younger, 769
inquiry in
v.
ment
II,
evolving
decency,
part
in
Cir.1985).
standards
(9th
1350,
analysis
1354
F.2d
(while
unnecessary
point) I
to reach the
is
applied,
cases has been
in these
set forth
hanging involves the un-
consider whether
every Eighth
in
implicitly,
expressly
pain.
necessary and
infliction of
wanton
years.
case in recent
Amendment
juris-
contemporary
in
As is often
case
Specific Factors
2.
analysis
two-part
prudence, the
Su-
punishment
determining whether a
is
In
Hudson,
and that
preme Court reiterated
evolving
incompatible with our
standards of
Haygood,
is somewhat artifi-
followed
we
decency,
a court
look
a number
case,
any Eighth Amendment
our
cial.
however,
primarily,
“we
factors. First and
always
pun-
inquiry
whether
ultimate
objective
pub
indicia that reflect the
look to
evolving
standards
ishment is consistent
given
Gregg,
a
sanction.”
lic attitude toward
173,
See,
Gregg, 428
at
decency.
e.g.,
U.S.
173,
(opinion
U.S. at
697
society’s
say
philosophy, religion, logic,
that it is
with our
history,
er
consistent
and
in an
decency, regardless of
our
effort to obtain a full understanding
what
standards
n
nature
society.
of such clear
judges
view would be
the absence
civilized
While
may
See, e.g.,
Georgia,
v.
not substitute their
legislative
judgment
action.
Coker
own
for
584, 593-96,
2861, 2866-68,
legislature,
that of the
they are particularly
433 U.S.
97 S.Ct.
well-equipped, by
training,
(plurality opinion)
982
virtue of
53 L.Ed.2d
edu-
cation, experience, and the
(striking
Georgia’s
penalty
characteristics
down
death
for
brought
bench,
which
woman,
apply
them the
largely
rape of an adult
because
techniques
these
the type
of issue
Georgia
only
imposed
before
was the
state that
Moreover, by
tenure,
us.
virtue of life
adult,
feder-
rape
for
penalty
death
an
and one of
judges
al
so
political pres-
do
free of
only
imposed
three states that
the death
sures or other extraneous considerations.
penalty
rape);
Ford Wain
cf.
399, 408-10, 416-18,
wright, 477 U.S.
106
Objective
B. The
Society
Evidence That
2595, 2601-02, 2605-06,
335
91 L.Ed.2d
Rejected Hanging
Has
(1986) (relying on
fact
that “no State
By
objective measure,
hanging
in
has
permits
the Union
the execution of the
rejected by present-day
been
society.
holding
Eighth
This
sane”
that the
Amendment
country
experienced
has
far more than a
prohibits
executing
a state from
an insane
“trend” toward abolition. Abolition is almost
prisoner
provide
the state must
an
fact,
complete.
everywhere
In
complete,
it is
hearing
sanity).
adequate
on the issue of
but in the northwestern corridor of the Ninth
legislatures
Where the
have failed to reach Circuit. Before the turn of
century,
general agreement
punish
kind of
that a
hanging
“nearly
was the
universal form of
however,
repudiated,
be
ment should
we
v. Frampton,
execution.” State
95 Wash.2d
circumstances,
inquire
In
must
further.
such
469,
922,
Indeed,
627 P.2d
934
48
Supreme
clear, “legis
as the
Court has made
hang persons
states
used
convicted of
judgments
lative
cannot
determina
alone
capital
century, however,
offenses.6 In this
tive
Amendment standards since hanging
virtually every-
has been abandoned
safeguard
that Amendment was
intended
where,
sought
gruesome
as states have
less
legislative
individuals
pow
from
abuse of
and torturous methods of execution. See
19,
Gregg,
er.”
at
U.S. at
n.
96 S.Ct.
Georgia,
Furman v.
296-97 &
Stewart, Powell,.Ste
(opinion
2925 n. 19
n.
2755-56 & n.
JJ.).
vens,
In the
absence of
clear
(1972) (Brennan, J., concurring)
L.Ed.2d 346
legislative
unequivocal
repudiation
pun
of a
that,
(stating
eight
as of
states still
ishment,
objective
must
we
look
other
employed hanging,
remaining
while the
objec
public
indicia of
attitudes and to other
penalty
suppos-
states had
switched
“the
Among
tive factors.
latter
whether
edly more humane
methods”
electrocution
punishment
involves mutilation or dis
gas); Frampton,
and lethal
at 934
P.2d
memberment,
historically
it
whether
asso
that,
1981, only
(stating
jurisdic-
as of
four
repression
tyranny,
ciated with
or
English-speaking
tions in the
world em-
may fairly
whether
be characterized as
Montana,
ployed hanging: Washington,
Dela-
short,
dehumanizing
degrading.
Africa).
ware,
we
South
Since
punishment
ask
“comports
must
whether the
away
hanging.
states have turned
Ful-
concept
dignity
with the basic
of human
at
ly
hanging
39 states abandoned
in favor of
another,
the core of the
Amendment.” Id.
assertedly more humane
method
question
execution,
S.Ct. at 2929. We answer this
additional seven abolished
by reviewing
pertinent judicial
penalty
all of the
the death
a time when
by employing
they
decisions but also
employed.7
the tools of was the method
Even the
they
Appendix
6. Two states—Alaska and Hawaii—have not em-
tion
which
did
B also
so.
ployed any
capital punishment
form of
since
legislative
judicial
includes
statements as
their admission to the Union.
well
as other material which makes clear
hanging precisely
they
states abandoned
because
Appendix
year
B sets
forth
each
legisla-
it to
considered
be inhumane.
hanging,
states abandoned
and the
*34
(1988),
protocol
Supreme
held that
the
Army
the
the
Court
whose
United States
—on
Eighth
prohibited
form
executions for
that
Amendment
heavily relies —abandoned
so
1986,
years
the
mili-
crimes committed
children under 16
as did
other
punishment in
of
services;
year
age.
though 15-year-olds
eli
the last
of
Even
were
tary
that same
and
penalty in the
gible
Circuit eliminat-
for the death
19 death
the Ninth
two states outside
injec-
age,
had
penalty
lethal
states which
no minimum
practice and substituted
ed the
states,
therefore, only
plurality
society
rejected
had
the
found that
present,
two
tion. At
Montana,
penalty
young
for such
children.
the Ninth
the death
Washington and
both
plurality
Circuit,
hanging
a form execu- The
looked
the 18 states which
as
of
retain
decision,
age
today’s
adopted
requirements
the
had
minimum
for
of
tion. As a result
prac-
penalty,
the
that
finds
the death
and relied on
fact
this abominable
Ninth Circuit still
required
have
at
all 18
the defendant to
been
tice constitutional.8
years
the
the
least 16
old at
time of
offense.
upheld
has ever
a mode of
federal case
No
826-29,
(plu
See id. at
Even in the books, has all us.12 on the it been hanging remains years. practice recent abolished but us, necessary it not In the case before single person asserted who Since objec- go primary further than our test —the rights law has been Eighth Amendment objec- public tive This evidence attitudes. country. only per fully hanged in this overwhelming tive so evidence is con- judicially hanged during has who been son simply not free to trols our decision. We Dodd, Westley Allan whom period disregard nearly universal determination year he re last after Washington executed legislatures hanging is no of our state fact, rights. This those fused to assert longer compatible with our standards de- well, strong provides evidence legisla- cency. people and Because the society’s with our longer compatible judg- have made tures of this nation their *36 See, decency. e.g., Thompson, of standards ment, consistently clearly and re- have and 2696-98; 831-33, at id at 487 U.S. jected hanging the of a form of execu- use as (O’Connor, J., 852-63, 108 at 2708-09 at S.Ct. tion, our is an No further task end. (both rarity with concurring) noting that the However, judicial inquiry required. is the imposed is indicates that punishment
which a
that,
factor,
here,
plain
every
singly
fact is
unusual).
Indeed,
the
with
it is cruel and
collectively,
and
necessitates a determination
Africa11
a
exception of South
few small
hanging
that
cruel and unusual
constitutes
states, there has not been another
Caribbean
punishment.
helpful
It is therefore
to exam-
English-speak
judicial hanging
the entire
ine
of
some
the other relevant factors.
facts,
light
In
of these
ing world since 1966.
willingness to
so sav
majority’s
endorse
Inconsistency Hanging
C. The
Hu-
with
of
practice
age
a
as constitutional
and barbaric
Dignity
man
incomprehensible.
simply
is
It
every
is not
fact that almost
rejected hanging
pun-
of the
has
as a form of
legislatures
46 states
state
(and
hanging
possibly
compels
of the
ishment
that
the conclusion that
have abandoned
it)
adopted
hanging
comport
evolving
have considered
fails
with our
two which never
judicial hang-
decency.
that
standards of
It is also the fact that
the facts and determined
taking
judicial
practice
hanging
is
ing is
inhumane manner of
life.
of
demonstra-
so,
bly incompatible
doing
they responded
respect
core concern
with the
for human
dignity that
of
Amendment —that
the state
is
mark
a civilized nation.
of
capital punish-
savage and
meth-
some of us
that
employ
barbaric
While
doubt
majority
of this en ment of
kind is consistent with
punishment.
ods of
contem-
values,
substituting
porary
religious
its
social and
even
court has
business
those
banc
clearly-expressed
persuaded
stаte-sponsored
of of
judgment for the
view
us who are
that
nearly every
legislature in the nation.
executions are constitutional must conclude
state
newer,
enlightened government,
process challenged
a
more
as unconstitutional is
11.
aWith
judicial hanging may
in fact
even this bastion
fall.
constitutional. Such
determination
Keller,
duty
Parties Endorse
South
Bill
would not relieve us of our
to examine the
African
Cf.
Constitution
Times,
All,
Granting Rights to
New York
question
with utmost care and ensure that the
p. Al.
Nov.
rights
persons
fully protected.
involved are
However,
legislatures
where
here the
Thus,
wrong
simply
majority
when it
is
particular
their view that a
demonstrated
form
judicial
conclude that
"[w]e
states that
cannot
punishment
society,
unacceptable
is
our role is
evolving
hanging
incompatible with
standards
circumstance,
one.
In such a
far different
decency simply
few states continue
because
appropriate
question
not be
for us to
would
every
nearly
practice.”
Ante
682. Where
judgment,
legislative
and we should not seek
punishment,
abandoned a method of
has
696-97;
ways
undoing
supra pages
it. See
cf.
they
they
precisely
have done so
because
Morgan,
n.
