EXECUTION AMERICAN STYLE: The Court Ignores The Eighth Amendment Status Of Gas Chamber Executions

By JOHN DEAN

Friday, Jun. 22, 2001

This fall, the Supreme Court will look at the Eighth Amendment's ban on "cruel and unusual punishment." It is not a part of the Constitution they have been interested in examining in recent years.

Browsing though the Court's recent cases, I was appalled. What I found belongs in a Kafka novel, not the Supreme Court Reporter. It is little wonder that the rest of the world sees us as inhumane, and our posture on human rights as hypocritical.

[Execution]

For example, I direct your attention to the high Court's refusal to address gas chamber executions. The barbaric use of cyanide gas, it will be recalled, was perfected during the Holocaust by Hitler's Nazi scientists. Yet this execution method is still used in the U.S. today, with the Court's tacit permission.

Robert Alton Harris's Case

In 1992, Robert Alton Harris raised the issue of gas chamber executions in the federal courts, by filing a simple civil lawsuit seeking equitable relief to stop his own execution. Harris, and two other death row inmates, sought to have the only method of execution then available in California — exposure to cyanide gas — ruled to be cruel and unusual punishment.

Harris's attorneys established that of the 38 jurisdictions in the United States that had the death penalty, only three used gas: Maryland, Arizona and California. Moreover, neither Maryland nor California had actually executed anyone in the gas chamber in the past 25 years.

That suggested the method was "unusual"; a recent execution provided compelling evidence that it was also "cruel."

The Arizona Gas Execution

Just 18 days before Harris filed his case, Arizona had executed Don Eugene Harding in its gas chamber. Following that horrifying experience, Arizona's attorney general and state legislature put an end to the gas chamber as the only method of execution used by the state.

Why? An eyewitness account of Don Eugene Harding's execution — recounted later in the Supreme Court's 1992 decision in Gomez v. U. S. District Court for the Northern District of California — provides a breathtaking explanation:

When the fumes enveloped Don's head he took a quick breath. A few seconds later he again looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight. Don then took several more quick gulps of the fumes.

At this point Don's body started convulsing violently . . . . His face and body turned a deep red and the veins in his temple and neck began to bulge until I thought they might explode.

After about a minute Don's face leaned partially forward, but he was still conscious. Every few seconds he continued to gulp in. He was shuddering uncontrollably and his body was racked with spasms. His head continued to snap back. His hands were clenched.

After several more minutes, the most violent of the convulsions subsided. At this time the muscles along Don's left arm and back began twitching in a wave-like motion under his skin. Spittle drooled from his mouth . . . .

Don did not stop moving for approximately eight minutes, and after that he continued to twitch and jerk for another minute. Approximately two minutes later, we were told by a prison official that the execution was complete.

Don Harding took ten minutes and thirty-one seconds to die.

Cruel and unusual? It takes one cold, mean s.o.b. to say it is not.

A Stay is Granted in the Harris Case

Harding's suffering fueled Robert Alton Harris' lawsuit. On Friday, April 18th (which was Good Friday and the first Seder of Passover), Harris filed his case in the United States District Court for the Northern District of California.

Judge Patel stated that while "the Eighth Amendment does not require states to adopt the most humane method of execution," the evidence Harris had provided "suggests that lethal gas may be slow, painful, and torturous" and comparable to "descriptions of hanging" — an execution method that had earlier been found unconstitutional in California. The question whether Harris was correct that, like hanging, gas chamber executions are unconstitutional at least deserved a hearing, she held.

Harris had been scheduled to enter the gas chamber at midnight on the following Monday, April 21st, so Judge Patel's ruling had the effect of delaying the execution. Unhappy with the ruling, the State of California immediately filed an appeal with the United States Court of Appeals for the Ninth Circuit. The State wanted to get on with the execution.

Fighting Over the Stay

The events that followed have been carefully analyzed by University of Southern California law professor Erwin Chemerinsky, whose work I draw upon here.

On the evening of Sunday, April 20th, with no prior notice, a three-judge panel of the Ninth Circuit decided to hold an oral argument via the telephone — despite the fact that while the State of California had had the opportunity to file a brief, Harris had not.

