No. 81-4018.
Sept. 3, 1982.
Appeal from the United States
District Court for the Southern District of Mississippi.
(677 F.2d 1086 (5th Cir. 1982))
Before CLARK, Chief Judge,
THORNBERRY and GARZA, Circuit Judges.
(10) On June 22, 1983 petitioner submitted to the
Mississippi Supreme Court a second motion for stay of execution
along with a new application for a writ of error coram nobis. The
petition raised, among others, those claims now before this Court.
The Mississippi Supreme Court denied all requested relief on June
29, 1983. (11) Petitioner thereupon filed his second petition for a
writ of habeas corpus in the federal district court, reasserting
those claims he had submitted to the Mississippi Supreme Court .
(12) On July 2, 1983, the court of appeals granted petitioner's
application for a stay of execution. (13) The district court
dismissed the petition for habeas corpus on July 8, 1983. (14) The
court of appeals affirmed and denied petitioner's petition for
rehearing. The stay was dissolved on August 26, 1983.
This case has been in state and federal courts
for seven years. It has been tried twice in the state court and
reviewed by the Mississippi Supreme Court four times. Seventeen
different federal judges have reviewed petitioner's case, and this
Court has previously acted on this case four times prior to Justice
WHITE's denial of petitioner's application for a stay last week.
Over the past seven years, judicial action reviewing this case has
been taken 82 times by 26 different state and federal judges.
Petitioner's latest claims have been reviewed by
several courts in both the state and federal systems. Petitioner's
principal claim, which Justice MARSHALL addresses in his dissent, is
that the lethal gas method of execution constitutes cruel and
unusual punishment in violation of the Eighth and Fourteenth
Amendments. In my view, no evidentiary hearing on the effects of
lethal gas is required. A number of affidavits describing such
effects were filed with and considered by the Court of Appeals, and
the contents of several of these have been set forth in the dissent
today of Justice MARSHALL. For purposes of my vote in this case, I
accept the truth of the affidavits submitted by the petitioner, but
nevertheless conclude-as did the Court of Appeals-that they do not
as a matter of law establish an Eighth Amendment violation. I agree
with the Court of Appeals that the showing made by petitioner does
not justify a court holding "that, as a matter of law or fact, the
pain and terror resulting from death by cyanide is so different in
degree or nature from that resulting from other traditional modes of
execution as to implicate the eighth amendment right ." Gray v.
Lucas, 710 F.2d 1048, 1061 (CA5 1983).
This case illustrates a recent pattern of
calculated efforts to frustrate valid judgments after painstaking
judicial review over a number of years; at some point there must be
finality. I join the Court's action denying the petition for
certiorari and denying a stay of execution.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
In this application for a stay, petitioner
requests simply that we postpone his execution long enough to allow
us to consider and dispose of his pending petition for certiorari to
the decision of the United States Court of Appeals for the Fifth
Circuit affirming the denial of a writ of habeas corpus. Gray v.
Lucas, 710 F.2d 1048 (1983). I would grant the application.
*****
Petitioner argues that the method by which the
state of Mississippi plans to execute him-exposure to cyanide gas-constitutes
cruel and unusual punishment. In support of that claim, he submitted
to the United States District Court for the Southern District of
Mississippi numerous affidavits that described in graphic and
horrifying detail the manner in which death is induced through this
procedure. Gray v. Lucas, No. S83-0546(C) (July 8, 1983). For
example, Dr. Richard Traystman, Director of the Anesthesiology and
Critical Care Medicine Research Laboratories at Johns Hopkins
Medical School, described the process as follows:
"Very simply, cyanide gas blocks the utilization
of the oxygen in the body's cells. ... Gradually, depending on the
rate and volume of inspiration, and on the concentration of the
cyanide that is inhaled, the person exposed to cyanide gas will
become anoxic. This is a condition defined by no oxygen. Death will
follow through asphyxiation, when the heart and brain cease to
receive oxygen.
"The hypoxic state can continue for several
minutes after the cyanide gas is released in the execution chamber.
