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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO GILBERT RUIZ; and
ROBERT ALTON HARRIS, as
individuals and on behalf of -- OPINION --
themselves and all others
JAMES GOMEZ, as an individual
and in his capacity as Director,
California Department of Corrections;
and ARTHUR CALDERON, as an individual,
and in his capacity as Warden of
San Quentin Prison,
D.C. No. CV-92-01482-MHP
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, District Judge, Presiding
Argued and Submitted December 5, 1995--San Francisco, California
Before: Harry Pregerson, Melvin Brunetti, and Thomas G. Nelson, Circuit
Counsel: Michael Laurence, American Civil Liberties Union Foundation of
Northern California, Inc., San Francisco, California, and Warren E. George,
McCutchen, Doyle, Brown & Enerson, San Francisco, California, attorneys for
Dane R. Gillette, Deputy Attorney General, San Francisco, California,
attorney for the defendants-appellants.
Filed February 21, 1996
PREGERSON, Circuit Judge:
Plaintiffs, three California inmates sentenced to death, brought this
action under 42 U.S.C. section 1983. The inmates alleged that California's
method of execution, lethal gas, constitutes cruel and unusual punishment
and thus violates the Eighth and Fourteenth Amendments of the federal
Constitution. The United States District Court for the Northern District of
California held that, to the extent that the statute provides for execution
by lethal gas, it is cruel and unusual punishment. Defendants James Gomez,
Director of the California Department of Corrections, and Arthur Calderon,
Warden of San Quentin Prison, now appeal that decision. Defendants also
appeal the district court's permanent injunction against the use of lethal
gas as a method of execution. We have jurisdiction under 28 U.S.C. section
1291. We affirm.
On April 17, 1992, plaintiffs David Fierro, Alejandro Gilbert Ruiz, and
Robert Alton Harris, California inmates sentenced to death, filed this suit
on behalf of themselves and all others similarly situated. Fierro v. Gomez,
790 F.Supp. 966 (N.D. Cal. 1992) ("Fierro I"). Harris was scheduled to be
executed in California's gas chamber on April 21, 1992, four days later.
The inmates sought relief under 42 U.S.C. section 1983, alleging that
California's method of execution statute, Cal. Penal Code section 3604,
violates the Eighth and Fourteenth Amendments to the United States
Constitution. Defendants opposed the suit, alleging that the district court
did not have jurisdiction under section 1983. Defendants argued that a
challenge to the method by which an inmate will be executed must be brought
as a petition for writ of habeas corpus rather than as a section 1983 civil
rights action. Fierro I, 790 F.Supp. at 968. The district court held that
it had jurisdiction under section 1983 because plaintiffs were not
challenging the fact or duration of their sentences and were therefore not
required to bring their claims as habeas petitions. Id.
The district court granted plaintiffs' motion for a temporary restraining
order ("TRO") enjoining defendants from executing any California death row
inmate by means of lethal gas. Fierro I, 790 F.Supp. at 7. The court found
that there existed serious questions going to the merits and that an
evidentiary hearing was necessary. Id. at 970-71.
Defendants appealed to this court and we vacated the district court's TRO.
Gomez v. United States Dist. Court, No. 92-70237, 1992 U.S. App. LEXIS 7031
(9th Cir. Apr. 20, 1992), vacated as moot and withdrawn, 966 F.2d 463 (9th
Cir. May 5, 1992). At least three stays were subsequently entered by this
court and then vacated by the U.S. Supreme Court. See Gomez v. Vasquez, No.
92-55426 (9th Cir., Apr. 20, 1992), vacated by Vasquez v. Harris, 503 U.S.
1000 (1992) (No. A-766); Gomez v. United States Dist. Court, 503 U.S. 653
(1992) (No. A-767); Vasquez v. Harris, No. 92-70237 (9th Cir., Apr. 21,
1992), vacated by Vasquez v. Harris, 503 U.S. 1000 (1992) (No. A-768).