Katzenbach
inhumane, we cannot but
found it abhorrent and
had not justice, ugly, nasty, frontier and with our human bringing methods of life an end. best-forgotten history swinging of bodies crude, rough, Hanging pro- is a and wanton from the public trees or places. exhibited cedure, purpose apart of which is tear many Americans, judicial To hangings call needlessly spine. It is violent intru- forth the images brutal justice of Southern sive, deliberately degrading and dehumaniz- song immortalized in a hauntingly sung by ing. beyond grievous It causes fear others, Holiday.14 many Billie To they are a consequences death itself and the attendant symbol rough jus- instant Western humiliating disgusting. often tice —of asking questions first and us, later.15 all hangings Yet to are a cases, In a number of one of these conse- earlier, time, remnant of an harder a time quences decapitation. Every single expert in meting punishment when out we were far evidentiary hearing witness at —both less dignity concerned with human and de- by Campbell those and those called called cency. In the two states of the Ninth Circuit point state —admitted at one another *37 exists, hanging where still it out stands decapitations that some will occur under the starkly as a barbaric anachronism. Indeed, protocol.13 Camp- presented testimony reject bell unrefuted that punishment the We barbaric forms of as Washington protocol actually merely will increase and cruel unusual not of because the they the it decapitation, requires pain risk of because but pride inflict also because we rope that being the be treated to eliminate all on a society. ourselves civilized We elasticity, thereby assuring greatest the capital punishment necessary that look on as a possible any longer amount of force will be Few transferred evil. view it as cause for prisoner’s the neck. The risk that the celebration or an occasion for civic festivities drop great rip public gatherings.16 force of the will so as to or impose capital the We A, Appendix pp. strange 13. See at 717-22. Be- Here is a infra dissent, length the cause of I crop. of have set And bitter Fruit, Strange forth detailed the discussion of the evidence ad- by Lewis Allan. evidentiary hearing appendix duced at the in an style justice 15. This Western of is in the reflected A). (Appendix I refer to that evidence in the Hang Airport, title of the book Davis, the 'Em at Ed body necessary, main of this dissent when how- City the former Chief of Police of of the ever. Angeles. Los 14. Southern trees Hanging historically has been associated with strange Bear a fruit spectacle public of executions. Charles Dick- Blood on the leaves ens, Times, ain letter to the London described at And blood the root mayhem hanging at a he attended in 1849: swingin' Black bodies In upon midnight, the Southern breeze When I scene at came Strange fruit the shrillness of the cries and howls ... made poplar on, my night From the trees. blood run cold. As the went screeching laughing Pastoral scene yelling strong and and gallant melodies, Of parodies negro South chorus of of awith bulging eyes Manning' [one substitution of ‘Mrs. of the con- 'Susanna'; And prisoners] the twisted mouth demned ruffians and magnolia vagabonds every Scent ground kind flocked to the every variety Sweet and fresh with of offensive and foul lan- guage. Fightings, faintings, whistling, Then the sudden smell imita- burning Punch, jokes, Of flesh. brutal tions tumultuous dem- Here a fruit delight swooning onstrations of indecent when pluck dragged For the crows to women were out of the with crowd disordered, gather gave For the rain to their a dresses new zest wind For the to suck entertainment. For the sun to rot Letter December in Letters Charles (1903), Teeters, drop quoted Negley For the tree to Dickens K. short, that only ma- In the Constitution commands a we do because when punishment impose penalty the death as civilized we legislators have conclud- jority of citizens possible. a I rec- and non-brutal manner as combatting necessary means of ed that it is di- ognize “oxymoronie” quality of this this is crime. While punishing violent or of rective; nevertheless, I do not believe that place nor to debate time neither the open to It individu- debate. all theory, we be able should dubious stake, is at it is nation’s dignity al’s minimum, unite, proposition society’s as well. To the that we and extent carried state-sponsored executions must be brutal, degrading, vio- eliminate the can painful, the least least cruel out execution, aspects of an and substitute lent uncivilized, possible. It manner is difficult developed approved method scientifically anyone advocating imagine fact to —or terminating through appropriate life medi- course. permitting any other Constitution — neutral, procedures in a medical environ- cal ment, obligated by we are the Constitution fact, requires the Constitution developed has do so. If medical science person it executes to die state allow the relatively painless- terminating method of life possible. Gregg, as dignity much as comparative dig- ly peacefully, and with (opinion 96 S.Ct. at nity, requires that we em- Constitution JJ.). Powell, Stevens, Stewart, Although in- savage, than ploy procedure rather from the infliction dignity stem needless antiquated ugly, methods of earlier relatively pain, also arise from the it can days times. The old and West- Southern savagery, degradation, painless infliction end, justice finally ern must come necessarily Cruelty brutality. does not Washington and the states of Montana Indignities can pain. involve be inflicted And elsewhere.17 even this court will some- example, person has died. For even after a recognize day have that barbaric and sav- *38 Eighth little the there be doubt can our age practices permitted are not under public exhibiting of prohibits the Amendment system of law. stringing up the yardarms, and on carcasses medically I will the of a discuss issue more Likewise, it public squares. in of bodies appropriate in- method of execution—lethal by corpses dragging caissons of prohibits the jection part connection with II of —in state-spon- after a through public streets the prop- opinion, fully which sets forth more the execution, displaying of the bodies sored may not more osition that the states use a occupants homes of their former outside the if a ;painful ‘painful method of execution less lived, they in neighborhoods which or in the Here, only I em- method is available. need warning co-conspirators. as a allies that, phasize notwithstanding the district prohibits draw- finally, the Constitution And improper permit court’s the intro- refusal ing only before quartering not but after injection, regarding duction of evidence lethal fully out. the has been carried death sentence injection person of the administration an to a Utah, 136-36, See Wilkerson v. by placed has been sedated and on a bed who (1879). post-mortem these All L.Ed. 345 person medically trained in a envi- a medical person’s body are forms of treatment of a obviously ronment far less barbaric necessarily violate the abhorrent and would uncivilized, degrading, far less inhumane and Clause, al- Punishments Cruel and Unusual prisoner up a than forced march of obviously, them cause though, hangman none of could gallows steps where the untrained spoiled in person. hope drop will any pain the executed waits be sight-seers, peddlers Hang were and medicine men would scenes the Neck Such day. this side of the Atlantic as well: common on on the town before the descend fatal single brought spec- Perhaps event more Teeters, supra, at 39. years, public hanging. than tators in those present; People camped for to be some drove miles only than 17. While Montana state other vicinity days. The in for several permit hanging, at least Montana large camp people brought fol- concourse of actually say that it has can in its defense Entertainers, every large gathering. lowers to hanged anyone years. for 50 vendors, evangelists, pick-pockets, promoters, voiding support only by astonishing wholly the defecation and that result of its unprec- and violent from the state’s crude effort edented decision to of bar use traditional forcefully Eighth life terminate human at the end Amendment concepts in cases involv- rope. punishment,18 of a of legal forms nor even a
argument remotely based on a analogоus justifica- ease.19 There is simply no rational Majority’s D. The Evisceration of majority opinion tion or elsewhere for Eighth Amendment abandoning the traditional standards favor majority deliberately disregards all pain an exclusively. examination of Nor barbarism, questions of savagely, and cruel- majority purport does the any to offer rea- ty, apply and refuses to the traditional fac- explanation why exception soned to the tors which courts our determine whether governing rules Eighth Amendment cases contemporary decency standards of should carved involving be out for cases does been violated. It so on the basis its punishment exception methods of —an unexplained unreasoned and conclusion that drastically power would curtail the addressing challenge constitution- respect federal courts to the most fun- ality punishment,” “method we must Eighth damental of Amendment concerns consider whether that method unneces- preclude considering would us from sarily pain. inflicts Without even a colorable punishment whether modes of administered analysis, majori- attempt at constitutional by the states meet the minimum standards ty rejects employed every the standard society. fact, a civilized were we to limit Eighth years. By Amendment ease recent our review such solely pain cases pronouncement, majority its ex cathedra question, powerless federal courts only longstanding Eighth eviscerates not stop implementation number but Amendment doctrine Amend- punishments, long uncivilized barbaric so ment itself. they pain did not inflict more than necessary penological to meet some asserted interest. Any The Absence Rational Basis Approach Majority’s majority’s entire discussion the con- Contrary stitutionality precedent, majority to all per- rests *39 law, legislatures premise, ungrounded deems it irrelevant that the state verse prior that uniformly hang- Eighth have almost concluded that the imposes only Amendment one ing longer pun- requirement appropriate respect is form of with to a method of disregards ishment. It all of the punishment factors execution or other form of —that (other unnecessary pain) pain than unnecessarily. Despite that courts it not inflict two traditionally years legal history considered when determin- hundred of unbroken particular punishment contrary, majority simply whether is con- the the refuses evolving any sistent with our standards of decen- consider of other the relevant factors. cy. The majority single supra distinguishes cannot cite a case in See note 4. It Coker and pages punishment. 18. As I demonstrate 705-06 n. the & "excessiveness” of a form of infra Yet, majority’s very page passage the reliance on dis Justice Brennan's on the same as the the cites, sent from ana, denial of certiorari Glass v. Louisi majority Greggplurality the made clear that 2159, 2162, only part any Eighth one of “excessiveness” is (1985) (Brennan, J., dissenting Thus, L.Ed.2d 514 analysis. pain Amendment excessive certiorari), wholly from denial of is erroneous as disproportion are the exclusive consider- disingenuous. well as Eighth analysis. plu- ations in Amendment The rality required notes both that courts are to "look objective public indicia that reflect the attitude majority attempt support 19. The does limi- its sanction,” given Gregg, toward a U.S. at Eighth tation on the of use the traditional Stewart, Powell, (opinion containing S.Ct. at 2925 of Amendment standard with a footnote Stevens, JJ.), penalty Gregg Georgia, pas- "[a] that must also citation to but the “cf." man,’ dignity sage quoted tion, Gregg, quota- accord 'the of the with which is like the Brennan entirely Eighth Gregg concept underlying is taken out ‘basic the of context. The Amend- ” (citation omitted). passage determining sets forth considerations for ment.' Id. punishment very the core tra- methods of lies at applied eases which the Enmund —two Cruel and Unusual Punishments the punishments and struck down ditional test any part Eighth If Clause. Amendment widely rejected by the they had been because subject Supreme Court’s central law is “[tjhose legislatures cases —because “evolving decency” test and en- standards pen- proportionality of the concern the affords, it protections it titled to essential conviction, opposed to alty to the crimes of clearly challenges part governs that which (foot- at 682 Ante the method execution.” majority’s The punishment.” “methods omitted). majority only offers two note The its point on tells us much about silence purported of its distinc- support sentences it opinion and the method arrived appear in does not distinction which tion —a wholly at fallacious ultimate conclusion. its Enmund, Coker, other case—notwith- consequences simply anywhere no rational basis revolutionary There standing the sentences, opinion paradoxical exception in the for the In those two which would follow. majority apparent from creates. This is pronounces, without majority simply majority’s on distortion of the authorities whatsoever, “proportionality that explanation rely purports which it and the inсonsisten- actions entails examination review cy appropriate between its discussion sentencing legislatures and of both of state legal ultimately it em- standard and test juries contemporary to determine standards apparent ploys. equally It is from the fact decency,” “methodology fo- while review majority barely mentions the stan- objective heavily on evidence of more cuses on, finally adopting it in the dard settles challenged in the method.” pain involved Moreover, indirect of manners. before most Ante unnecessary applying pain rule distinction created considered, The factitious factor that must be directly original majority contradictory conflicts with majority two sets forth other of the Cruel and Unusual Punishments It intent rules and disavows either of them. never rules, Anthony simply explains ignores As Granucci demonstrated two then Clause. groundbreaking study, that clause them. government fear arose out analysis majority The introduces its impose and other barbarous tortures de “[t]o the non-controversial statement persons punishment convicted forms termine whether is unconstitutional Congress acts.20 and the states criminal unusual, ly objective cruel and we look to adopted with the Amendment possible.” factors to the maximum extent understanding pro it “was directed at 682. It then cites the established Ante hibiting punishment.” methods of certain Stanford, sug recently rule set forth most Granucci, “Nor Anthony F. Cruel and Un gesting that rule. apply it intends to “ Original usual Punishments rule that: ‘[F]irst’ Inflicted:” states Stanford *40 (1969); 889, Meaning, 57 841-42 Cal.L.Rev. among ‘objective that the the indicia reflect Dutton, F.Supp. v. 609 see Groseclose also public a given attitude toward sanction’ are (M.D.Tenn.1985) (“It 1432, 1440 evident society’s passed by represen elected statutes Eighth in prohibitions 370, 109 that the Amend the Stanford, tatives.” 492 U.S. at S.Ct. primarily from the concern for ment evolved (quoting McCleskey Kemp, at v. 481 2975 the individuals would be manner which U.S. S.Ct. death.”) added). (1987)) added).21 short, (emphasis Ap In
put
(emphasis
L.Ed.2d 262
earlier,
parently understanding
prohibition of inhumane
that
the
as
the
noted
Stanford
(2d
expressed
Adoption
Among
that
at
the Federal Constitution 111
those who
concern
the
of
1881).
meeting
Virginia delegates
ed.
the
of
at which
the
of
Constitution was considered
ratification
the
Henry
George
Mason. See
previous page,
were Patrick
court
21. On the
the Stanford
Granucci, infra,
were
"conceptions
decency”
at 841. Similar concerns
of
of
made clear that the
expressed
society
as
at the Massachusetts Convention
a whole” are deter-
"modern American
as
Elliot,
delegations.
inquiry.
by
Eighth
See
other
See J.
of the
Amendment
well as
minative
id.,
U.S.
arrive at
JJ.).
rights.25
way
punishment can
tal constitutional
in which a
One
by inflicting
is
contravene these standards
analysis
for
majority’s
is remarkable
certainly not
only
single,
pain unnecessarily.
nar-
Yet that is
If
as well.
other reasons
pain”
ap-
“unnecessary
of
test
way.
completely painless
infliction
row
the
Even a
challenges
Eighth Amendment
to
plies to
disre-
punishment
still evidence
utter
“
majority must
the
be
punishment,
of
methods
man,’
dignity
‘the
of
which is the
gard for
rule,
truly
discovering this
for it
sagacious in
concept underlying
Eighth Amend-
‘basic
the
”
than
centu-
court in the more
two
is the first
(quoting Trop, 356
at
ment.’
Id
U.S.
sug-
Rights
Bill
to have
the
of
ever
ries of
597).
example,
guillotine
the
78 S.Ct. at
For
fact,
upon which
premise
gested it.
painless
execu-
comparatively
is a
method of
holding is
is so novel
majority’s
founded
painless
if it
the most
tion. Yet even
were
suggested
extraordinary it was not even
method,
today
faced
the issue
court
with
Rather,
simply
created
the state.
that,
certainly
the state
hold
whatever
hope
I
this
purposes
of this case —and
1789, beheading
is inconsistent
law
majority.
It has no
only26 by the
case
—
decency,
both
with our current standards
Eighth
jurispru-
place in our
Amendment
every
rejected
has
that form
because
state
dence.
savagery
is a
execution and because there
bodily
and the out-
the extreme
mutilation
Majority’s
Deliberate
simply
Disregard
pouring
Precedent
of blood that
inconsistent
Similarly,
dignity.27
with human
all of
majority’s representations,
Contrary to the
postmortem
punishments
involving
mutila-
analy-
Eighth Amendment
the touchstone of
part
tion
would be held
discussed
I-C
is,
doubt,
beyond any
types
cases
sis
all
Amendment,
violation of the
punishment conforms to our soci-
whether a
though they
cause
inflic-
decency.
even
would not
contemporary
ety’s
standards
See,
pain.
