The Supreme Court/The Supreme Court.iso/pc/ascii/1994/order/052694.zr

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SUPREME COURT OF THE UNITED STATES

CHARLES RODMAN CAMPBELL v. TANA WOOD,
SUPERINTENDENT, WASHINGTON STATE
PENITENTIARY, et al.
on petition for writ of certiorari to the united
states court of appeals for the ninth circuit
No. 93-8931 (A-901).  Decided May 26, 1994

  The application for stay of execution of sentence of
death scheduled for May 27, 1994, presented to Justice
O'Connor and by her referred to the Court is denied.
The petition for a writ of certiorari is denied.
  Justice Blackmun, dissenting.
  In 1853, hanging was the -nearly universal form of
execution- in the United States, State v. Frampton, ___
Wash. ___, ___, 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.  Petitioner Charles Rodman Campbell,
who is scheduled to be executed -by hanging by the
neck- in Washington this week, contends that his
hanging will constitute a cruel and unusual punishment.
I agree, and accordingly, even if I believed that the
death penalty could be applied constitutionally, see
Callins v. Collins, 510 U. S. ___ (1994) (Blackmun, J.,
dissenting), I would vote to grant the application for
stay and the petition for certiorari in this case.
  This Court has accepted that the Eighth Amendment's
prohibition against cruel and unusual punishments
-draw[s] its meaning from the evolving standards of
decency that mark the progress of a maturing society,-
Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality
opinion), and that the best evidence of these evolving
standards -is the legislation enacted by the country's
legislatures.-  Penry v. Lynaugh, 492 U. S. 302, 331
(1989); see also Stanford v. Kentucky, 492 U. S. 361, 370
(1989) (citations omitted) (-`[F]irst' among the `objective
indicia that reflect the public attitude toward a given
sanction' are statutes passed by society's elected repre-
sentatives-); Ford v. Wainwright, 477 U. S. 399, 408-410
(1986).  The public condemnation of hanging is over-
whelming.  Not only have 46 of the 48 States that once
regularly imposed hanging abandoned the practice, but
many state legislatures rejected the practice because it
was perceived as inhumane and barbaric, precisely the
concern that lies at the core of the Eighth Amendment.
See, e.g., Furman v. Georgia, 408 U. S. 238, 296-297
(1972) (Brennan, J., concurring) (-[S]ince the develop-
ment of the supposedly more humane methods- of lethal
gas and electrocution, -hanging and shooting have
virtually ceased-); Malloy v. South Carolina, 237 U. S.
180, 185 (1915) (noting that 11 states altered their
practice based on -a well-grounded belief that electrocu-
tion is less painful and more humane than hanging-).
But see Glass v. Louisiana, 471 U. S. 1080 (1985)
(Brennan, J., dissenting) (arguing that death by electro-
cution is cruel and unusual).  Even as the death
penalty's popularity has increased in recent years,
toleration for hanging has steadily declined.  Of the
eight States that provided for judicial hanging by the
time of the Furman decision, see 408 U. S., at 297, n.
50 (Brennan, J., concurring), all but two have abolished
it.  Today, the only three jurisdictions in the English-
speaking world that impose state-sponsored hangings are
Washington, Montana, and South Africa.  App. to Pet.
for Cert. A-38.
  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 U. S. 815 (1988) (invalidat-
ing capital punishment for offenders under age 16 where
almost two-thirds of state legislatures rejected the
practice); Enmund v. Florida, 458 U. S. 782 (1982)
(striking down the death penalty for vicarious felony
murders where only eight States still authorized the
punishment); Coker v. Georgia, 433 U. S. 584, 595-596
(1977) (abolishing the death penalty for rape where only
Georgia imposed death for rape of an adult and only
three States imposed the penalty for any rape), with
Stanford v. Kentucky, 492 U. S., at 371 (upholding the
death penalty for 16-year-olds since -a majority of
States that permit capital punishment authorize- the
practice).  If the Eighth Amendment represents anything
other than a prohibition against punishments that have
been entirely abolished, a punishment once universally
practiced and then abandoned specifically due to its
inhumanity must qualify as cruel and unusual.
  In a 6-5 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 proportional-
ity and the method of capital punishment.  To the
contrary, we have suggested that -[a] penalty must also
accord with the `the dignity of man,' which is the `basic
concept underlying the Eighth Amendment,'- Gregg v.
Georgia, 428 U. S. 153, 173 (1976) (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 mutila-
tion also violate the Eighth Amendment.  Wilkerson v.
Utah, 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., dissenting),
quoting Gardner, Executions and Indignities - An
Eighth Amendment Assessment of Methods of Inflicting
Capital Punishment, 39 Ohio St. L. J. 96, 120 (1978).
Hanging, however, is a crude and imprecise practice,
which always includes a risk that the inmate will slowly
strangulate or asphyxiate, if the rope is too elastic or
too short, or will be decapitated, if the rope is too taut
or too long.  A veteran prison warden has described a
typical hanging:
-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., dissent-
ing), quoting Gardner, supra, at 11.
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., at 173 (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
verbatim from a 1959 military execution manual that
never has been used in any hanging, and that is almost
indistinguishable from hanging procedures that resulted
in torturous deaths and mutilations in the past.  See id.,
at A-50, and n. 31 (Reinhardt, J., dissenting).  Experts
for both parties who testified before the District Court
agreed that hanging always includes a risk that uncon-
sciousness and death will not be instantaneous, and
admitted that a certain number of Washington's hang-
ings inevitably will result in death by decapitation.  The
State presented no evidence that Washington's protocol
will significantly reduce the risk of asphyxiation or
decapitation, and Campbell introduced unrefuted testimo-
ny that the protocol actually may increase the likelihood
that an inmate's head will be torn off.  The evidence in
the record is uncontested, therefore, that Washington's
hangings will suffer the inevitable failings that led all
but one other State to abandon hanging as a means of
execution.
  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 Ameri-
ca, hanging is cruel and unusual punishment.  I dissent.
  Justice Stevens and Justice Ginsburg would grant
the application for stay of execution of sentence of death.