Harris also filed a petition for writ of habeas corpus with the California
Supreme Court on April 21, 1992. This petition challenged the
constitutionality of execution by lethal gas under both the federal and
California constitutions. The California Supreme Court, in an unpublished
decision with one justice dissenting, denied the case "on the merits." In
re Robert Alton Harris, No. S026235 (Cal. Sup. Ct. 1992) (in bank). The
court offered no new analysis for its conclusion, merely citing to its own
previous decisions and those of other courts finding execution by lethal
gas to be constitutional.[FN 1] Id. at 1. The court also emphasized
the "last minute" nature of Harris's claim, id. at 1-2, as did the U.S.
Supreme Court, Gomez v. United States Dist. Court, 503 U.S. at 654.
Harris was executed in San Quentin's gas chamber shortly after 6:00 a.m. on
April 21, 1992. Plaintiffs Fierro and Ruiz remain on California's death
When California executed Harris, the state's sole method of execution was
the "administration of a lethal gas." Cal. Penal Code section 3604 (West
1982). Soon after Harris's execution, in response to this case, the
California Legislature amended section 3604 by adding lethal injection as
an alternative means of execution. Cal. Stats. 1992, c.558. The amended
statute provides for execution by lethal gas unless an inmate affirmatively
chooses lethal injection and "if either manner of execution . . . is held
invalid, the punishment of death shall be imposed by the alternative
means." Cal. Penal Code section 3604 (West Supp. 1995).
In October and November 1993, the district court held an eight-day bench
trial on the original section 1983 action. Fierro v. Gomez, 865 F.Supp.
1387, 1389 (N.D. Cal. 1994) ("Fierro II"). Soon after the trial but before
the district court issued its decision, an en banc panel of this court held
constitutional the State of Washington's protocol for execution by hanging.
Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994) (en banc), cert. denied, 114
S.Ct. 2125 (1994). The district court then ordered the Fierro parties to
file supplementary briefs addressing the impact of Campbell on the Fierro
case. The district court published its decision in October 1994. Fierro II,
865 F.Supp. 1387.
In Fierro II, the district court found that "California Penal Code section
3604, to the extent that it requires or permits the imposition of death by
administration of lethal gas, violates the eighth and fourteenth amendments
of the United States Constitution." 865 F.Supp. at 1415. The court enjoined
defendants from using lethal gas to execute either of the two remaining
plaintiffs or any other California death row inmate. Id.
A. Section 1983.
1. Standard of Review.
The district court's conclusions of law are reviewed de novo. Price v.
United States Navy, 39 F.3d 1011, 1021 (9th Cir. 1994). We thus review de
novo whether the district court was correct in concluding that a challenge
to a method of execution may be brought as a section 1983 civil rights
Section 1983 provides the statutory authorization for most federal court
suits against local governments or state and local government officials to
redress violations of federal civil rights. To bring a section 1983 action,
a plaintiff must allege (1) a violation of a right secured by the
Constitution or federal law, and (2) that this right was violated by
someone acting under color of state law. 42 U.S.C. section 1983; Fierro I,
790 F.Supp. at 967. Challenges to prison conditions ("conditions of
confinement") are often brought as section 1983 actions. See, e.g., Rhodes
v. Chapman, 452 U.S. 337, 340 (1981) (allowing Eighth Amendment challenge
to a prison's practice of "double celling" to be brought under section
1983); Hutto v. Finney, 437 U.S. 678, 685 (1978) (allowing Eighth Amendment
challenge to conditions of confinement to be brought under section 1983).
In contrast, an inmate must challenge the constitutionality of his
conviction or sentence by means of a petition for writ of habeas corpus.
Preiser v. Rodriguez, 411 U.S. 475, 489-90 (1973). The habeas statute
The Supreme Court, a Justice thereof, a circuit judge, or a district court
shall entertain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court only on the
grounds that he is in custody in violation of the constitution or laws or
treaties of the United States.
28 U.S.C. section 2254. Habeas corpus's "traditional purpose" is to allow
an inmate seeking "immediate or more speedy release" to challenge his
confinement. Preiser, 411 U.S. at 494.
Here, the district court found that plaintiffs Fierro, Ruiz, and Harris
could properly bring their claims under section 1983.[FN 2] Fierro I,
790 F.Supp. at 967. The court reasoned that plaintiffs sought "review of
the method by which their sentence will be carried out" rather than review
of the fact that they were sentenced to death. In addition, the court held
Since plaintiffs' claim does not, and could not, challenge the fact or
duration of sentence, it need not be brought as a habeas claim. To hold
otherwise would carve out of habeas and section 1983 law a separate
jurisprudence for death penalty cases. There is no authority for such a
dichotomy. Id. at 968.