Gregg,
at
tion of
e.g.,
428 U.S. at
suggests.
any part
majority
majority to
far
context than the
consider
different
25.Were
essentially
than
Brennan’s Glass dissent other
followed the method
Justice
Justice Brennan
context,
out of
it would be
analysis
part
it takes
sentence
I
set forth in
I-A of this
that,
supporting
compelled to admit
rather than
He first looked to the actions of
dissent.
approach,
unprecedented
Justice
its
Brennan's
legislatures
re
and noted that their decisions
requires
judicial hanging be
analysis
that
held
garding
challenged
are entitled
method
is,
analysis
Justice Brennan's
unconstitutional.
great
states had not
deference. Because the
question, totally inconsistent with the
without
electrocution,
reject
how
reached consensus
ignore
majority's attempt
all of
factors that
ever,
legislative
concluded that
decisions
he
these
hanging is
demonstrate that
inconsistent
determinative,
that
courts
could not be
dignity.
As Jus
civilized standards
human
assessing
must
factors in
the consti
look
other
understood, and stated in the
tice Brennan well
tutionality
unnec
of the method. He considered
majority selectively quotes,
very
dissent
among
pain
indignity
essary
to be foremost
governs Eighth
overriding principle that
Amend
id.,
1083-85,
471
at
105
those factors. See
U.S.
analysis
the Cruel and Unusual
ment
S.Ct. at 2161-63.
'expansive
"has an
and vital
Punishments Clause
character,’
meaning
'draw[s]
its
example
penalty opinion
of a
26. For an
prog
evolving
decency that mark the
standards of
good
only,
v. United
for one case
see Gomez
Id.,
maturing society.'"
ress
471 U.S. at
Court,
155238, No. 92-
District
1992 WL
States
Weems,
(quoting
217
2161
105 S.Ct. at
(9th
Apr.
U.S.App.Lexis
Cir.
551; Trop,
U.S. at
withdrawn,
19, 1992),
vacated as moot and
(plurality opinion)) (empha
707 earlier, explained except majori injeetion for As the Eighth violates the Amendment be- “[tjhere general ty, uniformly required agreement courts have that a that le- cause injection present thal is at punishment the most unnecessary pain neither inflict humane type of execution prefera- available and is far “evolving nor otherwise violate of standards ble to the sometimes barbaric means em- decency” and not sought to limit the ployed in past” “[mjany states have Eighth by seeking force of the Amendment now abandoned other of forms in execution off category to seal of from full cases its injection”). favor of lethal protections.28 Specifically, every contempo rary give federal case to extended discussion courts have ways looked all of constitutionality of a method execu of punishment in which a can violate our stan- engaged evolving tion has in the entire stan decency dards of in involving non-capi- cases decency inquiry. said, dards of None has as tal well as’capital punishment. methods of majority, does the that “is defendant A example Eighth classic is the Circuit’s only entitled an execution free of ‘the strap decision that the use of the to discipline ” unnecessary pain.’ and wanton infliction prison inmates is unconstitutional. Jackson (citation omitted). 683 Gray (8th Ante at In v. Bishop, 571, Cir.1968). v. 404 F.2d 580 (5th Lucas, Cir.1983) Jackson, 710 F.2d 1068 In beyond the court looked curiam), (per unnecessary pain the Fifth narrow issue of Circuit relied on the and con- that strap cluded the use of “principles ... is inconsis- by Supreme articulated tent contemporary with Gamble, standards of decen- Court in Estelle v. U.S. [429 cy, both because degrading “[i]t is to the (1976)],” 102-0397 50 L.Ed.2d 251 punisher punished and to the alike” and be- deciding challenge gas in chamber. “[pjublic opinion cause obviously adverse.” were, course, principles Those the “con reaching conclusion, In the latter the court temporary decency standards as manifest on the only relied fact that two states still Gamble, legislation.” ined modem See permitted use the strap. The Jackson U.S. at 103-04 & n. n. S.Ct. at 290-91 & engaged proper court in the constitutional (holding denial of medical care to analysis, for strap whatever the value of the prisoners pun constitutes cruel and unusual (and prison discipline-might I am cer- states). listing ishment and statutes from insignificant), tain that it would not be Gray quoted extensively court from punishment place method out in late Eighth Gamble’s formulation of the Amend Century society, society 20th American test, applied ment “evolving standards of respect that demands dignity. human decency” in determining that execution gas lethal was constitutional.29 See Hill also By failing analysis to apply employed Lockhart, v. F.Supp. 1394 in punish- Jackson and all other method (E.D.Ark.1992) (rejecting cases, claim that lethal concluding ment instead that the Eighth 28. places holding Even outside the core of exposure Amend- lie to environ protections, evolving we ment’s have found the prison mental tobacco smoke in can violate the decency standards of challenge issue A determinative. Amendment), Eighth Helling nom. v. sub aff'd impose to the decision to the death - -, McKinney, usually penalty raises issues we consider (1993); Hoptowit, L.Ed.2d 22 F.2d reliability proportionali- under the rubrics of (concluding prison's medical care See, Enmund, ty. e.g., Stringer, supra; supra. system violated the Amendment if it Similarly, involving challenges in cases to ac- created conditions which exceeded "what prison gener- tions undertaken we authorities decent"); general public supra would consider ally focus on "deliberate indifference” or unnec- note 5. See, Hudson, essary pain. supra. e.g., all contexts, however, these the courts have under- express I no view on the results the Fifth inquiry always stood the ultimate was Gray, inquiry especially light Circuit's government comported whether action significant among abandoning trend states evolving decency. McKinney standards of Anderson, gas injection. (9th Cir.1991) chamber favor of lethal I 924 F.2d 1508-09 decided, states, (relying Gray on the note that since the number of fact that 45 the federal government, mandating by gas and numerous states execution has cities counties dwindled smoking restricting pub- had enacted statutes ten to three. *43 particular Summary meth- E. rejecting a of states number consequence of little is punishment od of sum, justification for simply is no there pain light on actual majority’s inquiry “sheds no the it the failure to conduct because society’s “evolving into standards whether may practice,” attend not the may that or prohibition decency” hanging. The prohibit 682, majority flouts fundamental the ante at and against barbaric uncivilized methods principles. In method- Eighth Amendment Eighth punishment heart of the lies the other, may cases, all we of-punishment above require us Amendment. The to deter- cases analysis “unnec- to the narrow not limit our particular punishment com- mine whether a majority’s hold- essary question. The pain” standards, they re- ports with societal Pun- the Cruel Unusual ing eviscerates legislative to to quire us to look actions precisely the and does so Clause ishments majority cannot question. answer this designed its it to have area in which was sug- point single holding case even —or greatest force. Finally, were ma- gesting the —otherwise. jority precedent and consider follow evolving hanging violates our stan- whether Consequences The Pernicious decency, con- dards of it would be bound to Majority’s Rule the it a form of execution that has clude that is rejected contrary as unequivocally been damage done to the Constitution standards, that contemporary the reason opinion Until majority’s the is incalculable. rejection practice for its is that this atavistic decision, universally it understood simply provide respect human fails to the for punishment his- central methods —the society dignity that civilized demands. Eighth Amendment— toric concern Wholly apart question from the unneces- absolute, against unwav- the were measured sary pain, Eighth well-established Amend- Now, society. ering of civilized values by ju- principles ment dictate that execution in the Circuit. longer is no case Ninth held dicial be to constitute cruel today, say with assurance that Until we could Notwithstanding punishment. unusual would we counte- actions, will, under no circumstances majority’s fortunately, re- nation, nance, great everywhere anywhere- in our use main the in this land but in law the Ninth Circuit. punishments flogging, such as barbaric de- whipping, application electrical Unnecessary and II. Wanton Pain parts. ma- private Under the vices to one’s majority Even if the were correct longer jority’s such opinion, we analysis is Amendment limited to states, in the nine Western where assurance question unnecessary pain, its conclusion presumably judicial concern the sole judicial hanging is constitutional would pain the amount of pragmatic one—whether wrong. Hanging totally still be involves a necessary greater than to accom- inflicted necessary high pain, risk far than is more purpose. plish penological drop kill a inmate. If condemned short, death, may strangle prisoner too standard, majority’s any meth- Under However, process. painful a slow and long one which has punishment od of —even hangman also concerned that must be constitutional, be so put been to rest —would is, drop long, prisoner if it too be long pain inflicts is deemed reason- decapitated. As one scholar has ably necessary. we af- Given the deference explained risks involved: legislatures prison ford adminis- to state “long in the drop” advent of the Before the respect questions to such trators —and by hanging century, death late nineteenth given majority’s recognize refusal process painful a slow and was often pain under the most obvi- existence of even strangulation. dropped When the victim is clearly today’s ous decision height from a his vertebrae sufficient circumstances — crushed; uncivilized spinal invites a return the brutal and un- cord dislocated and fol- ways is immediate past. consciousness of our
7Q9 If drop a short time later. the is too lows examine alternative methods execution however, long, decapitation Al- they occurs. and consider might whether avoid the though hanging something pain has become risks of that in hanging. inhere is This times, in may especially an art modern and well be true light fact the that 89 painless properly performed, legislatures evidence have determined that alter- hangings bungled painful abounds: inadvertent native methods are less and more decapitation dropped hanging, when victims are too humane than and that one strangulation they dropped long; Washington when than state other still has a stat- Strangula- permits too short to break their necks. ute on its books that a such form of excep- punishment. tion be the rule rather than Yet the the district court refused supposedly any tion. Unconsciousness is .in- to consider evidence which demonstrated injection is stantaneous even when the neck not that lethal pain avoids risk of the broken, entirely but it is not that hanging. certain associated with Had the district conscious, If job is true. the properly this victim is court done its compared by strangulation extremely hanging death must be with other methods of available exe- cution, painful. it would have been bound to conclude hangings unnecessary some involve Gardner, Indigni- R. Martin Executions and pain, hangings significant and all a involve Eighth ties —An Amendment Assessment of Then, unnecessary pain. risk of assuming Punishment, Inflicting Capital Methods of majority would have still been will- (1978) (emphasis 89 Ohio St.LJ. ing to advance its novel Eighth view of the added). Amendment, it would nevertheless have been slow, painful risk of a The stran- compelled, view, even under that to hold that gulation asphyxiation has existed all hanging is unconstitutional. hanging throughout history. Although cases “long drop” frequency
the
reduces the
Legal
A.
Standards
deaths,
painful
such
a
every
risk remains in
prisoner
hanging
through
Supreme
the
will die
The
Court has
clear
made
that—
slow,
process.
regardless
torturous
The
any
evidence devel-
bearing
other'
factors
oped
that,
hearing
consistency
at
made clear
even punishment’s
with our standards
though
majority
hangings
will result in
decency
punishment
will violate the
—a
“
death,
rapid, relatively painless
Eighth
is a
there
Amendment if
‘involv[es] the un
significant
risk
given hanging
necessary
will
pain,’”
wanton infliction of
—
Hudson,
pain.30
at -,
result
severe and excessive
at 1001
omitted).
(citation
also
Washing-
evidence
made clear that the
Several cases
clari
hanging protocol
ton state
virtually
meaning
identi-
fied
Amendment’s
respects
“unnecessary
cal in all relevant
hanging
pain”
wanton infliction of
procedures
slow, painful
demonstrate,
which have caused
standard. As these decisions
asphyxiations
past.31
in the
key
Faced
inquiry
the.type
with this
us
cases
before
evidence, the
necessary.32
duty
pain
district court was under a
is whether
If a
chart,
erroneously
procedures
drop
While
district court
excluded
two
occurs in the
but
important
probative
drop
Washington
evidence
even
roughly
offered
chart in
was
regarding
practical
hang-
drop
lengths
effects of
the same as the British chart—the
ing,
enough
Washington
there was more than
evidence before
shorter
were
than the British
lengths
weights,
longer
court to eliminate
doubt that
lower
at the
the.
painful
higher weights. Transcript
involves
risk of
death.
torturous
at 143.
Appendix
See
A.
prisoner challenges
32. Where
individual con
example,
Royal
31. For
purport
penalty
British
Committee in
duct
does
to be the
strong
crime,
imposed
asphyxiation,
formally
1886 found
evidence
for the
an additional
deaths,
painful
inquiry
and thus slow and
had occurred
into the officials’ state of mind is neces
hangings
sary
pain
in seven out of the 27
it studied. Tran-
to determine
whether
wanton.
Seiter,
294, -,
script
hanging procedure
102-03.
v.
Wilson
501 U.S.
(1991);
comparable
procedure
L.Ed.2d
Jordan
Gardner,
employed
period.
(9th Cir.1993) (en
during
in Great Britain
986 F.2d
banc). Where, however,
Transcript
major
prisoner
at 106. The
difference between
can show
pain
Supreme
in Louisiana ex
more
than an avail-
Court stated
inflicts
punishment
Resweber,
459, 67
alternative,
rel. Francis v.
punishment will violate
able
*45
(1947)
374,
(plurality opin-
91 L.Ed.
S.Ct.
