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San Francisco Daily Journal

phyllis goldfarb

State's Debate On Executions Targets 'Cruel'

SAN FRANCISCO — At the center of the recent debate about California’s lethal-injection execution procedure is the constitutional protection against "cruel and unusual punishment."

The Eighth Amendment concept is one that’s not so easily pinned down, legal scholars say.

The term is not only subjective but also a continually moving target that has evolved over the past 50 years, much like the First Amendment standard of obscenity, they say.

"If there’s anything resembling torture in the taking of a life, it could be considered cruel and unusual punishment," said Boston College law professor Phyllis Goldfarb, who teaches a seminar on the death penalty.

Lawyers for California death-row prisoner Michael Morales could give the U.S. Supreme Court, which has never ruled any particular method of execution to be unconstitutional, its first chance in more than a decade to further define the term.

Excruciating Pain

Lawyers for Morales, on death row for the 1981 murder of Terri Winchell of Lodi, argue the state’s lethal-injection procedure is so rife with problems that there’s a good chance inmates are suffering excruciating pain as they are put to death in San Quentin’s cramped former gas chamber.

During hearings in September before U.S. District Judge Jeremy Fogel, witnesses testified that a poorly trained execution team puts the needle in the condemned prisoner’s arm.

Medical experts from both sides said there’s no way to know whether the first of three drugs, a sedative, renders the inmate fully unconscious before the second and third drugs are administered. The second drug causes paralysis, but it’s the third heart-stopping drug that triggers intense pain.

Prosecutors argue that lethal injection is not a medical procedure, so it should not be subject to the same high standards.

It’s now up to Fogel to decide whether the procedure complies with the Eighth Amendment or must be changed.

Fogel has asked witnesses about the use of a single anesthetic to do the job, although in court records he said his questions should not be used to predict how he will rule.

As a legal concept, the notion of cruel and unusual punishment can be traced back three centuries to the English Bill of Rights, drafted by Parliament at the accession of William and Mary, said Colin (Joan) Dayan, Vanderbilt University humanities professor and author of the forthcoming book "The Story of Cruel and Unusual."

Drafters of the Bill of Rights incorporated the term to apply to torture and other "barbarous" methods of punishment, such as mutilation, burning, decapitation, and drawing and quartering, Dayan said.

But in modern times, the U.S. Supreme Court has expanded the definition, using it to measure not just the humanity of the method but also whether the punishment fits the crime, she said.

In Trop v. Dulles, 356 U.S. 86 (1958), the high court ruled it was unconstitutionally cruel to punish a wartime deserter by stripping him of his citizenship.

"In so ruling [Chief Justice Earl] Warren emphasized a flexible interpretation of the Eighth Amendment that would adapt to enlightened public opinion," Dayan said. "The ‘dignity of man,’ he posited, was the linchpin of the Eighth Amendment."

With its landmark ruling in Furman v. Georgia, 408 U.S. 238 (1972), the court went so far as to say that the death penalty itself was unconstitutional under the Eighth Amendment because the arbitrary way it was carried out revealed discrimination against poor people and minorities.

The ruling led to a moratorium on capital punishment that was lifted after the Supreme Court outlined in Gregg v. Georgia, 428 U.S. 153 (1976), guidelines that states could follow to ensure the death penalty was not being meted out capriciously.

Since then, several rulings have placed restrictions on who can receive "the ultimate punishment."

In Atkins v. Virginia, 536 U.S. 304 (2002), the court ruled that people who are mentally retarded cannot be executed, citing a shift in national consensus on the issue as the reason for the change.

Three years later, the court used the same logic to affirm that juveniles who commit murder cannot receive the death penalty. Roper v. Simmons, 543 U.S. 551 (2005).

"Those were the two cases where the courts said, ‘We’ve looked at the evolving consensus of standards of decency. We find consensus that the application of the death penalty to those defendants is cruel and unusual punishment,’" said David Siegel, a death-penalty professor at New England School of Law.

The California case that has reignited the Eighth Amendment debate is somewhat different because it concerns the method of execution, rather than the idea of execution itself.

During four days of hearings in September, Fogel referred to a lethal-injection challenge by a condemned prisoner in Virginia.

In that case, Walker v. Johnson, 105CV-934 (E.D. Va. 2006), U.S. District Judge Claude M. Hilton dismissed the challenge.

"The evidence before the Court shows that Defendants have gone to great lengths to identify and minimize the risk of error in the protocol," Hilton wrote. "For example, there are many safeguards such as redundancies in the equipment, the placing of two working IV lines, the high dosage of lethal drugs to ensure that the drugs cause death quickly, the manner in which the drugs are prepared and handled, the qualifications of the execution team members, and the repetitive training required of them."

On the subject of pain, Fogel has said that an execution does not have to be painless, only that it cannot "inflict severe degrees of pain."

What that means exactly is open to interpretation, legal scholars say.

"The understanding of what would be an unnecessary and gratuitous infliction of pain has changed to some extent over time," Goldfarb said.

While the high court has never found any particular execution method to be unconstitutionally cruel and unusual, other courts have, including the 9th U.S. Circuit Court of Appeals, which will hear any appeal of Fogel’s decision.

A successful challenge to the gas-chamber method is one reason California uses lethal injection today.

Gas-chamber critics complained it left inmates gasping for air and clenching their fists for up to several minutes before they died.

The lingering nature of death in the chamber prompted the 9th Circuit to find that it violated the Eighth Amendment. But the decision was short-lived. The Supreme Court reversed in Gomez v. Fierro, 519 U.S. 918 (1996).

By that time, lethal injection was used widely throughout the country.

Lethal injection was considered a more humane method than the gas chamber or the electric chair, which had been developed in the late 1880s to replace hanging.

Electrocution has never been found unconstitutional, but stories of botched executions offended people’s sensibilities, and most states stopped using it. Today, Nebraska is the only state that uses the electric chair exclusively for executions.

Hanging is the oldest method used today, although it is used rarely.

The 9th Circuit, criticized by many as being too liberal, has ruled as recently as 1994 that hanging is a perfectly acceptable method for execution. Campbell v. Wood, 18 F.3d 662 (1994).

In that case from Washington state, the court found that the procedure virtually ensures a quick death.

Washington still allows condemned prisoners to choose the gallows.

But lethal injection was chosen as the primary method after one condemned prisoner was deemed too obese to execute by hanging because of the risk of decapitation.

Mitchell Rupe, who weighed more than 400 pounds at the time, was convicted of murder in the shooting deaths of two bank tellers during a 1981 robbery. He died in prison of natural causes in February.

The fact that execution methods that were widely accepted in the past have become unacceptable suggests that standards of decency are changing, Goldfarb said.

"Whether they’ve evolved enough to undermine the possibility of using lethal-injection executions remains to be seen," she said.

A New York Law School professor and outspoken supporter of the death penalty for murderers who are the "worst of the worst" said it would not bother him if states abandoned lethal injection for executions.

Robert Blecker argued that Morales deserves to die a "quick but painful death" because of the torture and pain he inflicted on his victim.

"[Execution] should be a distinctive ritual. It should not be unfeeling. It shouldn’t resemble a hospital," Blecker said.

Closing briefs in the Morales case are due Friday, and Fogel’s decision could come any time after that.


Laura Ernde
Staff Writer
San Francisco Daily Journal