The court noted that several method of execution challenges have been
brought under section 1983. Fierro I, 790 F.Supp. at 969. In one of these
cases, the Eleventh Circuit specifically found section 1983 appropriate for
a method of execution challenge. Sullivan v. Dugger, 721 F.2d 719, 720
(11th Cir. 1983) (holding that section 1983 is appropriate when an inmate
challenges the method by which he is to be executed rather than "the fact
or nature of his sentence or the state's right to execute him").
Defendants contend that the district court erred in allowing plaintiffs to
bring a challenge to the constitutionality of execution by lethal gas as a
section 1983 claim. Defendants argue that section 1983 and habeas are
mutually exclusive remedies and that a habeas petition is the sole means by
which a death row inmate may challenge the method by which he is to be
executed. Defendants rely on Preiser, 411 U.S. 475, to support their
argument that habeas and section 1983 are mutually exclusive. Preiser,
however, noted only that habeas was the exclusive remedy when an inmate
challenged "the very fact or duration of his physical imprisonment." 411
U.S. at 500. See also Heck v. Humphrey, ___ U.S. ___, 114 S.Ct. 2364, 2369
(1994) (stating that Preiser held that "habeas corpus is the exclusive
remedy for a state prisoner who challenges the fact or duration of his
confinement and seeks immediate or speedier release, even though such a
claim may come within the literal terms of section 1983").
Defendants also cite method of execution challenges brought as habeas
petitions to support their argument that habeas is the sole means by which
an inmate may challenge the method by which he is to be executed. In
particular, defendants rely on this court's recent en banc decision in
which the majority opinion held that Washington's protocol for execution by
hanging did not constitute cruel and unusual punishment. Campbell v. Wood,
18 F.3d 662 (9th Cir. 1994), cert. denied, 114 S.Ct. 2125 (1994).
No court, however, has held that method of execution challenges must be
brought as habeas petitions rather than section 1983 actions. In fact, a
federal court may construe a section 1983 action as a habeas petition,
Franklin v. Oregon, 662 F.2d 1337, 1347 & n.13 (9th Cir. 1981), or a habeas
petition as a section 1983 action, Wilwording v. Swenson, 404 U.S. 249, 251
(1971) (per curiam).[FN 3] In addition, as defendants acknowledge, at
least two circuits have allowed method of execution challenges to be
brought as section 1983 claims. See Ingram v. Ault, 50 F.3d 898, 899 (11th
Cir. 1995); O'Bryan v. McKaskle, 729 F.2d 991, 992-93 & n.1 (5th Cir.
1984); Sullivan v. Dugger, 721 F.2d 719, 720 (11th Cir. 1983).
Defendants cite no authority for their claim that allowing plaintiffs to
pursue their method of execution challenge would result in reductions in
their sentences. Indeed, the current California method of execution statute
provides that, if lethal gas "is held invalid, the punishment of death
shall be imposed by the alternative means," lethal injection. Cal. Penal
Code section 3604 (West Supp. 1995). Thus, regardless of whether we
conclude that the district court was correct in finding execution by lethal
gas unconstitutional, plaintiffs' sentences of death remain unaffected.
Section 1983 actions, unlike habeas petitions, do not have a state
exhaustion requirement. See Monroe v. Pape, 365 U.S. 167, 183 (1961)
(stating that, with a section 1983 action alleging a constitutional
violation, "the federal remedy is supplementary to the state remedy and the
latter need not be first sought and refused before the federal one is
invoked"). Defendants cite the exhaustion requirement to support their
argument that plaintiffs must challenge their executions by lethal gas by
habeas petition rather than as a section 1983 claim. This, however, does
not affect our analysis.
There is no authority to support defendants' assertion that habeas is the
exclusive means by which to challenge a method of execution. Method of
execution challenges are analogous to challenges to conditions of
confinement. If an inmate challenges a condition of confinement as a
violation of the Eighth Amendment's prohibition on cruel and unusual
punishment, he may bring that challenge as a section 1983 action. There is
no authority for treating the present case any differently. As stated by
the district court, "[t]o hold otherwise would carve out of habeas and
section 1983 law a separate jurisprudence for death penalty cases." Fierro
I, 790 F.Supp. at 968.
