Judge Bars Use of Gas Chamber in Executions

Possibly putting the death penalty on hold in California, a federal judge in San Francisco declared Tuesday that the state’s gas chamber “is inhumane and has no place in civilized society,” and deemed it unconstitutional.

If upheld, the ruling by U.S. District Judge Marilyn Hall Patel would require the state to execute prisoners solely by lethal injection, a method added as an option by state law in 1992.

Patel’s ruling was the first in which a federal judge has ruled that the gas chamber violates the 8th Amendment ban on cruel and unusual punishment. Gov. Pete Wilson and Atty. Gen. Dan Lungren denounced the ruling and vowed to appeal. In a statement issued through a spokesman, Treasurer Kathleen Brown, who is running for governor against Wilson, agreed that the ruling should be appealed.

The decision does nothing to overturn the death sentences of the 382 men on San Quentin’s Death Row, and the five women condemned to death in California.

At a news conference in Sacramento, Lungren said that no executions are scheduled in the state, and that none will take place until appellate courts consider Patel’s ruling.

Signed into law by Wilson, the 1992 statute authorizing lethal injection said that if inmates refuse to choose, they will be executed by gas. But with Patel’s ruling that the gas chamber is unconstitutional, Lungren said the issue must be resolved before other executions can take place.

“It very well could put it (the death penalty) on hold,” Lungren said. “It means we can’t carry out the death penalty by lethal gas. We will argue that executions can be carried out by lethal injection.”

The governor cited Patel’s findings that the gas chamber is inhumane, and has “no place in a civilized society,” and said: “Killers have no place in the civilized society of California. . . . I will do everything in my power to see to it that the people of California remain protected by the death penalty.

“Fortunately for the protection of the people of California, lethal injection remains available as a means of carrying out the death penalty.”

Patel’s ruling stemmed from a lawsuit filed by the American Civil Liberties Union to block the April, 1992, execution of double murderer Robert Alton Harris. Although Harris was executed, the ACLU pressed on with the lawsuit on behalf of other Death Row inmates.

“We never claimed that it would empty Death Row. We have prevented the state of California from torturing people to death in the gas chamber, which is certainly the ACLU’s mission,” said Michael Lawrence, the ACLU attorney who engineered the lawsuit.

In her ruling, Patel found that prisoners put to death in the gas chamber suffer intense pain, despite the state’s assertions that cyanide gas causes virtually instant unconsciousness. She said the primary cause of the pain is suffocation, experienced as an intense “air hunger” similar to strangulation or drowning.

“Symptoms of air hunger include intense chest pains, such as felt during a heart attack, acute anxiety, and struggling to breathe,” Patel said, adding that there also may be other types of pain, including “exquisitely painful muscle spasms.”

California is one of 37 states with the death penalty. Only five still use the gas chamber, and all of those have lethal injection as an alternative. North Carolina was the last state to use the gas chamber, putting an inmate to death this year.

“Our society no longer considers lethal gas an acceptable means by which to execute a person,” the judge wrote. “There is a societal consensus that this method of execution is inhumane and has no place in civilized society.”

The U.S. 9th Circuit Court of Appeals, which handles federal appeals from California and other western states, this year rejected a similar challenge to execution by hanging in Washington state.

But Patel said the evidence of conscious pain in a gas chamber execution was greater than the evidence presented on behalf of the Washington prisoner who was executed in May.

In the final weekend before Harris’ execution, Patel issued a stay based on the lawsuit, finding that there was a likelihood that she would rule that lethal gas was cruel and unusual.

That stay opened the way for extraordinary maneuvering by members of the 9th Circuit in the hours before Harris’ execution. At one point, 10 judges of the appeals court signed an order siding with Patel and blocking the execution. One of those 10 issued a second stay on the same grounds. Court of Appeals Judge Harry Pregerson issued a final stay as Harris sat strapped in the gas chamber.

In the meantime, deputy attorneys general were filing appeals, culminating in an unprecedented decision by the U.S. Supreme Court to strip the 9th Circuit of its authority over the Harris case. He was put in the gas chamber 15 minutes later.

Patel held a trial on the gas chamber issue last year and Lawrence brought in expert witnesses who said in great detail that condemned inmates suffered excruciating pain.

California’s gas chamber, an airtight octagonal device painted in an off-green, was built in the 1930s by a firm in Denver, and designed to be a humane alternative to hanging--the method of execution in favor at the time.

Daniel Vasquez, former San Quentin warden, carried out the Harris execution and the one last year of murderer David Mason, the last person executed in California.

“I have seen two men die very quickly,” Vasquez said in an interview Tuesday. “I have seen two men go unconscious within seconds. I was there to see it and I saw a very quick death.”

Times staff writer Jerry Gillam in Sacramento and researcher Norma Kaufman in San Francisco contributed to this story.