Hanging Constitutional, U.S. Court Rules : Executions: Appellate judges, divided by a 6-5 vote, reject claim of unusual punishment by man convicted of a Washington triple murder. Dissenting opinion calls it a relic of Dark Ages.
Execution by hanging is constitutional, a sharply divided federal appeals court ruled Tuesday in San Francisco.
By a 6-5 vote, the U.S. 9th Circuit Court of Appeals rejected the claim of Washington triple murderer Charles R. Campbell, whose lawyers argued that death by hanging constitutes cruel and unusual punishment in violation of the U.S. Constitution.
Hanging does not violate “contemporary standards of decency” or inflict unnecessary pain, according to the majority opinion. The state of Washington’s procedures for hanging have safeguards against decapitation or a slow death by strangling, wrote Circuit Judge Robert R. Beezer of Seattle for the majority.
“Campbell is not entitled to a painless execution, but only to one free of purposeful cruelty,” Beezer added.
The key question, the judge wrote, is whether a method of execution causes “wanton and unnecessary pain.”
Dissenting Judge Stephen Reinhardt of Los Angeles lashed out at the majority for preserving a method of execution from “the Dark Ages.” He also said the ruling “drastically curtails the scope and meaning” of the cruel and unusual punishment clause.
“In Anno Domini 1994, when almost every state and most other nations have rejected such a savage and barbaric method of killing its citizens, no court could in good conscience say that hanging comports with our ‘evolving standards of decency,’ ” Reinhardt wrote, alluding to the U.S. Supreme Court’s longstanding criterion for evaluating cruel and unusual punishment claims.
Although only Washington and Montana still permit hanging, the decision has broad ramifications in nine Western states, including California, because of the way it defines cruel and unusual punishment.
A similar challenge to California’s use of the gas chamber filed by the American Civil Liberties Union of Northern California is pending before U.S. District Judge Marilyn H. Patel in San Francisco. Last week, Patel said that the Campbell decision might give her some guidance in deciding that case.
Deputy California Atty. Gen. Dane Gillette said Tuesday that he believes the 9th Circuit’s decision in the Campbell case strengthens the state’s position that use of the gas chamber is constitutionally permissible. The passage on “unnecessary pain” in the case “sounds very much like the position we’ve taken,” Gillette said.
But ACLU attorney Michael Laurence said he thought the ruling was beneficial to those challenging the gas chamber, because the majority emphasized how quickly hanging works. “The reason the majority in Campbell can comfortably say hanging is not unconstitutional is because the standard they use is instantaneous unconsciousness,” Laurence said. “Even California Department of Corrections records show that consciousness in lethal gas executions ranges at a minimum from two to three minutes. That’s a far cry from the six to twelve seconds the majority in Campbell finds to be constitutional.”
Washington’s death penalty statute gives condemned inmates the choice of execution by hanging or lethal injection. If an inmate declines to choose a method, the statute provides that death will be by hanging.
The Campbell case has a long and stormy history. Now 39, Campbell was convicted of slashing the throats of two women and a child in Clearview, Wash., in 1982 and has been on Death Row since then. The women had testified in a 1976 trial in which Campbell was convicted of attacking and sodomizing one of them.
Campbell’s execution has been stayed because of appeals on numerous issues. The U.S. Supreme Court declined to review the case twice and in 1992 took the highly unusual step of criticizing the 9th Circuit for failing to resolve the case.
Campbell’s attorney, James E. Lobsenz, said he plans to file a writ with the Supreme Court, zeroing in on the punishment issue.
But Paul D. Weisser, assistant Washington attorney general, said he doubted that the high court would grant Campbell a hearing.
Lobsenz said his writ would emphasize the fact that all but two states have abandoned hanging as a means of execution.
Judge Beezer, writing for the appeals court majority, said that argument misses the point: “The number of states using hanging is evidence of public perception, but sheds no light on the actual pain that may or may not attend the practice. We cannot conclude that judicial hanging is incompatible with evolving standards of decency simply because few states continue the practice.”
Reinhardt said the majority was wrong on this point, saying, “Where nearly every state has abandoned a method of punishment, and they have done so precisely because they found it abhorrent and inhumane, we cannot but conclude that punishment is inconsistent with our standards of decency.”
In an appendix to his dissent, Reinhardt lists the years when states abandoned hanging, starting with Wisconsin in 1853 and most recently Delaware, New Hampshire and the U.S. military in 1986. California abandoned the practice in 1937.
“States have rejected hanging in favor of electrocution, lethal gas, lethal injection and even the firing squad. Although some of these methods may themselves be questioned as inhumane, the states have considered all of them to be more humane than hanging,” Reinhardt wrote.
“The majority of this . . . court has no business substituting its judgment for the clearly expressed view of nearly every state legislature in the nation,” Reinhardt wrote. “Under the Constitution, that consensus binds us.”
Beezer said scientific testimony, presented to federal trial Judge John R. Coughenour in Seattle showed that a hanging that adheres to proper procedures causes “rapid unconsciousness and death . . . within a matter of a few seconds.” Washington’s standards for the elasticity of the rope, the position of the knot and the length of the drop minimized the risk of strangling or decapitation, Beezer said.
He also said these conclusions were consistent with medical reports of Washington’s hanging of convicted killer Westley Allan Dodd in January, 1993. Dodd, one of only two people to be executed by hanging in the country in the past three decades, did not try to halt the execution.
But Reinhardt’s dissent said considerable testimony was presented in the lower court showing that “each time an individual is to be hanged there is a significant risk of decapitation or of a slow, lingering and painful death.”
He also said that reports of what occurred at the Dodd execution were suspect because the state had refused the request of Campbell’s attorneys that it be videotaped, and limited who could be in an attendance so that no independent expert was able to view the proceeding.
Moreover, Reinhardt wrote, Washington did not consult any medical experts for its procedures, but relied on a 1959 military manual. Beezer said evidence from other states was not comparable, but Reinhardt said that Washington’s methods did not differ much from those in other states where prisoners had been strangled or beheaded.
UCLA criminal law professor Peter Arenella said the decision showed a deep division within the 9th Circuit on cruel and unusual punishment.
Indeed, Reinhardt’s dissent was unusually critical of his colleagues.
“In a time when public fear of crime and violence is high, it may be understandable that some judges will on occasion close their eyes to the dictates of the Constitution, and employ whatever form of rationalization or self-deception will lead them to the result they deem expedient,” Reinhardt wrote in a dissent that quoted writers Brendan Behan, Albert Camus, Charles Dickens and lyrics of a Billie Holliday song about lynching.
“Here, however, there is not even any such excuse for the majority’s actions,” he said, castigating the majority for failing to even consider whether another method of execution would be less painful. “The issue before us is not whether Campbell will be executed, but only the method by which he will be put to death.”