Punishments Clause.
Unusual
the Cruel and
ion),
cruelty against which
“The
the Constitu-
McCleskey,
in
Court stated
Supreme
As the
cruelty
protects
is
in-
tion
a convicted man
unconstitutionally
might be
“any punishment
punishment,
not the
herent in
method of
justifi-
penological
without
if inflicted
severe
suffering
necessary
any
involved in
method
301,
at
at
107 S.Ct.
1772.
cation.”
U.S.
extinguish
humanely.”
life
employed to
Id.
punish-
methods of
two alternative
Where
added).33
464,
(emphasis
at
at
67 S.Ct.
penological goals,
same
but
ment serve the
considering
a method of execu-
In
whether
greater
pain,
markedly
risk of
a
one involves
Amendment,
Eighth
then, a
tion violates the
justification
using
penological
for
there is
may
only
pain
look
court
not
at
Indeed, the
of
painful method.
use
the more
method,
challenged
suffering
caused
nothing
painful
“is
more
the more
method
impossible
it
for
is
to determine whether
imposition
purposeless and needless
than the
pain
by one method is
amount of
caused
Coker,
suffering.”
at
pain and
of
necessary
looking
other
without
at whether
592,
(plurality opinion).
at 2866
pain.
methods cause less
A court must con-
among
sider whether the method is
the least
penalty,
In
of the death
these
the ease
light
presently
cruel in
alterna-
of
available
a mode of execution
principles require that
in
tives. As Justice Powell stated
his dis-
practical
In
carry
pain.
risk of
the minimal
senting opinion
opinion
in Furman —an
addition,
unnecessarily
it must not
“involve
adopted by the
in
which was later
Court
Kemmler,
lingering
a
death.”
torture or
any
Gregg
approve
court would
meth-
“[N]o—
Supreme
at
10 S.Ct.
933. The
U.S. at
implementation
of
of
death sentence
od
upheld
penalty
has
the death
because
Court
in
unnecessary cruelty
light
found to involve
goals
has
that death serves the
it
concluded
presently
alternatives.”
available
Furman
retribution, and
incapacitation,
deterrence.
Georgia,
408 U.S.
92 S.Ct.
183-86,
Gregg,
7H Washington judicial There are pain hanging one out of 25 cases. First, protocol for this conclusion. when and the reasons State Peni- two tentiary pain protocol involves a risk of that is staffs execution of that punishment virtually possibility has eliminated all greater than the risk involved in alternative unnecessary and wanton pain. infliction of punishments, there will be a number of cases punishment actually pain inflicts have been When we that could avoided. Judicial does not involve 23.. punishment whether a form of examine torture, death, mutilation, lingering *46 unusual, limited to cruel we are not unnecessary and wanton pain. infliction of probable punish- looking at the effect of the Findings of Fact and Conclusions of at us; Law particular on the ment case before fre- findings clearly contrary 6. These were look, well, quently we as effect on hearing both to the evidence at adduced Second, general. punishment cases (cid:127) hearing and to the law. The evidence at the higher causing phys- involves a which risk of that hanging left no doubt of entails a risk higher pain necessarily will de- ical cause a slow, painful strangulation. has This risk gree psychological pain actual in all cases. of hanging protocols existed under all used always A condemned inmate will feel some fanciful, throughout history, simply and it is fear, anxiety degree anticipation, of as he worse, or to conclude that Washington execution, but, awaits he knows he protocol, substantially as which the same lingér dying, may pain intense he is before procedures, these will eliminate this risk. ever-increasing subject “to a fate of fear and Indeed, the evidence made clear that Trop, 356 distress.” U.S. at S.Ct. at Washington hanging protocol state will Thus, (plurality opinion). if a 598-99 state slow, little if on the risk of painful effect defendants, adopt to execute it must chooses Thus, death. an examination of the record a method of execution that minimizes permits before the court district no alterna- any person put risk that who is to death will tive to a reversal district court’s con- unnecessary Otherwise, pain.35 suffer trary ground on findings of clear error. Eighth have violated will Amend- Moreover, indisputable faced with the fact ment.36 hanging Washington —even —involves death, painful some risk of the district Analysis B. required court was determine whether court, necessary. risk was Yet the district Following hearing evidentiary we or- erroneously excluding portion addition of remand, in our dered limited the District testimony by Campbell offered regarding issued findings Court written fact and hanging, the actual effects also refused criti- conclusions law. The district court’s consider which would evidence have shown findings cal were as follows: injection substantially that lethal entails few- Washington judicial hanging The 8. er risks does that form of than execution. protocol Washington and the information, Peni- State Without this the district court tentiary protocol staff’s execution of that absolutely had no basis for concluding that virtually has eliminated possibility all of a hanging in creates no unneces- lingering Thus, or sary tortured death. pain. risk of the district court’s proposi- say 35. there were If doubt about this This is not one method tion, is resolved Justice Brennan’s dissent satisfy Eighth execution will Amendment Glass, denial from of certiorаri in which the any given point in time. There well majority purports. setting rely as forth the roughly several methods execution which are “methodology standards for sent In his review”. dis- Eighth equivalent perspec- Amendment (which I assume is now the law of the however, Where, tive. a method of execution circuit), Justice that "[Tlhe Brennan stated presents substantially greater risks than alterna- that, requires Amendment much as methods, tive it is unconstitutional. humanly possible, a chosen method execution violence, unnecessary pain, the risk of minimize Glass, and mutilation.” 471 U.S. at at 2163. variety had See ante at 683-84. no basis fact mechanisms. findings and conclusions any given hanging, one or more —but not or law.37 necessarily pathways all —of these will lead clearly nature of the district erroneous biological to death. Because individual exemplified factual determinations court’s differences, however, impossible it is to de- finding: present- following “Petitioner by the pathway before an execution which termine judicial hanging that a carried ed no evidence prisoner. will be the one that kills the Tran- Army's States execu- under the United out 105-06; Indeed, it script at 351-53. is often decapita- in a regulation resulted tion ever impossible an execution to determine death, torture, tion, the unneces- lingering after pathway actually prisoner. killed Findings pain.” sary infliction and wanton Transcript at 102-03. ludi- finding 2. This and Conclusions presented no evi- crous. course Of difficulty determining pathway hanging carried out under the dence that actually complicates that will lead decapita- regulations resulted in a Army’s the issue whether leads to torture *47 Army never the has carried tion —because death, lingering or a because some the regulations. hanging a under these See out judicial hangings in pathways death cause quote portion I Espy Deposition 29. this quick- unconsciousness and death much more simply decision to illus- the district court’s may ly than others. While the issue be way judge the the district went about trate that complicated, there can be no doubt the obligations performing his constitutional in clearly determining district court erred critically proceeding. important this always hanging virtually that result in would opin- that the district court’s end result was “immediate or near immediate” unconscious- legal series of factual and ion contains a Findings of ness or death. Fact and Conclu- clearly contrary that are both to conclusions particular, In sions of Law at 4. the district particularly the law. It is the record and to appears hanging court concluded that in- in a ease regrettable that this occurred ordinarily would result occlusion the the volving imposition death sentence. arteries, leading carotid to unconsciousness Findings within 6 12 seconds. See of Fact Compelling Regarding 1. The Evidence just and Conclusions of Law at 6. This is Pain Existence of wrong. Although plain occlusion arterial every absolutely question that There is pathway likely to lead which most hanging prisoner a risk that the will involves hang- in a near-immediate unconsciousness strangle immediately, but will not die instead ing, presented the evidence at the evidentia- asphyxiate process, death. This which ry hearing made clear that it is also the minutes, extremely may pain- take several single unlikely pathway most to occur under only prisoner experience ful. Not does the Washington protocol.38 victim, strangulation pain by any felt but dangling he does so while at the end of a developed The medical evidence at the evi- rope, after a trauma has been inflicted severe dentiary hearing is too detailed to discuss in spine. Although a on his neck and such slow However, body this opinion. full only painful will occur in a com- death the record shows that is a fair there chance cases, every percentage of paratively small through death not occur will rela- significant single hanging involves a risk that tively quick painless pathway of arterial it occur. will occlusion, slow, through but instead a tortu- involving presented hearing pathway asphyxiation. rous In- The evidence deed, majority rightly pathway inheres made this clear. As risk of such notes, A, through every Appendix hanging hanging. p. can cause death infra A, fully why dangling rope, experiences Appendix end of a 37. In I more demonstrate as he contrary findings clearly the district were court's effects of severe trauma. The district court to the record. should have considered whether means of unnecessary render even execution could event, twelve must six to seconds seem pain. amount of prisoner exceedingly long to a time conscious Moreover, minutes). knowledge lasting 722-24. the mere deal thirteen Although this painful is sufficient in death itself evidence direct evidence relat- psycho- inmate hanging cause the condemned severe to the risk that will cause a reasons, also, death, logical pain. lingering For these the court excluded it because practice judicial hanging every violates the did not know detail of the procedures Amеndment. used in hangings. Camp- these least, very however, bell did know at the surprising, This conclusion is not because bungléd hangings these occurred after the every jurisdiction that has ever used long drop (designed to minimize the risk of as a method of has execution understood strangulation) slow universally had become painful the risk of and torturous death exists. employed. The district unquestionably court pris- Even states other which have executed refusing abused its discretion in to admit this by hanging century oners in this have em- highly probative evidence.' ployed procedures contemplate did, however, The district court as does the might actually quite take some time. majority, rely heavily on its conclusions re- Duffy, As Clinton the former warden at San garding what happened during hang- the one Quentin, procedures: once described these ing that has occurred in this nation prisoner dangling remains from the past three decades. Aside from the fact that rope end of the for from 8 to 14 (if minutes painless hanging one pain- fact was doctor, up
before the
who
less)
has climbed
prove absolutely
nothing about
small ladder and
listens
his heart beat
hanging produces
whether
significant
num-
*48
stethoscope, pronounces
with a
him
painful
ber of
example,
pain-
deaths —for
one
dead....
ful death out
four
or five—reliance on the
Westley
hanging’
Alan Dodd
constitutes sim-
legal
witnesses are dismissed after
ply
Campbell’s rights
one further violation of
having signed the usual witness forms.
to a fair proceeding. The state controlled all
However,
body
of the condemned is
relating
the information
to Dodd’s execu-
hanging
gallows
left
below the
for an addi-
by limiting
tion
access to the execution to
tional 15 to 20 minutes. This is to assure
people
choosing
allowing only
of its
its
in charge
ample
those
time has
expert
own
to
autopsy
conduct an
on him.
elapsed
cutting
rope
before
in order to
upon
remedy
manipu-
Called
the state’s
make certain of death.
information,
lation of
the district court re-
Gardner, supra,
(quoting
at 121
Duf-
Campbell’s
Clinton
fused
motion to have Dodd’s
-
fy). Despite
evidentiary
hanging
the fact that
videotaped. Although the district
hearing
jury,
was not conducted before a
taping
court concluded that
such
—which
district court excluded under Federal Rule of
develop
would have enabled
any
providing
Evidence 403
right
evidence
exam-
far fairer record —would violate Dodd’s
slow,
ples
painful strangulations
privacy,
objec-
which had
any
Dodd had never raised
past
in
hangings (including
occurred
only
one or-
tion to it.
It was
the state that did.39
aware,
judge permitted
39. At the same time the district
which I am
the courts have held that
right
privacy,
the state to raise
persons
right
Dodd's
he
to be executed in the future have a
refused to allow
next friend to raise
videotape
another’s execution in order to de-
rights, including
important
Dodd’s
the most
con-
velop evidence of the effects of that method. See
right
right
stitutional
Gomez,
of all—the
not to be execut-
MHP,
Fierro v.
No. C-92-1482
1992 WL
unlawfully.
judge's
ed
The district
(N.D.Cal.
conduct in
1992)
April
(granting
mo-
refusing
anyone
to allow
but Dodd himself to
videotape
tion to
tion);
Harris's execu-
Robert Alton
rights
doing
assert his
when
so would hinder his
Judge
Videotaping
see also U.S.
OKs
execution,
allowing
while
the state to assert those
Execution,
Times,
Angeles
Los
December
rights
impediments Camp-
in order to remove
1993, p.
(reporting
A21
that a federal District
execution,
exceedingly
bell’s
difficult to har-
Judge Maryland
videotaping
ordered the
of the
monize.
Thanos,
gas
execution
lethal
of John Frederick
waves,
monitoring
judges
as well as the
Other district
of his brain
who have been faced with
nearly
constitutionality
gas
entirely
identical
because "the
chamber
situations
taken an
approach
judge
question'
different
from that of the district
is a ‘serious
that should be decided on
evidence'.”).
possible
this case.
In the
other similar cases of
'the best
completely
circumstances,
ipse
These
dixit statements
simply no
there is
Under the
before the
will all of the evidence
inconsistent
concluding that the state-
for
rational basis
court,
The official-sound-
district
however.
pro-
of the Dodd
evidence
generated
(which
majority in-
Field Instruction
hanging will not
any indication
vides
methodology derived
us is a “detailed
forms
pp.
unnecessary pain.