Our court has defined the appropriate situation in which to seek habeas
relief as "whenever the requested relief requires as its predicate a
determination that a sentence currently being served is invalid or
unconstitutionally long." Young v. Kenny, 907 F.2d 874, 876 (9th Cir.
1990), cert. denied, 498 U.S. 1126 (1991). Plaintiffs here do not allege
that their sentences are invalid. Nor do they allege that their sentences
are unconstitutionally long. They seek only to prevent their executions by
lethal gas. We therefore follow our sister circuits and hold that a
challenge to a method of execution may be brought as a section 1983 action.
In sum, a challenge to the method by which an inmate sentenced to death
will be executed may be brought pursuant to section 1983. The district
court was correct in allowing plaintiffs to pursue their claims under
B. Cruel and Unusual Punishment.
1. Standard of Review.
Following a bench trial, the judge's "[f]indings of fact, whether based on
oral or documentary evidence, shall not be set aside unless clearly
erroneous." Fed. R. Civ. P. 52(a); Saltarelli v. Bob Baker Group Medical
Trust, 35 F.3d 382, 385 (9th Cir. 1994). "Review under the clearly
erroneous standard is significantly deferential, requiring a definite and
firm conviction that a mistake has been committed." Exxon Co. v. Sofec
Inc., 54 F.3d 570, 576 (9th Cir. 1995), cert. granted, 116 S.Ct. 493 (1995)
(quoting Concrete Pipe & Prods. of Cal., Inc. v. Construction Laborers
Pension Trust for S. Cal., ___ U.S. ___, 113 S.Ct. 2264, 2280 (1993)). The
district court's conclusions of law and the ultimate question of the
constitutionality of California's method of execution statute are reviewed
de novo. Destination Ventures, Ltd. v. FCC, 46 F.3d 54, 55 (9th Cir. 1995);
National Ass'n of Radiation Survivors v. Derwinski, 994 F.2d 583, 587 (9th
Cir. 1992), cert. denied, 114 S.Ct. 634 (1993).
The Eighth Amendment prohibits governmental imposition of "cruel and
unusual punishments," U.S. Const. amend. VIII, and bars "infliction of
unnecessary pain in the execution of the death sentence," Louisiana ex rel.
Francis v. Resweber, 329 U.S. 459, 464 (1947) (plurality opinion).
"Punishments are deemed cruel when they involve torture or a lingering
death . . . ." In re Kemmler, 136 U.S. 436, 447 (1890). The meaning of
"cruel and unusual" must be interpreted in a "flexible and dynamic manner,"
Gregg v. Georgia, 428 U.S. 153, 171 (1976) (joint opinion), and measured
against "the evolving standards of decency that mark the progress of a
maturing society," Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality
Although this court has never addressed whether execution by lethal gas is
cruel and unusual punishment, we recently applied Eighth Amendment
standards to execution by hanging. Campbell v. Wood, 18 F.3d 662 (9th Cir.
Feb. 8, 1994) (en banc), cert. denied, 114 S.Ct. 2125 (1994). The en banc
majority opinion in Campbell held that hanging, when conducted according to
Washington State's detailed protocol, did not constitute cruel and unusual
In Campbell we stated that, when analyzing a method of execution, as
opposed to the proportionality of a punishment to a particular crime,
judicial review "focuses more heavily on the objective evidence of the pain
involved in the challenged method." 18 F.3d at 682. We concluded in
Campbell that it was not necessary to analyze legislative trends because
unconsciousness and death by hanging, performed in accordance with
Washington's protocol, was quick and thus did not inflict an
unconstitutional amount of pain. See id. at 682-83. We affirmed the
district court's factual findings, summarizing them as follows:
[T]he mechanisms involved in bringing about unconsciousness and death in
judicial hanging occur extremely rapidly, . . . unconsciousness was likely
to be immediate or within a matter of seconds, and . . . death would follow
rapidly thereafter. The . . . risk of death by decapitation was negligible,
and . . . hanging according to the protocol does not involve lingering
death, mutilation, or the unnecessary and wanton infliction of pain.