On the morning of Monday, April 21st, the panel ruled that Judge Patel's ruling was in error, because the Harris case was ongoing in State court, and under established law, a federal court cannot enjoin an ongoing state court proceeding.

But it was the panel — not Judge Patel — that was in error. In fact, there was no pending State court case. Accordingly, that afternoon, ten judges of the Ninth Circuit, sitting en banc, temporarily stayed the ruling of the three-judge panel, so the entire Ninth Circuit could focus on the matter.

Keeping the Trains Running On Time

California again refused to wait, and immediately went to Washington to ask the Supreme Court to overturn the Ninth Circuit's stay. Remarkably, before midnight the Supreme Court did so, allowing the execution to go forward.

The problem was that Harris had filed a civil case, not a habeas corpus petition. A federal statute, Section 1983, creates a cause of action for plaintiffs to address alleged civil rights violations. Harris sought to use the statute to claim his anticipated execution violated the Eighth Amendment.

If that problem were not serious enough, Professor Chemerinsky explains an even more serious problem with the Court's ruling: "The Supreme Court had no authority under any statute or precedent to stop federal courts from issuing stays." The professor concluded that the high court was only interested in "mak[ing] sure the trains run on time." Accordingly, the Court refused to address the Eighth Amendment question.

An Impassioned Dissent

Justice Stevens (joined by Justice Blackmun) dissented. They believed that "the State's interest in an immediate execution must yield to a deliberate and careful study of the merits of Harris' claims."

They cited the "uncontroverted expert statements" submitted by Harris — including the eyewitness account of Arizona's execution of Don Eugene Harding two weeks earlier (quoted above) — as reason to halt the execution and address the constitutionality of the gas chamber.

The clinical facts, developed by medical experts, that Justices Stevens and Blackmun found compelling, and that provided, in their view, good reason to examine the constitutionality of such executions, are ghastly:

Following inhalation of cyanide gas, a person will first experience hypoxia, a condition defined as a lack of oxygen in the body. The hypoxic state can continue for several minutes after the cyanide gas is released in the execution chamber. During this time, a person will remain conscious and immediately may suffer extreme pain throughout his arms, shoulders, back, and chest. The sensation may be similar to pain felt by a person during a massive heart attack.

"Execution by gas . . . produces prolonged seizures, incontinence of stool and urine, salivation, vomiting, retching, ballistic writhing, flailing, twitching of extremities, [and] grimacing." This suffering lasts for 8 to 10 minutes, or longer.

Continuing Use of The Gas Chamber

Ironically, Harris's position proved sound — much too late to help Harris. In 1996, the Ninth Circuit held that use of the gas chamber was unconstitutional. The other two death row inmates who had joined Harris's lawsuit could be put to death only by lethal injection — unless they requested that the State use the gas chamber.

In 1994, Maryland ceased prescribing the gas chamber as the only means of execution. A year later, however, the Fourth Circuit Court of Appeals (the jurisdiction of which includes Maryland) reached a conclusion opposite to that of the Ninth Circuit, and found that gas chamber executions did not violate the Eighth Amendment.

Today, while lethal injection has become the executioner's principal technique, five states (Arizona, California, Maryland, Missouri, and Wyoming) still permit those seeking a painful execution to go to their gas chambers. The United States Supreme Court has simply ignored the constitutionality of gas chamber executions.

Indeed, for that matter, Supreme Court has still not rejected hangings (still available in Delaware, New Hampshire and Washington) or firing squads (available in Idaho, Oklahoma and Utah) as unconstitutional either. But next fall, the Court, at least, will decide if executing the mentally retarded is cruel and unusual punishment.

One of the better sites on executions American style is The Death Penalty Information Center. The more one learns on this subject, the more opposition to the penalty seems a moral necessity.

While death row inmates seldom evoke feelings of sympathy, every time I hear of another execution I think of Gandhi's observation that with "eye for eye" punishment ultimately everyone goes blind. Let's not go blind.


John W. Dean, a FindLaw columnist, is a former counsel to the President.

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