723-
cause
infra
633-15,”
Army Regulation No.
from U.S.
683)
hardly some set of scientific
ante at
suggest
hanging will
I
not mean
do
pos-
magically eliminates all
equations which
death, or
painful
always
a slow and
cause
strangulation.
It is
sibility
decapitation or
most of the
results will occur
that these
even
operating
12-page typed set of
simply a
Campbell’s expert witnesses
Even
time.
during
prison officials to follow
guidelines for
rapid uncon-
hanging will lead to
agreed that
It contains no scientific refer-
an execution.
majority
of cases.
and death
sciousness
fact,
ences, and,
very
it
forth
little of
sets
See,
(testimony of
Transcript at 154-55
e.g.,
taking
for
human life.
procedures
actual
James). However,
before
the evidence
Dr.
Instead,
as the
with such issues
dеals
supported
overwhelmingly
court
the district
housing an inmate sentenced to
location
the risk of
conclusion that
the common sense
death,
present at an
that can be
the staff
every
slow,
asphyxiation exists
painful
execution,
privileges,
telephone
visitation and
testimony at
Only by ignoring the
hanging.
relations,
moving
procedures for
media
hearing
district
evidentiary
could the
cell,
holding
execution
the inmate to the
contrary
conclusion.
court have reached
control,
final meal.
and the
crowd
hearing
presented at
The evidence
the Wash-
2. The Lack
Probativeness of
protocol
parts of the
that the crucial
showed
ington Protocol
military
uncritically copied from a 1959
were
which had never been used
manual
execution
also
the district court
The evidence before
abandoned.
state
and has since been
judicial
made clear
expert
single
medical
did not consult
(otherwise
as the
hanging protocol
known
protocol, and it did not even
developing the
*49
Instruction)
virtually no effect
Field
will have
methodology the
attempt
what
to discover
risk,
indistinguishable in
it is
on this
because
creating
military
employed
its
had
proce-
hanging
respects from the
all relevant
addition, the state did not
procedures.
strangulation
painful
to
dures which have led
developments in foren-
account of recent
take
majority
past. Reading the
deaths in the
com-
show that the more
pathology
sic
that
opinion,
might get
the idea
one
judicial hanging
pathways
death
mon
Washington protocol consists of
detailed
experts had
what medical
are different from
varying
rope
series of instructions for
A, infra, pp.
thought
Appendix
in 1959. See
a vari-
drop
depending on
width and
distance
724-25.
might
decapitation
ety of factors which
make
hearing
at the
also showed
The evidence
likely
particular prisoner
in a
more or less
spe-
could not detect
prison
that
authorities
according
medical and scientific
to the latest
posed by
physical
strangulation risks
majority
the dis-
cial
knowledge. Both the
and
prisoners, nor
characteristics of individual
argue
protocol has elimi-
trict court
protocol to
they effectively alter the
virtually
decapitation.
all
See
could
nated
risk of
(“[T]he
is be-
differences. This
compels
account for these
at
n.
evidence
ante
only relatively un-
employs
prison
decapitation
cause
[of
the conclusion that the risk
task of
physician’s assistants
much
trained
asphyxiation] has been minimized as
or
pris-
inspection conducting a medical
through
adoption of the Field
possible
physical charac-
the crucial
Instruction.”);
oner and because
Findings of Fact and Conclu-
(“The
strangulation risks of-
judi-
which affect
Washington
teristics
sions of Law at 2-3
by highly
even
cannot be detected
ten
hanging protocol
cial
and the
The evidence
personnel.
medical
of that
trained
Penitentiary staffs execution
State
clearly
protocol
would
showed that
virtually
possibili-
all
protocol has eliminated
risk of slow stran-
virtually no
on the
ty
decapitation.”).
effect
majority’s
Campbell
great
on this
gulation.
deposition
reliance
offered a
deal of
testimony relating
injection.
constituted clear error.
to lethal
document
This
testimony
was
unrefuted —made
—which
injection poses substantially
clear that lethal
District Court’s
3. The
Perverse Refusal
painful
lingering
less risk of a
and
death than
Regarding
Evidence
Alterna-
Consider
hanging.41
does
Both
Longstreth
Dr.
Methods
tive
Execution
Graney
injection
Dr.
signifi-
noted
lethal
hang-
Faced with the undeniable fact
cantly
prisoner
decreases the risk that
in-
ing involves a risk that the condemned
pain,
drug sequence
will feel
because the
death,
painful
mate will die a slow and
injection begins
lethal
with a sedative which
required
court
district
to consider
always guarantees
almost
immediate loss
necessary.
whether this risk was
Because
Graney
62-63;
Deposition
consciousness.
at
impossible
a determination
such
without
Longstreth Deposition at 63-65. As noted
considering whether
of execu-
other m'ethods
above,
many
hang-
there are
cases which
risk,
significantly
tion avoid
lessen this
ing
cause
does not
immediate
loss
con-
required
court was
district
to consider
sciousness, although it does cause immediate
merits of
of exe-
relative
alternative methods
spinal
damage
paralysis.
cord
In these
Yet it refused to
cution.
consider
evi-
cases, hanging
injection
is like a lethal
with-
relating
dence
method of execution
sedative,
out the
and it
lingering
causes “a
hanging.
Transcript
than
other
See
290-
Kemmler,
death.”
particular,
91. In
the court refused
allow
prolonged
at 933. Because the risk of
suffer-
present any
testimony
Campbell
live
by employing
can be eliminated
the lethal
showing
injection
present
that lethal
does not
injection technique,
unnecessary
it is
to sub-
decapitation
risks of
painful
ject prisoners to that risk. For that reason
does,
hanging
it refused
сonsider
alone, hanging is unconstitutional.
deposition testimony
on this issue which
Campbell
hanging
unnecessary
submitted. Because the district
The fact that
causes
showing
prevented
pain
court
graphically
a number
occasions is
injection
lethal
execution
involves less
current
illustrated
standards of medical
pain
by hanging,
precluded
execution
Longstreth
than
research. As both Dr.
and Dr.
testified,
showing
pain'
Graney
him from
university
associated
or scientific
hanging
unnecessary
journal
the termi-
allow experiment
in which
of human
by hanging.
nation
life. Justice Powell would animals
euthanized
were
Be-
surely
surprised
have been
district
pain
at the
cause
creates a risk of
Furman,
rulings.
paralysis,
reliably
court’s
408 U.S. at
does not
lead to imme-
*50
430,
(Powell, J.,
unconsciousness,
dissenting)
satisfy
These portable. “objective exactly kind of evidence of the majority
pain on which the states involved” III. Conclusion rely. They Ante at 682. show we should clearly hanging greater involves a quite mutilative, violent, Hanging is barbaric death, necessary pain than to cause risk of is procedure resoundingly reject- that has been injection such as lethal because alternatives society. Indeed, American our ed modern causing that result without these can achieve society began rejecting it over a hundred However, court years the district refused ago. risks. Even from the risks of aside death, decapitation lingering, painful of this information. See Tran- consider “ hanging simply court inconsistent ‘the script 290-91. The thus had no at ’man, dignity concept which is the ‘basic finding hang- or for its in fact law basis underlying Amendment.’” unnecessary pain. no risk of ing presents Gregg, at at 96 S.Ct. majority concludes that district JJ.) Stewart, Powell, Stevens, (opinion of refusing to did not err in consider court (quoting Trop, 356 at at U.S. injection. relating to lethal evidence 597). shows abso- The state states, majority correctly, hearing lutely respect dignity no human when question involved of wheth- this case stretching person by seeks kill a his neck hanging rope er was unconstitutional. But there spine of a that his will be the end so expla- yet exactly goal torn simply plausible apart; can be rational judicial assertion, hanging. participant majority’s One veteran for the next nation typical way: hanging described a injection relative merits of lethal are “[t]he Ante question.” to this at 687.43 trap dangles irrelevant springs When the he at the pain rope. involved times The risk alternative end of the There are when has not obviously extremely neck been broken and the of execution is means prisoner strangles eyes pop to death. His the question essential —to relevant —indeed head, tongue of his almost out swells unnecessary hanging creates an whether mouth, protrudes from his his neck impossible pain. simply It is con- risk of broken, rope many and the times hanging sider whether risks involved in large portions and flesh takes of skin necessary considering without whether the side of the face that the noose on. inflicting other methods death avoid these urinates, defecates, He he droppings showing injection By pres- that lethal risks. on, floor fall to the while witnesses look substantially pain hang- ents risk of than less almost all one or and at executions more ing, Campbell in- has shown helped faint or have to be out of the wit- necessary suffering than volves more “the room. ness employed involved in method to extin- Gardner, supra, (quoting at 121 Warden Resweber, guish humanely.” life Duffy). Clinton at 376. The district court un- questionably is, as a matter of doubt, errеd law Hanging slightest without the *51 evidence, refusing layman’s to consider this and the “cruel and unusual” —in terms and pain, guillotine. pain they minimizes such as the See Gra- native methods of and the execution ney Deposition at 65. cause. event, any any dispute In about the intended majority opinion nothing 43. The does more than scope Camp- of the remand is irrelevant. order confuse the issue when it claims dis- "[t]he bell under a is entitled the Amendment to interpreted precise- court remand trict our order light hanging, determination whether ly at 687. as it was intended.” Ante For one alternatives, unnecessarily pain. inflicts Wheth- thing, interpret the district court did not our misreading er court the district erred in our remand order as least some of us it. intended preventing or we Certainly, remand order erred in there been no would have reason for engaging any district court from in the constitutional- of us to assume that determination of ly inquiry, hanging unnecessary pain Campbell not had whether could mandated has a fair inflicts adjudication be conducted without consideration of alter- or full his constitutional claim. compelled answer have no will sense. No other doubt we be the constitutional —if enlight- today day perform claim to be an then some is consistent with our our —to duty In and civilized nation. Anno Domini under the Constitution: will ened We be required every Washington state and most oth- to inform and when almost Montana rejected savage the state not take the of a nations have such a and life er citizens, by citizen so cruel and unusual a killing its means. barbaric method of question, despite Without and good say hang- decision of court could conscience my colleagues, hanging violates the “evolving Constitu- ing comports our standards of I tion. dissent. decency.” that in It is inconceivable to me proud country,
one corner of our vast and a Appendix Developed A—The Facts at the single judicial willing circuit is to violate its Evidentiary Hearing permit un- obligations constitutional presented clearly The evidence on remand long practice outmoded conscionable and hanging significant showed that creates a exist. decapitation risk both of asphyxi- and of slow ation. The evidence also showed that public a time when fear of crime hanging protocol is essen- high, may violence is it be understandable tially reducing useless in these risks. The judges that some will on occasion close their findings protocol district court’s has Constitution, eyes to the dictates of the virtually eliminated all decapitation risk of employ whatever form of rationalization or lingering completely contrary death are self-deception will lead them the result presented hearing to the evidence at the Here, however, they expedient. there deem clearly thus erroneous. majority’s for the is not even such excuse n actions. The issue before us is not whether Decapitation A. The Risk of executed, only but will notes, majority theAs the earliest methods by put will be to death. method which he drop. involved little or no Thus, majority’s disregard all decision to English drop used this so-called short meth- precedent simply Supreme relevant Court exclusively Century, until od the mid-19th Still, inexplicable. democracy proved has re- developed involving when the Irish a method grown has silient and our Constitution By longer drop. a much the end of 19th stronger passed, notwithstanding as time has Century, the British had abandoned the temporary setbacks at the hands of courts entirely. drop They short instead method objectives. by political motivated on occasion employed procedure involving drop , grown stronger part It has because the according weight length which varied judiciary proved on whole has to be prisoner. The executioner would de- courageous, independent, fair minded. length drop by looking up termine usually The courts have corrected their own prisoner’s weight setting on table and they long sins and errors before became drop length weight. indicated for that ease, others, In this as in irremediable. very Washington employs a similar method ultimately emerge un- Constitution will hanging, drop length/weight and its table scathed. It is this court that will be quite by British similar to the one used majority today. what the does diminished Century, although the late 19th there after Transcript at are some differences. See decision, today’s Until we reverse our cir- drop reputation cuit The British abandoned the short be- will have blotch its painful I slow be a constant embarrassment to us all. cause often led will long long drop prob- had some hope that before we will be able to suffocation. The own, energy comprehend lems of its however. While the what has for some time been *52 by apparent dropping prisoner of the civilized created several feet to most of rest not, causing quick in Supreme world. If will un- was much more effective a Court death, in doubtedly required explain meaning it was also much more effective be us, Despite decapitating prisoner. the de- of the Amendment either risks, event, that capitation I the British concluded this case or some other. negligi- long drop was a more humane form evidence that there was more than a by decapitation Washington’s ble risk of drop. the short As stated under hanging than judicial hanging protocol.” Findings of Fact Royal Committee: However, of Law at Conclusions 6-7. desirous, however, recording areWe solid, presented highly in fact cred- respect “decapitations,” opinion our significant decapi- ible evidence a risk of culprit if the condition of the is such Washington’s protocol. tation under exists suggest as to the risk on the one hand of Campbell’s expert witnesses had studied the or, other, decapitation, on the of death judicial hanging, past mechanics of as well as i.e., pain needlessly pro- strangulation, hangings decapitation, they which led to longed, saying we' have no hesitation fully persuasively explained why hang- decapitation the risk of should be Washington protocol— under the —even pain, incurred. It involves no for the cul- prisoners’ created risk heads would be unconscious; prit already whereas the simply cut off. The state’s witnesses testi- has, public fear of we have censure conclusory fied terms that . stated, already on several led to occasions present would not such a risk. unnecessary prolongation of his suffer- they absolutely Yet had for basis these ings. they were not familiar with the conclusions— protocol, literature, the medical or historical Report Appointed of the to In- Committee examples hangings decapita- which caused quire Capital into the Execution Sentences brought tion. Once this information was (1886). Although Royal xiii Committee experts, they the attention of the state’s uni- long drop understood that a created a risk of formly decapitation admitted that the risk of decapitation, it decided that this risk was greater they thought. than had earlier taking worth where the alternative —a It present was the state which failed to credi- drop short an increased risk of —created evidence, Campbell. ble The district slow, painful strangulation.44 findings contrary clearly court’s were Washington employs long drop, Because erroneous. surprise decapi it comes as no that a risk of James, Deryk registrar Dr. senior in fo- Washington hanging tation exists under the pathology rensic at the Wales Institute of Indeed, procedure. every single expert who Medicine, “very Forensic testified that it is evidentiary hearing testified at the acknowl likely” Washington hanging protocol that the edged point at one or another that some produce decapi- will one or more instances of prisoners hanged Washington who are implemented regularly tation if it is over the See, decapitated. e.g., Transcript at twenty years. next ten or Transcript at 120. 