Id. at 687.
In Fierro II, the district court correctly determined the framework under
which the constitutionality of execution by lethal gas must be evaluated:
First, the key question to be answered in a challenge to a method of
execution is how much pain the inmate suffers. . . . Death where
unconsciousness is likely to be immediate or within a matter of seconds is
apparently within constitutional limits. While the Campbell court did not
pinpoint a threshold at which the time to unconsciousness and the
corresponding pain would violate the Constitution, the court implied that
the persistence of consciousness for over a minute or for between a minute
and a minute-and-a-half, but no longer than two minutes might be outside
Campbell also made clear that the method of execution must be considered in
terms of the risk of pain. The Campbell court determined that under the
Washington hanging protocol, the risk of a prolonged and agonizing death by
asphyxiation or decapitation was negligible.
Fierro II, 865 F.Supp. at 1410-11 (footnotes, citations, and internal
In the present case, the district court held an eight-day bench trial.
Fierro II, 865 F.Supp. at 1389. The court heard testimony from several
expert medical witnesses and reviewed scientific literature regarding the
effect of cyanide gas inhalation on humans and animals. Id. at 1393-1400.
The court also reviewed official San Quentin Prison execution records.
These records were compiled by medical personnel while attending executions
performed at San Quentin between 1937 and 1994. Id. at 1400-03. Other
evidence considered by the court included eyewitness accounts of executions
from media representatives and from friends and relatives of the executed
inmates. Id. at 1401. The court found most probative the testimony of
plaintiffs' experts, the responses of defendants' expert witnesses during
cross-examination, and the official execution records. Id. at 1403-04. The
court also noted that the execution records of Robert Harris and David
Mason, executed in 1992 and 1993 respectively, were "the most probative
evidence of pain and consciousness experienced" by those inmates executed
in San Quentin's gas chamber "because these executions were conducted in
accordance with the challenged protocol." Id. at 1401.
The execution records provided information regarding the exact time that
certain events occur during the execution process. These events include the
time that cyanide is released into the gas chamber, the time that the gas
first strikes an inmate's face, the time that an inmate lapses into
apparent unconsciousness, the time of certain unconsciousness, and the time
of an inmate's last bodily movement. Fierro II, 865 F.Supp. at 1401. For
example, Harris did not lapse into apparent unconsciousness until two
minutes after the cyanide gas first hit his face. Harris did not appear
certainly unconscious until an additional minute had passed. Similarly,
Mason did not lapse into apparent unconsciousness until one minute after he
began breathing the gas. Mason was not recorded as being certainly
unconscious until an additional two minutes had passed. The district court
also noted that "many of Mason's apparently conscious actions appeared to
be responses to pain," such as tight clenching of his fists, how his head
was thrown back, and how his throat muscles strained. Id. at 1402.
The district court summarized its findings from this evidence as follows:
[I]nmates who are put to death in the gas chamber at San Quentin do not
become immediately unconscious upon the first breath of lethal gas. . . .
[A]n inmate probably remains conscious anywhere from 15 seconds to one
minute, and . . . there is a substantial likelihood that consciousness, or
a waxing and waning of consciousness, persists for several additional
minutes. During this time, . . . inmates suffer intense, visceral pain,
primarily as a result of lack of oxygen to the cells. The experience of
"air hunger" is akin to the experience of a major heart attack, or to being
held under water. Other possible effects of the cyanide gas include tetany,
an exquisitely painful contraction of the muscles, and painful build-up of
lactic acid and adrenaline. Cyanide-induced cellular suffocation causes
anxiety, panic, terror, and pain. Fierro II, 865 F.Supp. at 1404 (internal
The district court then applied these evidentiary findings to Campbell's
analytic framework. The court first considered the level of pain suffered
by an inmate during execution. The district court's primary findings were
that: (1) "inmates are likely to be conscious for anywhere from fifteen
seconds to one minute from the time that the gas strikes their face," (2)
"there is a substantial risk that consciousness may persist for up to
several minutes," (3) "during this period of consciousness, the condemned
inmate is likely to suffer intense physical pain," and (4) the cause of
death by cyanide gas, cellular suffocation, was a "substantially similar
experience to asphyxiation" and that Campbell had suggested that
asphyxiation would be an impermissibly cruel method of execution. Fierro
II, 865 F.Supp. at 1413.
