No. 93-8931 (A-901) | SCOTUS | May 26, 1994
Dissenting Opinion
dissenting.
In 1853, hanging was the “nearly universal form of execution” in the United States, State v. Frampton, 95 Wash. 2d 469" court="Wash." date_filed="1981-04-16" href="https://app.midpage.ai/document/state-v-frampton-1113765?utm_source=webapp" opinion_id="1113765">95 Wash. 2d 469, 492, 627 P. 2d 922, 934 (1981), and 48 States once imposed death by this method. Today, only Washington and Montana still employ judicial hanging., Montana has not executed anyone by hanging in over 50 years, and no one who has contested the sentence has been lawfully hanged in the United States in more than three decades.
Moreover, the States’ rejection of hanging has been much more universal than that of practices this Court previously has found to be cruel and unusual. Compare Thompson v. Oklahoma, 487
In a 6-to-5 en banc opinion, the Court of Appeals for the Ninth Circuit disregarded this overwhelming evidence of state practice, holding that such evidence is relevant to consideration only of the proportionality of a death sentence. Where the method of execution-is contested, the majority reasoned, the Eighth Amendment prohibits only “the unnecessary and wanton infliction of pain.” App. to Pet. for Cert. A-20. Because hanging does not inflict “purposeful cruelty,” the method is constitutional. Id., at A-25. The Ninth Circuit’s analysis is surprising given that this Court never has held that pain is the exclusive consideration under the Eighth Amendment, nor distinguished between challenges to the proportionality and the method of capital punishment. To the contrary, we have suggested that “[a] penalty must also accord with ‘the dignity of man,’ which is the ‘basic concept underlying the Eighth Amendment,’ ” Gregg v. Georgia, 428 U.S. 153" court="SCOTUS" date_filed="1976-07-22" href="https://app.midpage.ai/document/gregg-v-georgia-109532?utm_source=webapp" opinion_id="109532">428 U. S. 153, 173 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.), a suggestion supported by our recognition that painless, post mortem punishments such as public display, drawing and quartering, and mutilation also violate the Eighth Amendment. Wilkerson v. Utah, 99 U.S. 130" court="SCOTUS" date_filed="1879-03-17" href="https://app.midpage.ai/document/wilkerson-v-utah-89923?utm_source=webapp" opinion_id="89923">99 U. S. 130, 135-136 (1879).
But the en banc panel’s emphasis on pain also fails on its own terms. Under the most “ideal” of circumstances, hanging kills by breaking the spine, “When the victim is dropped from a sufficient height his vertebrae are dislocated and his spinal cord crushed; unconsciousness is immediate and death follows a short time later.” App. to Pet. for Cert. A-49 (Reinhardt, J., dissent
“When the trap springs he dangles at the end of the rope. There are times when the neck has not been broken and the prisoner strangles to death. His eyes pop almost out of his head, his tongue swells and protrudes from his mouth, his neck may be broken, and the rope many times takes large portions of skin and flesh from the side of the face that the noose is on. He urinates, he defecates, and droppings fall to the floor while witnesses look on.” App. to Pet. for Cert. A-57 (Reinhardt, J., dissenting), quoting Gardner, 39 Ohio St. L. J., at 121.
A person who slowly asphyxiates or strangulates while twisting at the end of a rope unquestionably experiences the most torturous and “wanton infliction of pain,” Gregg v. Georgia, 428 U.S. 153" court="SCOTUS" date_filed="1976-07-22" href="https://app.midpage.ai/document/gregg-v-georgia-109532?utm_source=webapp" opinion_id="109532">428 U. S., at 173 (joint opinion of Stewart, Powell, and Stevens, JJ.), while partial or complete decapitation of the person, as blood sprays uncontrollably, obviously violates human dignity.
Washington contends that by conducting its hangings pursuant to its Field Instruction WSP 410.500 or “protocol,” these misfortunes can be reduced. Washington’s protocol details the appropriate placement of the noose knot and the width and length of the rope to avoid decapitation, and provides that the rope be boiled, stretched, and waxed to reduce asphyxiation. The protocol includes a chart for determining, based on the weight of the defendant, the appropriate distance the body should be dropped. Washington relies entirely on this protocol in conducting its judicial hangings; the State employs no “trained hangers,” nor, apparently, are there any persons so trained in the United States. App. to Pet. for Cert. A-26.
The Ninth Circuit relied on this protocol and the State’s own evidence from its sole recent hanging to find only a “slight risk” that death by hanging will not be rapid or comparatively painless. Id., at A-25. Washington’s protocol, however, is derived almost
I do not dispute that petitioner’s crime was horrible or that his punishment should be severe. It is equally irrefutable, however, that the Constitution prohibits the imposition of punishments that are offensive to civilized society. Forty-six of the forty-eight States that once imposed hanging have rejected that punishment as unnecessarily torturous, brutal, and inhumane. I can only conclude that today in the United States of America, hanging is cruel and unusual punishment. I dissent.
The only execution by hanging to occur since 1963 was that of Westley Alan Dodd, who was executed in Washington last year. Dodd refused either to select his mode of punishment or to challenge his hanging sentence.
Washington’s death penalty statute, Wash. Rev. Code 10.95.180(1) (1992), provides: “The punishment of death . . . shall be inflicted either by hanging by the neck or, at the election of the defendant, by [lethal injection].” For defendants like Campbell who are unwilling to select their mode of execution, Washington imposes death by hanging.
Possible obstacles to review are the facts that petitioner’s habeas claim might constitute a new rule under Teague v. Lane, 489 U.S. 288" court="SCOTUS" date_filed="1989-04-17" href="https://app.midpage.ai/document/teague-v-lane-112206?utm_source=webapp" opinion_id="112206">489 U. S. 288 (1989) (plurality opinion), and that no circuit conflict exists regarding whether hanging is cruel and unusual. Because the only two States that retain hanging are in the Ninth Circuit, a circuit conflict on this issue is unlikely to emerge. Though I respect that Members of this Court may disagree, I would not await a conflict in a capital case raising a fundamental constitutional question such as this.
Hanging in South Africa also soon may be a thing of the past. Former President F. W. de Klerk imposed a moratorium on hanging in South Africa in 1990, and no one has been executed in that country since 1989. The African National Congress has campaigned to abolish the death penalty. See N. Y. Times, Apr. 27, 1994, section A, p. 9, col. 1.
Lead Opinion
C. A. 9th Cir. Application for stay of execution of sentence of death, presented to Justice O’Connor, and by her referred to the Court, denied. Certiorari denied. Justice Stevens and Justice Ginsburg would grant the application for stay of execution of sentence of death.