The person exposed to this gas remains conscious for a period of
time, in some cases for several minutes, again depending on the rate
and volume of the gas that is inhaled. During this time, the person
is unquestionably experiencing pain and extreme anxiety. The pain
begins immediately, and is felt in the arms, shoulders, back, and
chest. The sensation is similar to the pain felt by a person during
a heart attack, where essentially, the heart is being deprived of
oxygen. The severity of the pain varies directly with the
diminishing oxygen reaching the tissues.
"The agitation and anxiety a person experiences
in the hypoxic state will stimulate the autonomic nervous system. .
. . [The person ] . . . may begin to drool, urinate, defecate, or
vomit. There will be a muscular contraction[ ]. These responses can
occur both while the person is conscious, or when he becomes
unconscious.
"When the anoxia sets in, the brain remains alive
for from two to five minutes. The heart will continue to beat for a
period of time after that, perhaps five to seven minutes, or longer,
though at a very low cardiac output. Death can occur ten to twelve
minutes after the gas is released in the chamber." Gray v. Lucas,
710 F.2d at 1060.
Dr. Traystman further testified that the lethal-gas
method is sufficiently painful that it is disfavored in the
scientific community as a way of putting animals to sleep. "We would
not use asphyxiation, by cyanide gas or by any other substance, in
our laboratory to kill animals that have been used in experiments-nor
would most medical research laboratories in this country use it."
Ibid.
Other affiants described in less clinical
language the effects of the procedure when used to execute people:
"When the cyanide gas reached [the prisoner], he
gasped, and convulsed strenuously. He stiffened. His head lurched
back. His eyes widened, and he strained as much as the straps that
held him to the chair would allow. He unquestionably appeared to be
in pain.
"Periodically now, perhaps at thirty second
intervals, he would convulse, alternately straining and relaxing in
the chair. I noticed he had urinated. The convulsions continued for
approximately ten more minutes, and you could see his chest expand,
and then contract, trying to take in fresh air. These movements
became weaker as the minutes ticked away. You could not tell when
[he] finally lost consciousness.
"According to prison officials, [he] died . . .
approximately 12 minutes after the cyanide pellets had dropped in
the chamber. Death was pronounced after the shade on our observation
window had been drawn, though there was still some slight movement
in the body. Id., at 1058-1059. "The pellets of cyanide were
released by mechanical controls, and dropped into an acid jar
beneath the chair. The gas rose, and seemed to hit him immediately.
Within the first minute, [he] slumped down. I thought to myself how
quickly cyanide really worked. "Within 30 seconds he lifted his head
upwards again. He raised his entire body, arching, tugging at his
straps. Saliva was oozing from his mouth. His eyes open, he turned
his head to the right. He gazed through my window. His fingers were
tightly gripping his thumbs. His chest was visibly heaving in
sickening agony. Then he tilted his head higher, and rolled his eyes
upward. Then he slumped forward. Still his heart was beating. It
continued for another several minutes. "He was pronounced dead,
twelve minutes after the pellets were released, by the doctor who
could hear his heart through the stethoscope, die." Id., at
1058-1059.
The Court of Appeals accepted 3 petitioner's "proffered
facts as proven." Id., at 1061. Specifically, the court adopted
petitioner's description of the method of execution as that of "death
by cyanide gas, causing asphyxiation at the cost of protracted pain
over a period that may exceed seven minutes." Ibid. The court
refused, nevertheless, to reverse the District Court's decision
denying petitioner an evidentiary hearing, reasoning that, "under
present jurisprudential standards," petitioner's allegations were
insufficient "to implicate the eighth amendment right." Ibid.
In my view, if the lethal-gas method operates in
the manner described by petitioner, the Court of Appeals clearly
erred in ruling that the method is not "cruel" under "present
jurisprudential standards." The Eighth Amendment proscribes "punishments
which are incompatible with 'the evolving standards of decency that
mark the progress of a maturing society.' " Estelle v. Gamble, 429
U.S. 97, 102 , 290 ( 1976) (quoting Trop v. Dulles, 356 U.S. 86, 101
, 598d 630 (1958)).