43, 101-02, (testimony Campbell’s 120-21 James, groundbreaking Dr. who conducted (testi James); Deryk witness Dr. id. at 273 study judicial of the mechanisms of death mony Zumwalt); of State’s Dr. witness Ross hanging,45 reached this conclusion com- (testimony id. at 332 of State’s witness Dr. paring Washington protocol with those Reay); (testimony Donald id. at hanging protocols decapita- which have led to Boyd Stephens); State’s witness Dr. id. at past: tion in the 477-78, 480, 490-91, (testimony Camp drops previ- [I]f one looks that have Tencer). bell’s witness Dr. Allen ously decapitation weights caused and the Despite involved, testimony, people district court the thickness of the Campbell “presented if, found rope, example, people no credible then for those notes, majority correctly, Royal strangulation, long drop risking decapi- 44. The tion Committee "studied the relative merits of the hardly tation can be considered "humane.” long drop, long drop short and and concluded a majority was more humane.” Ante 684. The Ryk Nasmyth-Jones, 45. See James & Rachel Royal fails to mention that reached this conclusion because it felt that Committee Cervical Occurrence Fractures in Victims decap- Hanging, Judicial 54 Forensic Science Int’l strangulation. itation was better than Under to- majority study cites this ante at day's decency, standards of where methods exist 684 n. 13. killing prisoners decapita- without risk of *53 now, hanged guarantee hanged then were much else there to that were the neck stay together. just I using given, the table think one of them will It’s musculature. longer drop, given have been would really trying you’re I’m walking What — slightly have been a shorter other would very having fine line here between drop, I think both of those would be at but enough energy enough pull and force to high decapitation. risk of things apart, energy but not too much or catastrophic, too much force to create a Transcript at 121. quote, injury, which would be the neck— F. elaborated on Dr. Dr. Allen Tencer actually coming the head off. The reason conclusions. Dr. Tencer is Director James’s spine is the is itself the structure that Laboratory of the Biomechanics at Harbor- by greater absorbs far the amount of the Hospital, professor as a in the view as wеll energy. University Washington’s Departments Q. protocol And is the set forth Orthopedic Surgery Engi- and Mechanical manual, Washington weight neering Bioengineering. and its Center length drop, sufficient to assure that specializes in of the He the biomechanics you’ve just spoken fine balance that of? spine spinal generally trauma. See A. No. studying Transcript at 458-62. After Transcript at 490-91. Washington hanging protocol,46 details of the possibility Dr. Tencer concluded that a By testimony contrast with the detailed decapitation Transcript remained. at 477. Tencer, quite Doctors James and which was Indeed, explained, Washington proto- he evidently good study based on a deal of actually possibility col enhanced the of de- knowledge concerning judicial hanging and capitation by rope requiring the to be treated death, processes by it causes elasticity.47 explained to remove its As he on testimony experts simply the state’s direct examination: example, not For Dr. Zum- credible. Ross walt, the chief medical examiner for the state Q. rope And what is the effect if the is Mexico, decapitation of New testified that
treated, be, as it is recommended to as set “absolutely impossible,” was not Washington protocol, forth in the happen But I don’t see how could elasticity possible end that as much length drop, based on that the noose rope? from the removed policy diameter as described and used Well, happens your system, A. what system. state criminal stiffer, rope energy if the more Transcript Dr. Zumwalt did at 236-37. Yet higher spine. force is delivered to the explain drop length it was about what Q. any impact Does that have on the that led him to this conclu- noose diameter decapitation likelihood that a would occur sion. judicial hanging? in a Indeed, quite the cross-examination made Yes, you’re trying A. because when clear that Dr. Zumwalt had no basis whatso- cross, injury apparently being achieve the ever for his conclusions. On Dr. Zum- is, here, regarding pull spine achieved walt that his conclusion stated it, judicial hanging apart, you very decapitations as soon as do there isn’t rareness of Indeed, familiarity egregious example, Dr. harm. take the most Dr. Tencer evidenced his To protocol fluency Washington's refer- Reay testimony “particularly Donald —whose ring specific throughout elements of it (see Findings court of Fact aided” the district testimony explaining how these elements 5-6) and Conclusions of Law at that he —testified See, e.g., factored in to his ultimate conclusions. had not reviewed the table the state used to Transcript at 481-82. Dr. Tencer’s evident un- lengths drop and that he had not done determine derstanding Washing- of the ins and outs of the correlating drop length body research into protocol compares favorably striking- ton ly —and weight. Transcript at 311-12. testimony experts. of the state’s —with They rarely specific if ever referred to the details rope to reduce the risk of slow 47. The is treated protocol, simply and instead made conclu- soiy strangulation. statements that See ante at 685. not cause *54 experience thought. Transcript at 271- sources: Ms he had earlier on two was based 73.49 autopsies on automobile accident performing decapitated, and the had been
victims who Reay, King testimony of Dr. Donald consideration of what forces “calculation examiner, County’s any- chief medical judicial hanging.” in a I would occur think conclusory. thing even more baseless Transcript at 267. Yet Dr. Zumwalt admit- unlikely Reay Dr. testified that it was experience with automobile acci- ted that his protocol state execution actually gave ability him to victims dent decapitation: lead to would much force is sufficient to determine how Doctor, Q. directing your attention produce decapitation.48 Dr. Zumwalt also again Respondent’s ExMbit No. once attempt had made no admitted that he protocol. If the which is the execution investigate any of the facts or medical litera- provisions policy of that are followed rela- regarding decapitations noose, cetera, wMch had oc- weaving ture again tive et appropriate drop length is deter- hangings. Transcript and the previous curred in mined, you likely' how do think it is that a colleague informed Dr. at 270-73. When decapitation will occur? decapitation Zumwalt that a had occurred during hanging of Black Ketchum in Jack likely, decapitation A. I don’t think Mexico, home state of New he neck, Dr. Zumwalt’s certainly. Doing examining the — slightest today already, make effort to and I did this twice it’s a did not even structure, body very quite resilient acquaint himself with the facts of that case. resilient. When, hearing, Campbell’s counsel at the photographs Dr. Zumwalt several showed Q. you deny though, But don’t sir— decapitation first time Dr. the Ketchum me, Doctor, decapitations excuse some —the judicial hang- Zumwalt had seen them —Dr. Zumwalt al- have occurred as a result ings? opmion decápitation earlier tеred his hanging. Noting inherent in that Ket- risks happened. I A. It could have think drop chum’s involved similar you could fashion a circumstance where it
length rope width to that the Wash- might happen. You could choose the vic- ington protocol, Dr. Zumwalt admitted that stature; physical tim’s the structure would ' greater decapitation risk of than there was a make a difference. you ability your experience Q. Q. [where 48. And in those cases automobile So have no passengers decapitated] you pro- are do to calibrate the amount of force sufficient case, ability decapitation average you? to calculate the amount of force that was duce do actually successfully right, used amount of That’s I force A. do not. —the added). decapitation? Transcript (emphasis that caused the at 268-69 No, impossible, A. that would be because not admissions, Despite these Dr. Zumwalt re- you talking speeds about the and mass baseless, turned on redirect to his earlier conclu- head, body you’re talking but about sory opmion: how much force is directed over how much sur- neck, body, applied [T]he face area when the actual force strikes the amount of force edge sharp relatively protocol, whether it was a blunt based on that is not sufficient to edge. decapitation, large cause and I think there is a. know, you you margin Q. don’t all that So since can of error there between the amount of is, necessary quick painless say cases, whatever amount force was in those force to cause a amount, decapitation? produce it was sufficient to death and the of force that would be necessary decapitation. Yes. to cause And that I A. people following stay you, protocol Q. And don’t see the who aren’t think within decapitated go margin. in automobile accidents who live, you? Transcript opinion simply not do 296. This No, generally light A. we don’t see the survivors of credible in Dr. Zumwalt’s earlier testimo- ny accidents. that he did know how much force was automobile not you anything Q. say decapitation So can’t about sufficient to cause and that he had produce prior hangings studied which had resulted in amount force that is sufficient decapitation, you? decapitation can to determine what factors led decapitation. A. No. *55 any drop Doctor, lengths, A. I have not done drop lengths that are Q. anything of that sort. Respondent’s Exhibit provided for seven, corresponding it relates to a page as Zumwalt, then, Transcript at 311.50 Like Dr. you executing body weight, do believe that Reay absolutely Dr. had no basis for his weights dropping of those person Washington hanging conclusion that the state lengths likely to corresponding them the protocol decapita- would not create a risk of decapitation? result seriously tion. had not reviewed the He No, drops I think those would A. don’t protocol, any and he had not consulted of the decapitation. produce judicial hanging any literature on or done subject.51 his own research on the Reay gave no Transcript at 322-23. Dr. explanation. further Boyd Stephens, Dr. Francisco San examiner, medical had at least reviewed responses, might expect that one Given judicial some of the medical literature on Washington actually he had reviewed testimony hanging, but his was also the most protocol perhaps done some research or equivocal experts. of all of the state’s On drop effects of different regarding the examination, thought direct he stated that he weights. lengths people of different Yet decapitation very unlikely “a would be necessary perform of this he did Washington protocol.52 It event” under preparation: cross-examination, however, became clear on Reay, you op- Stephens’s opinion on a Q. Doctor have had an that Dr. was based coming today misunderstanding of the of the portunity prior to to Court details Wash- lengths ington protocol. coming to his conclusion drop that correlate review weights page regarding Washington set forth on seven the risks under protocol, Stephens had relied on what he exhibit? Dr. thought protocol provid- fact that the was the They I A. have been available me. drop length in the based on ed for variations have not studied them. prisoner. differences of the On anatomical cross-examination, Q. Have You have not studied them. admitted that he had he Stephens you any type Finally, of research into Dr. conducted been mistaken.53 length forthrightly acknowledged data on correlating body weight drop judicial judicial hanging are so limited that all of his hangings? Well, exchange of variables that occurred later: A. there are a number 50. A similar hanging, many in a of which can be re- occur Reay, you Q. conducted Doctor potentially There will viewed and controlled. judicial hangings? into the field of research perceived always are not be some variables that No, absolutely A. not. looking at the or not controlled. I think that in papers you Q. Have reviewed the research protocol that the likelihood of as written now writings judicial hangings related to or other extremely unlikely. decapitation small supplied you by attorneys which were it's I don’t that one could state that think parties for either of the in this case? impossible, guidelines as set but I believe material, have had the A. I have not had—I very unlikely event. forth would make this a spent any but I haven’t time with it. Transcript 421. Transcript at 332. you 53.Q. Were mistaken? Zumwalt, Reay 51. Like Dr. Dr. also had not seen decapitation photographs of Ketchum’s be- proto- is included in other A. I think so. That