The district court stated that the evidence did not "demonstrate
conclusively" that inmates executed by lethal gas suffered for "minutes on
end." Fierro II, 865 F.Supp. at 1414. Yet the court also stated that the
evidence did not "show that inmates suffer pain for only a matter of
seconds." Id. As a result, the court concluded that "[t]his case falls
somewhere in between" the two extremes. Id. The court then turned to a
consideration of legislative trends to determine whether execution by
lethal gas violated the Eighth Amendment. Id.
We think that there was no need for the district court to engage in an
analysis of legislative trends. We believe that the district court's
factual findings regarding pain are dispositive under the framework of
Campbell. The court's findings regarding the type and level of pain
inflicted during execution by lethal gas under California's protocol, when
combined with its finding that there exists a substantial risk that this
pain will last for several minutes, dictate such a result. We accept these
factual findings because they are fully supported by the record and thus
are not clearly erroneous. Under Campbell, such horrible pain, combined
with the risk that such pain will last for several minutes, by itself is
enough to violate the Eighth Amendment. Such being the case, a legislative
trend analysis is unnecessary.
We recognize that two circuits have declined to conclude that execution by
lethal gas is unconstitutional. Gray v. Lucas, 710 F.2d 1048 (5th Cir.
1983), cert. denied, 463 U.S. 1237 (1983); Hunt v. Nuth, 57 F.3d 1327 (4th
Cir. 1995), cert. denied, 64 U.S.L.W. 3466 (U.S. Jan. 8, 1996).
In Gray, the Fifth Circuit affirmed the district court's denial of an
evidentiary hearing to a death row inmate challenging execution by lethal
gas. The Fifth Circuit concluded that:
[W]e are not persuaded that under the present jurisprudential standards the
showing made by Gray justifies this intermediate appellate court holding
that, as a matter of law or fact, the pain and terror resulting from death
by cyanide gas is so different in degree or nature from that resulting from
other traditional modes of execution as to implicate the eighth amendment
Gray, 710 F.2d at 1061. Unlike the instant case, however, neither the
district nor appellate court had the benefit of extensive expert witness
testimony that had been subjected to searching cross-examination. Nor,
apparently, did either court have the benefit of extensive prison medical
records documenting inmates' deaths by lethal gas and the lengths of time
that these inmates likely remained conscious after exposure to the gas.
In Hunt, the Fourth Circuit declined to follow Fierro II. The court stated
that "[l]ethal gas currently may not be the most humane method of
execution--assuming that there could be a humane method of execution--but
the existence and adoption of more humane methods does not automatically
render a contested method cruel and unusual." Hunt, 57 F.3d at 1337-38.
Here again, the district court in Hunt did not have the benefit of expert
witness testimony subjected to searching cross-examination. See Hunt v.
Smith, 856 F.Supp. 251, 260 (D. Md. 1994) (mentioning only petitioners'
affidavits as the evidentiary basis for its decision). Nor did the Fourth
Circuit have the benefit of findings based on such testimony. In Hunt,
neither the district court nor the Fourth Circuit mentioned official
records that set forth in detail what occurred in the gas chamber during an
execution. These were the key pieces of evidence relied on by the district
court in the instant case to invalidate execution by lethal gas.
Gray and Hunt do not alter our conclusion in this case. The district court
in the instant case conducted an eight-day trial and was the first to
consider extensive evidence on the pain involved in execution by lethal
gas, and the first to make extensive factual findings regarding this pain.
In short, we hold that the district court's extensive factual findings
concerning the level of pain suffered by an inmate during execution by
lethal gas are not clearly erroneous. The district court's findings of
extreme pain, the length of time this extreme pain lasts, and the
substantial risk that inmates will suffer this extreme pain for several
minutes require the conclusion that execution by lethal gas is cruel and
unusual. Accordingly, we conclude that execution by lethal gas under the
California protocol is unconstitutionally cruel and unusual and violates
the Eighth and Fourteenth Amendments. The district court's permanent
injunction against defendants is AFFIRMED.