Identification of those standards is sometimes
difficult, but two principles have long been beyond dispute. First,
"[p]unishments are cruel when they involve torture or a lingering
death." In re Kemmler, 136 U.S. 436, 447 , 933 (1890). Second,
punishments are cruel when they "involve the unnecessary and wanton
infliction of pain." Gregg v. Georgia, 428 U.S. 153, 173 , 2925
(1976). A corollary of the second principle is that " no court would
approve any method of implementation of the death sentence found to
involve unnecessary cruelty in the light of presently available
alternatives." Furman v. Georgia, 408 U.S. 238, 430 , 2824 (1972) (POWELL,
J., joined by BURGER, C.J., and BLACKMUN and REHNQUIST, JJ.,
dissenting); see also id., at 279, 92 S.Ct. at 2747 (BRENNAN, J.,
concurring).
The Court of Appeals failed to apply either of
the foregoing principles to the case before it. Instead, the court
attempted to assess the "pain and terror" associated with "traditional
modes of execution" ( such as hanging) and concluded that the
difference between the trauma associated with the use of lethal gas
and the trauma associated with those traditional methods was not so
great as to render the former constitutionally infirm. Gray v.
Lucas, supra, at 1061.
Had the court made an effort to apply the proper
legal standards, it seems highly likely that it would have found the
lethal-gas method to be unconstitutional. A death that, as the court
recognized, involves extreme pain over a span of 10 to 12 minutes
surely must be characterized as "lingering," see In re Kemmler,
supra. And petitioner directed the court's attention to at least one
readily available alternative method of administering the death
penalty that, though equally barbaric in its effects, involves far
less physical pain than the use of cyanide gas; 4 it seems
indisputable, therefore, that the lethal-gas method is "unnecessarily
cruel."
That execution through the administration of
lethal gas violates the Eighth amendment is confirmed by examination
of the treatment accorded the method in recent years by the state
legislatures. This Court has often indicated that assessment of the
constitutional status of a given punishment " 'should be informed by
objective factors to the maximum possible extent.' " Enmund v.
Florida, 457 U.S. ___, ___, 3372 (1982) (quoting Coker v. Georgia,
433 U.S. 584, 592 , 2866 (1977) (plurality opinion)).
Among the most important of those factors is the
direction in which contemporary "legislative judgments" are moving.
Enmund v. Florida, supra. Between 1921 and 1973, several states by
statute adopted the lethal gas method. In most instances, the
abandonment of the scaffold or electric chair in favor of the gas
chamber was prompted by humanitarian motives; asphyxiation was
regarded as a less painful and more dignified way of administering
the death penalty than hanging or electrocution. However, as
awareness of the trauma associated with the lethal-gas method grew
and as the lethal-injection method became better known, the trend
was reversed.
In the past decade, no state has adopted the
lethal-gas method. By contrast, three states that formerly employed
the gas chamber exclusively have altered their laws to require or
permit use of the injection procedure. At least two other states
that never had used the gas chamber considered adopting the method
but rejected it in favor of the injection system. At present, only
seven of the 39 jurisdictions that retain the death penalty require
use of the gas chamber. This evolving consensus against compulsory
use of the lethal-gas method buttresses the conclusion that the
procedure must now be considered "cruel."
Under these circumstances, the majority's
decision to deny the stay, thereby authorizing the execution of
petitioner before we can even consider his petition for certiorari,
seems to me unconscionable. Petitioner has presented a substantial
challenge to the constitutionality of Mississippi's method of
execution. The Court of Appeals has denied petitioner a hearing to
develop his claim. Townsend v. Sain, 372 U.S. 293 (1963). Yet a
majority of this Court declines to delay petitioner's execution a
few more weeks until we can consider through our traditional means
of deliberation whether this case raises issues of sufficient import
to grant a writ of certiorari.
I dissent from the denial of the stay.
Justice STEVENS would grant the application for
stay.