hearing. Campbell’s When counsel fore the cols, you’re right, that it is not in but I believe photographs hearing, him these at the showed Washington directives. decapita- Reay Dr. altered his view of the risks of pro- Transcript Even at 426. tion, stating possible that "I think it’s on the variations, provided the testi- tocol had for such photographs." Transcript at 332. basis of these persuasively mony of Drs. James and Tencer why impossible per- explained for medical it is Q.Doctor, properly all question, you take account of last Do have an sonnel to detect 52. idiosyncracies prisoner’s opinion degree anatomical within a reasonable of medical of a decapitation. certainty likely decapitation the risk of thus to avoid how infra Washington's protocol? p. 725. occur under good past un- hangings entailed a measure of other evidence of the results of conclusions circumstances, Transcript at 448-49. Under these the dis- certainty. exists. refusing trict court abused discretion in its improperly court also excluded The district photographs. admit the photographs of the execution of Black Jack whole, testimony Taken as a admitted Ketehum, hanged in New Mexico in who was hearing at the made clear that en- n photographs clearly These showed *56 significant decapitation, tails risk of even as decapitated. had been that Ketehum practiced Washington. pho- The Ketehum photographs these un- district court excluded tographs would have made this fact even Rule Evidence which der Federal more clear. The state’s baseless and conclu- court to exclude relevant evidence if allows a sory testimony contrary simply not did substantially probative value is out- “its any weight deserve in the District Court’s by danger prejudice, weighed of unfair decision. issues, misleading confusion of the or jury, by delay, of undue or considerations Slow, B. The Risk Death Painful time, presentation or needless waste of “hanging The district court concluded that cumulative evidence.” Becausé did Washington procedure under the would re- width, drop length, rope not the exact know arteries, sult occlusion of the carotid caus- forth, hanging, used in the Ketehum and so seconds, unconsciousness within 6 to court concluded that the district rele- causing quick painless and thereafter photographs substantially vance Findings death.” of Fact and Conclusions of by outweighed countervailing considerations. However, ig- Law at 6. the district court persuasive nored the and unrefuted testimo- However, Campbell great provide did ny Washington protocol that the would not - procedures deal of information about cause sufficient arterial occlusion to lead to hanging. Ketehum used While this nearly immediate unconsciousness all specific not information was as as the Wash- testimony cases. This made clear that a risk Instruction, ington Field it did indicate that remains, asphyxiation and that death procedures hanging used in the Ketehum through pathway involving asphyxiation quite Washing- to those were similar used might take several minutes. today. example, Campbell For ton was able testimony The district court heard placement discern the knot in the Ket- .to unconsciousness would occur within to .six execution, provide general chum as well as to hanging twelve seconds caused a com- parameters rope drop for the width arteries,54 plete occlusion the carotid length, general as as a well estimate of Ket- figure to experi- six twelve second came from weight. Transcript chum’s expert Reay ments the state’s Dr. conducted using This information would have allowed the sleeper- so-called “carotid hold.” compare procedures court to sleeper were The carotid hold is a form of choke- employed by in the Ketehum execution with personnel hold used law enforcement employed Washington. suspects. places those that are Be- subdue The officer the indi- forearm, cause of the similarities between these two vidual’s neck between the arm and procedures, photographs facing away would have with the elbow from the sus- although dispositive pect’s applies pressure been face. The officer relevant — —evi- hanging protocol that a like that airway dencе both carotid arteries but leaves the adopted in state entailed a risk procedure designed unobstructed. This decapitation. Aside from the state’s own rapidly. occlude both carotid arteries Tran- Dodd, Westley autopsy practically script Reay Alan exper- 300-01. Dr. conducted brain, vertebrae, supply they 54. Four arteries blood to the teries are surrounded (one arteries, two neck) arteries carotid on each side of the much harder to occlude than the carotid especially high point and the two vertebral arteries. At least at the on the neck where (blocked) Thus, hanging two of these arteries must be occluded the noose sits. Id. for a to lead occlusion, in order to render an individual unconscious. to unconsciousness arterial it must Transcript generally at 111-14. Because the vertebral an- block off both carotid arteries. Id. majority sleeper hold on sev- The district court also the carotid iments heavily rely much too agents all the results West- agents FBI found eral ley autopsy, they Alan Dodd’s construe within to ten seconds unconscious six became showing quickly painless- that he died occlud- carotid arteries were the time their ly.56 misplaced, This reliance several Transcript at 301. ed. First, Campbell’s experts as both reasons. district court to have concluded For the experts explained, impos- and the state’s it is within hanging causes unconsciousness generalize single hanging sible seconds, necessarily to ten must six predict hanging the results of what a future Washing- under concluded simply many possible will be. There are too rapid, reliably lead to protocol ton death, pathways many variables too carotid arteries. complete occlusion both pathway pathways that determine what However, according testimo- case, the unrefuted particular will occur in a to use one *57 See, James, judi- Washington ny Dr. the state all predictor case as a for future cases. e.g., Transcript (testimony the at hanging protocol does not maximize 450-51 cial Thus, expert, Stephens). Dr. the state’s that such will occur. possibility occlusion Westley quickly Alan Dodd even was killed placed for to be protocol calls the knot The painlessly, anything guaran- this is but neck, snugly the left ear. high on the under Campbell pris- other tee that Charles knot bulk placement, of this the As a result lingering will not suffer a death. oner drop trans- energy from the will be of the right prisoner’s the of the ferred to side Second, put bluntly, it re- to the evidence right certainly the will neck. While carotid manip- garding the Dodd execution has been occluded, likely far the left it is less It ulated the state. is a well-understood Transcript at 111-14. The carotid will be. opinions expert in American law that fact only one insufficient to occlusion of carotid is always conflict and the interests often serve unconsciousness, however, rapid be- cause to parties who seek introduce them the other carotid and the two vertebral cause ordinarily court. We understand compensate. Transcript at 112- arteries will readily each truth is most uncovered when 13. to its party equal has access the evidence and interpret expert own witness examine testimony makes clear that the Wash jury can facts. The court or the relevant hanging protocol ington judicial cannot reli expert opinions against one weigh then rapid ably be counted on cause occlusion which is more credi- another and determine Transcript carotid arteries. at of both ble. 37; 111-14; Graney Deposition Deposition likely, Longstreth 16.55 As Here, however, completely con- state injury cause a protocol spinal could relating to the trolled all of the information yet prisoner him con paralyzes the leaves execution, past as well as executions. Dodd case, prisoner In such a scious. Dodd execu- The state limited access to the minutes asphyxiation, up after to two die choosing al- people of its own tion to suffering. Longstreth Deposi of conscious expert conduct only one own—to lowed —its clearly thus tion at 51. district court surprisingly, Dodd. Not autopsy on determining hanging under the quickly erred that Dodd expert testified died addition, judge in Washington protocol rapid un painlessly. would lead the district Campbell develop- virtually prevented all cases. case consciousness and Indeed, among Actually, apparently was some conflict arterial did not 56. there occlusion Westley autopsy or death in Alan experts meaning cause unconsciousness on the state’s photograph's case. The of Dodd follow- Dodd's ing performed autopsy, findings. Reay, Dr. who furrowing pronounced the execution show Transcript quickly. at 307. Dodd died stated that neck, right side of his little redness on on the but Zumwalt, could not however testified that he Dr. side, the left script where knot was located. Tran- certainty that Dodd say medical with reasonable Longstreth Dodd at 114. Dr. testifiеd that immediately unconscious. had been rendered disruption experienced flow to the of blood Transcript at 288. Longstreth Deposition brain. at 68. ing any independent Washington of his own evidence Hanging C. The Protocol relating refusing to the Dodd execution explained body I opinion, As of this request videotape hanging Dodd’s so clearly relying district court erred in that a fair record could be made. Dodd did (also Washington hanging protocol state Campbell’s request only object to Instruction) — called the Field to conclude that Blodgett, did. See state hangings Washington subject will not be (9th Cir.1993). Had the F.2d 1356 strangulation decapitation risks that expert Campbell’s to conduct an au- allowed hangings throughout history. have afflicted granted topsy had the district court 12-page typed The Field Instruction is a —or Campbell’s videotape hang- motion to Dodd’s largely document that is devoted to adminis- relations, pre- district court would have been trative details such as media crowd —the control, fuller, and the last meal. analysis Less than two sented with a fairer of what pages and a half of the Field Instruction set hanging actually of that results were. procedure forth the actual for con- manipulation of The state’s evidence re- demned pages, only inmates. Of these three garding hangings beyond extends the Dodd anything instructions had to do with the risk execution. Between was a decapitation: the chart which determined misdemeanor in the state of prisoner’s drop length,57 the instruction anyone publish the details of execu- which set forth the width and treatment of *58 § tion. See Wash.Rev.Code 9.68.020. rope, former and the instruction which stated addition, prior execution, to the Dodd placed knot would be behind the autopsy hanged of a inmate had ever been prisoner’s left ear. All of these instruc- Thus, Washington only very in done state. a including drop chart —came from tions — a regarding small universe of evidence existed military prepared execution manual hanging, large part the results of due to Transcript 1959. (testimony at 175 suppression Wood). the state’s of information. The Tana only problem district court exacerbated the Superintendent drafting Wood oversaw the by paucity by caused of evidence exclud- Transcript of the Field Instruction. at 160. ing hangings various evidence of two testified, As she simply the state lifted the slow, painful resulted deaths —one ordeal portions protocol crucial directly of its out of taking Although Campbell thirteen minutes. military the 1959 execution manual. The proce- did not know all of the details of the any state did not look to other information employed hangings, dures in these he did regarding procedure, nor did it do they long drop know occurred after the regarding prior research executions in Thus, universally employed. had become the Washington, nor did it seek advice from hangings evidence of these was relevant and professionals. just medical copied pro- It highly probative linger- to show that a risk of military adopted cedures the had in 1959. ing adoption death remained even after of Superintendent that, explained Wood al- long drop. practically Because this was though military she had no idea how the risks, evidence available these prepared execution manual was even —or court the district abused its discretion in military whether the hanged any- had ever refusing to admit it. body according procedures to the in the man- chart, According drop length solely to this 160 6'4" prisoner's weight. function of the The chart 165 6'2" provides following drop lengths: for the 170 6'0" 175 5'11" (Pounds) WEIGHT DROP DISTANCE 180 5'9" 120 8T' 185 5'7" 125 7'10" 190 5'6" 130 7'7" 195 5'5" 135 7'4" 5'4" 7'1" 5'2" 6'9" 6'7" 5T' 6'6" 220 and over 5'0” not) (it preceding manual the weeks an execution. See relied on the ual had —she military.” Findings of Fact and Conclusions of Tran- Law at it came from the “[b]ecause (“The judicial Washington hanging pro- 2-3 script at 178. practiced frequently during cedures are military proce- fact that Leaving aside the prior to a weeks scheduled execution hardly accuracy their known for dures are Penitentiary.”). staff of the State aside, humanity, leaving the fact that virtually nothing these rehearsals have Yet no idea how or Wood has Superintendent reducing decapitation. the risk to do with put military personnel who even whether the itself, Like the Field Instruction the re- sought manual to min- together the execution primarily hearsals are tailored to the institu- ought decapitation, the state imize the risk goals aiding'a government agency tional wary blindly particularly to have been administering complex procedure, rather pro- military manual’s adopting the execution goals reducing than the medical the risk of was, hanging. manual after cedures for Thus, prisoner. prior mutilation of the all, adopted drop prepared in and it prison Dodd execution officials rehearsed the quite to the one em- chart that was similar positioning of the witnesses law enforce- Century. 