:::::::::::::::::::: FOOTNOTES ::::::::::::::::::::
FN1. Justice Stanley Mosk dissented because he found that an evidentiary
hearing was justified. Harris, No. S026235, at 3-4. Justice Mosk noted that
the California Supreme Court had last analyzed execution by lethal gas in
1953 and that, at the time, the court had implied that it was "controlled
by our scientific knowledge of the subject." Id. at 3 (quoting People v.
Daugherty, 40 Cal. 2d 876, 895, 256 P.2d 911, 922 (1953), cert. denied, 346
U.S. 827 (1953)). Justice Mosk pointed out that the court's " 'knowledge,'
however, apparently consisted of the 'fact' that '[f]or many years animals
have been put to death painlessly by the administration of poisonous gas.'
" Id. (quoting Daugherty, 40 Cal. 2d at 895, 256 P.2d at 922).
FN2. The court also correctly noted that "[t]he Supreme Court has declined
to address whether conditions of confinement claims may be brought under
habeas." Fierro I, 790 F.Supp. at 967 n.2 (citing Bell v. Wolfish, 441 U.S.
520, 526 n.6 (1979)). In the present case, we also decline to address
whether a challenge to a condition of confinement or method of execution
may be brought under habeas as this issue is not before us.
FN3. This helps explain why some method of execution challenges have been
brought as habeas petitions and others as section 1983 actions. The courts
may have construed habeas petitions as section 1983 actions and vice versa,
without noting this fact. See e.g., Graham v. Broglin, 922 F.2d 379, 381-82
(7th Cir. 1991) ("If a prisoner who should have asked for habeas corpus
misconceives his remedy, brings a civil rights suit, and fails to exhaust
his state remedies, his suit must be dismissed. But if, as in this case, he
asks for habeas corpus when he should have brought a civil rights suit, all
he has done is mislabel his suit, and either he should be given leave to
plead over or the mislabeling should simply be ignored."); Franklin, 662
F.2d at 1347 n.13 ("Nonetheless, we find that the trial court was justified
in construing Franklin's complaint as a habeas petition [rather than a
section 1983 suit] because Franklin brought his complaint pro se. Courts
cannot expect a pro se litigant to adhere to formalistic pleading
FN4. In addition to analyzing pain, a number of Eighth Amendment decisions
also examine legislative trends. Evidence of legislative trends away from a
particular punishment or of the proportion of states imposing a particular
punishment is relevant evidence of whether a punishment is "cruel and
unusual." Trop v. Dulles, 356 U.S. 86, 102 (1958) (plurality opinion);
Weems v. United States, 217 U.S. 349, 377 (1910). Legislative trends are
particularly relevant when measuring the "evolving standard of decency."
Penry v. Lynaugh, 492 U.S. 302, 331 (1989); Stanford v. Kentucky, 492 U.S.
361, 373 (1989); McCleskey v. Kemp, 481 U.S. 279, 300 (1987). See also
Campbell v. Wood, 18 F.3d 662, 682 (9th Cir. Feb. 8, 1994) (en banc), cert.
denied, 114 S.Ct. 2125 (1994) (concluding that, although the number of
states using a particular method of execution, hanging, "is evidence of
public perception," such evidence is not dispositive merely because few
states continue using that particular method).
FN5. The district court relied on evidence of only one hanging, that of
Westley Allan Dodd, conducted in 1993 in accordance with the protocol.
According to the doctor who witnessed the execution and pronounced Dodd's
death, "Dodd became unconscious within a matter of seconds." Campbell, 18
F.3d at 685. The district court excluded evidence of other hangings in
which the inmate had died through either asphyxiation or by decapitation
because these "bungled" hangings "could not be reliably compared to"
Washington's method, which was governed by a detailed protocol. Id.
Washington's protocol regulates the diameter of the rope, the elasticity of
the rope, the proper knot to use, and the particular distance the inmate is
dropped, depending on his body weight. The protocol, by defining and
regulating these factors, sought to ensure "rapid unconsciousness and
death" and to avoid "the risks of death by asphyxiation and decapitation,
as opposed to death by injury to vascular, spinal, and nervous functions."
Campbell, 18 F.3d at 683.
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