19th ployed in Britain the late during personnel Using ment the execution. great have learned a deal Yet scientists stand-in, they long determined how it tоok judicial hanging about the biomechanics prisoner for the to walk from the cell to the groundbreak- 1959. Until Dr. James’s since They practiced opening death chamber. also study, expert wisdom the conventional curtains, closing making as well as hanging usually caused death held that relevantly, sure the doors were locked. Most Thus, those breaking prisoner’s neck. hood, they practiced putting leg on the re- hanging procedures sought to cre- designing straints, noose, they conducted at neck, in enough force to break the order ate practice hanging using bag a sand least one strangulation. by slow Dr. to avoid death *59 place person. Transcript in of a at 162-66. however, proved, James’s research signifi- None of these acts of rehearsal could breaking very a common of the neck is not cantly decapitation, risk of howev- reduce the judicial hanging. pathway to death See er, they prison because could not tell the Transcript (testimony of state’s at 446-47 anything officials about the ease with whieh Thus, Boyd Stephens). Dr. someone witness particular prisoner’s head would come today might designing hanging procedure off. energy to the to transfer less kinetic seek rely court also seemed to The district decapita- risk of neck and hence decrease the Superintendent finding of the “[t]he its Washington proce- Because the tion. Penitentiary authority has State adopted military were from a manual dures judicial hanging protocol in to alter the ac- could not account of which have taken experts cordance with the advice medical research, developments in these medical physical or to accommodate unusual hardly risk of can be said to minimize the person to be medical abnormalities of the light presently decapitation available hanged.” Findings of Fact and Conclusions Camus, alternatives. Albert Cf Reflections doubly flawed. of Law at 3.58 This reliance is (“The truth is that in an on the Guillotine First, Superintendent it is not clear that the age age atomic we kill as we did actually authority has the the district science, steelyards taught ... has us which Superintendent had. court concluded she killing, much about could at least teach us too drop length herself stated that Wood decently.”). kill chart, always that the follow the would rely heavily Washington protocol provide did not for ad- The district court seemed to health, age, muscu- justments due to the prison on the fact that staff conducts Transcript hanging procedure prisoner. condition of the rehearsals of the lar various doctors; dinarily Although consult in these matters are not the district court does not acknowl- Transcript they physician’s at 189 edge point, are assistants. it is notable that "medical Wood). Superintendent (testimony experts” will or- of Tana with whom the However, decapitation. As all of the witnesses also stated that she risk she at 183-86. case, in this there is a tradeoff ability from the understood depart thought that decapitation and increased risk of between “implicit position [her] drop chart was asphyxiation. Yet the dis- decreased risk of Transcript at 190. authority.” majority and the here let the state trict court have the Superintendent does if the Even by relying ways on the state’s have it both vary drop length depending authority rope holding of the treatment specific characteristics of a individual on the 684-85, while stat- rapid, will be see ante persuasive court heard prisoner, the district minimizes the risk protocol also evidence that the state and unrefuted decapitation. those characteristics unable to detect sum, majority the reliance the likely. Super- decapitation more made place on the Field Instruction district court that, prior testified intendent Wood per- misplaced. district court heard The execution, per- physician’s assistant would pro- evidence that the suasive and unrefuted focusing on the “inspection” a medical form decapita- risk of tocol will not decrease the weight, Tran- height, and veins. prisoner’s fact, tion —in it will increase this risk. Dr. testified— 186. Yet as Tencer script at findings factual to the con- district court’s him on this contradicted no witness trary clearly erroneous. three variables more than these point —far an individual is like- whether determine Rejection Hanging Appendix B—The decapitated. Other crucial factors ly to be the United States vertebrae, prisoner’s the size include hanging as following states abandoned content of his density, the mineral his bone following on the dates: a method of execution bones, loading. lifestyle, and the rate of Many of factors Transcript at 482-87. these No. Alabama —1923. See 1923 Ala.Acts comprehensive in a could not be detected electrocution). hanging (changing from physician, highly trained examination has not had the death Alaska —Alaska cursory “inspection” in a much less penalty since statehood. Superin- assistant.59 Even physician’s therefore, vary рrotocol, can tendent Const, Ariz. art. Arizona —1933. See measurably the likeli- decrease fact does 1933) (changing (approved § 22 October decapitation.60 hood of gas). to lethal *60 above, Finally, noted the district court as See 1913 Ark. Acts No. Arkansas —1913. state’s consider the fact that failed to electrocution). (changing hanging from 55 rope all to remove elastici- treatment proudly the state 1937 ch. ty procedure which See Cal.Stat. California —1937. —a 172, hanging arguing protocol (changing § 1 from to lethal that its pointed to actually gas). rapid increased the lead to a death — prison- provided testimony particular characteristics of individual James also unrefuted 59. Dr. great expe- er, presented hearing states that "it takes that the literature rience in inches difference at the made the evidence drop," adjusting a few quite procedure one clear that this like the drop length in the can make an play Quare in Brendan Behan’s described Transcript at in the results. enormous difference Fellow: execution, Washington Before the Dodd 156-57. experience any executioner with hangman] gets quare did not have an fellow's [The Now, hanging. the state has an executioner weight the doctor so as he’ll know what from experience of the Dodd whose entire consists him, drop give but he likes to have a look at inexperienced hanging. individual Such an is, well, him to see what build he how thick as hardly upon to make the kinds of be relied could is, says judge he can his neck and so on. He necessary adjustments would be to avert fine decapitation eye. gave If he him too much better with the physician’s assis- if the state's —even breaking way strangle him instead of one he'd prisoner's physiological could discover tant neck, way pull he'd and too much the other varying protocol. that warranted conditions head off his shoulders. clean Fellow, Behan, Quare Act II Brendan Washington protocol allows
60. To the extent the drop length to fit the variation 727 Maine —1887. 1887 Me.Laws eh. 1933 Colo.Sess.Laws See 133 See Colorado —1933. (abolishing penalty 61, (changing hanging § from to lethal the death at a time when 1 ch. hanging the state retained as the method of gas). execution). 1935 Conn.Pub. See Connecticut —1935. Maryland hanging See 1955 Md.Laws ch. (changing from
Acts ch. 266 —1955. electrocution). (changing hanging gas). 625 from to lethal 281, Massachusetts —1898. See 1898 Mass.Aets See 65 Del.Laws ch. Delaware —1986. (changing § (1986) hanging ch. 6 from to elec- (changing hanging § from to lethal 1 Storti, trocution); also In re see 178 Mass. injection)'. C.J.) (Holmes, 60 N.E. 210 Florida —1923. See 1923 Fla.Laws ch. (stating change hanging from (changing hanging from to electrocu- purpose electrocution was “devised for the tion). reaching proposed swiftly the end as Georgia See 1924 Ga.Laws painlessly possible”). —1924. electrocution). (changing hanging § 1 from Michigan See 1963 Mich.Pub.Acts —1963. has not had the death Hawaii —Hawaii (abolishing penalty No. 119 the death at a penalty since statehood. hanging time when the state retained as the execution). method of 1978 Id.Laws ch. 70 Idaho —1978. See injection). (changing hanging from to lethal Minnesota —1911. See 1911 Minn.Laws (abolishing penalty ch. 387 the death at a § 1927 Ill.Laws 400 Illinois —1927. See hanging time when the state retained as the electrocution). (changing hanging from execution); Moos, method of see also Grant 1913 Ind.Acts ch. 315 Indiana —1913. See Newspaper Hanging Details Made it electrocution). (changing hanging to from Last, Tribune, Minneapolis State’s Star 26, 1992, p. (stating Iowa —1965. See 1965 Iowa Acts ch. March 19A that “the Williams, (abolishing penalty gruesome, the death at a time slow death” of William 14jé employed hanging hanged as a meth- in 1906 and took min- when the state who was execution). die, six-year “began movement in od of utes Legislature the Minnesota to abolish the Although hanging has not Kansas —1977. penalty, finally which succeeded formally been abolished as a method of exe- 1911”). cution, longer there is no offense for capital Mississippi 1940 Miss.Laws punishment is authorized See —1940. (changing hanging from to electrocu- that state. ch. tion). Kentucky Ky.Aets ch. —1938. hanging § 221- (changing from to elec- Missouri —1937. See 1937 Mo.Laws trocution). (changing gas); to lethal *61 Brown, 53, 112 v. 342 Mo. 568 State S.W.2d Louisiana —1940. See 1940 La.Aets No. (1938) curiam). (per electrocution). (changing hanging 14 to from Jones, hanging ex rel. Pierre v. 200 La. retains as a See also State Montana —Montana (1942) 808, 42, execution, (noting hanged it has not 9 So.2d 43 the method of but justified change grounds anyone Philip 1943 execution of on the since the Coleman, recognized an African-American man “electrocution is as a more “Slim” hu- painful killing of a white wom- mane and less manner or means of who confessed to the carrying penalty by hang- Although of its out the death than an. not noted the size Prejean, Walking: population, ing”); Helen Dead Man African-American Montana next Eyewitness Penalty sought hang an when in 1976 it An Account the Death to individual (1993) (“Louisiana penalty Dewey imposed in the the death Cole- United States 18 African-American, man, again fol- hang used to its criminals until the state another killing legislature lowing in 1940 that electrocution a confession to the of white decided efficient.”). This court reversed as to the death would be more humane and woman. 728 McCormick, Pennsylvania F.2d
penalty in Coleman 874 See 1913 Pa.Laws —1913. Cir.1989). (9th (changing hanging 1280 No. 528 from to electrocu- tion). 1913 ch. Nebraska —1913. See Neb.Laws Rhode Island —1973. See 1973 R.I.Pub. electrocution). (changing hanging 32 from to (changing hanging Laws ch. 280 from to le- 1921 387 Nevada —1921. See Nev.Stat. gas). thal (changing hanging gas); from to lethal see South Carolina —1912. 1912 See S.C.Acts Jon, 418, also v. Gee 46 Nev. 211 P. State 402, § (changing hanging No. from to elec- (stating legislature trocution). “sought provide inflicting a method of South Dakota —1939. See 1939 S.D.Laws penalty the most humane manner science”). (changing § ch. hanging from modern elec- known to trocution). Hampshire New See N.H.Rev. —1986. Tennessee —1913. See 1913 Tenn.Pub. (added 1986) title ch. 630:5 Stat.Ann. (first session) Acts. ch. 36 (chang- executive (changing hanging injection). from to lethal electrocution). hanging from Jersey New See 1906 N.J.Laws —1906. Texas—1923. See 1923 Tex.Gen.Laws ch. (changing hanging electrocution); from 51, 1; (“The § § see also id. fact that our Tomasi, see also State v. 75 N.J.L. 69 A. present putting method of to death con- (1908) (“Instead hanging by 217-18 by hanging demned convicts the condemned neck, legislature provided [the has] now in the judgment counties where the of death speedily that death shall be caused as frequently great is obtained creates distur- possible by application the direct of electrici- county, bance in the and the further fact that ty body of the convict. On its face the system antiquated sup- and has been imports lawmaking statute an effort planted many states the more modern body mitigate pain suffering system and humane of electrocution create convict.”). emergency imperative public and an ne- cessity_”). New Mexico—1929. See 1929 N.M.Laws (changing hanging ch. 69 from to electrocu- Utah —1983. See 1983 Utah Laws ch.
tion).
§§
(changing
from an election between
shooting
hanging
to an election between
New York —1988. See 1888 N.Y.Laws ch.
shooting
injection).
and lethal
(changing
hanging
electrocution);
from
Kemmler, supra
see also
note 1.
Vermont —1913. See 1912 Vt.Laws No.
97, §
(changing
hanging
from
to electrocu-
North
Carolina —1909.
1909 tion).
(changing
hang-
ch. 443
N-C.Sess.Laws
from
Virginia
See 1908 Va.Acts
electrocution).
ch. 398
ing to
—1908.
electrocution).
(changing
hanging
from
Dakota —1973.
North
See 1973 N.D.Laws
Washington Washington
employs
still
—
(abolishing capital punishment
ch. 116
at a
hanging as a method of execution.
employed hanging
time when the state
as a
execution).
method
Virginia
West
See 1949W.Va.Acts
—1949.
(changing
hanging
ch. 37
from
to electrocu-
159-60,
Ohio—1896. See 1896 Ohio Laws
tion).
(changing
Bill No. 216
Senate
*62
Wisconsin —1853. See 1853 Wis.Laws ch.
electrocution).
103 (abolishing
penalty
the death
at a time
Oklahoma —1913. See 1913 Okla.Sess.
employed hanging
when the state still
as the
113, § (changing
hanging
Laws ch.
from
execution).
method of
electrocution).
Wyoming
Wyo.Sess.
See 1935
—1935.
22,
Oregon
§
(changing
hanging
See 1937 Or.Laws ch.
Laws ch.
from
—1937.
(changing
§
hanging
gas).
gas).
from
lethal
lethal
addition,
Military gave up
the U.S.
ORDER
hanging
in 1986.
as method
execution
appears
It
to the court that
filing
since the
190-55,
§
Army Reg.
6-2
Con
See
opinion
case,
following
mo-
gress
abandoned
as the federal
by
tions have been
parties:
filed
executing
method of
civilians convicted of
crimes in 1937.
Andres v.
federal
Unit
(1)
stay
execution,
Motion to vacate
or
States,
745 n.
ed
alternative,
in the
motion for immediate is-
(1948)(“
‘Many
n.
POOLE, Judge, dissenting: Circuit by hanging I believe that death inflicts suggestion Motion to strike for rehear- intolerably punishment, cruel and unusual by the full pro court and to strike se crime; however heinous the that it is unac- (filed petition rehearing Wood, for by 2/23/94 ceptable today as would be the rack and al.). et screw; and therefore is violation of the appears It further petition that a for re- Eighth and Fourteenth Amendments to the hearing suggestion rehearing by for Constitution the United States. full court was filed on behalf of I therefore dissent. February Campbell’s pro supplemental petition
se brief on for rehear- ing was received on the same date. Having papers considered the filed parties, appropriate it is that the court first Wood, al., reply receive a Camp- et petition rehearing bell’s for full court en CAMPBELL, Charles Rodman suggestion banc before of the above Petitioner-Appellant, itemized motions are addressed the court. Therefore, now, it is WOOD, Superintendent, Washington Tana ORDERED submission of each of the Penitentiary, Walla, State Walla Wash above pending itemized motions is deferred ington; Gregoire, Attorney Christine O. grant deny decision whether the court will General, Washington, Respon State pending motion for reconsideration with dents-Appellees. suggestion rehearing by the full court. No. 89-35210. Appeals, United States Court of
Ninth Circuit. March WALLACE, Before: Judge, Chief BROWNING, TANG, POOLE, D.W.
NELSON, REINHARDT, BEEZER, WIGGINS, THOMPSON, O’SCANNLAIN, *63 KLEINFELD, Judges. Circuit