"no court would approve any method of implementation of the
Page 463 U. S. 1245
death sentence found to involve unnecessary cruelty in the light
of presently available alternatives."
Furman v. Georgia, 408 U. S. 238,
408 U. S. 430
(1972) (POWELL, J., joined by BURGER, C.J., and BLACKMUN and
REHNQUIST, JJ., dissenting);
see also id. at
408 U. S. 279
(BRENNAN, J., concurring).
The Court of Appeals failed to apply either of the foregoing
principles to the case before it. Instead, the court attempted to
assess the "pain and terror" associated with "traditional modes of
execution" (such as hanging) and concluded that the difference
between the trauma associated with the use of lethal gas and the
trauma associated with those traditional methods was not so great
as to render the former constitutionally infirm.
Gray v. Lucas,
supra, at 1061. Had the court made an effort to apply the
proper legal standards, it seems highly likely that it would have
found the lethal gas method to be unconstitutional. A death that,
as the court recognized, involves extreme pain over a span of 10 to
12 minutes surely must be characterized as "lingering,"
see In
re Kemmler, supra. And petitioner directed the court's
attention to at least one readily available alternative method of
administering the death penalty that, though equally barbaric in
its effects, involves far less physical pain than the use of
cyanide gas; [
Footnote 4] it
seems indisputable, therefore, that the lethal gas method is
"unnecessarily cruel."
That execution through the administration of lethal gas violates
the Eighth amendment is confirmed by examination of the treatment
accorded the method in recent years by the state legislatures. This
Court has often indicated that assessment of the constitutional
status of a given punishment "
should be informed by objective
factors to the maximum
Page 463 U. S.
1246
possible extent.'" Enmund v. Florida, 457
U. S. 782, 457 U. S. 788
(1982) (quoting Coker v. Georgia, 433 U.
S. 584, 433 U. S. 592
(1977) (plurality opinion)). Among the most important of those
factors is the direction in which contemporary "legislative
judgments" are moving. Enmund v. Florida, supra. Between
1921 and 1973, several states by statute adopted the lethal gas
method. In most instances, the abandonment of the scaffold or
electric chair in favor of the gas chamber was prompted by
humanitarian motives; asphyxiation was regarded as a less painful
and more dignified way of administering the death penalty than
hanging or electrocution. [Footnote
5] However, as awareness of the trauma associated with the
lethal gas method grew, and as the lethal injection method became
better known, the trend was reversed. In the past decade, no state
has adopted the lethal gas method. By contrast, three states that
formerly employed the gas chamber exclusively have altered their
laws to require or permit use of the injection procedure. [Footnote 6] At least two other states
that never had used the gas chamber considered adopting the method,
but rejected it in favor of the injection system. [Footnote 7] At present, only seven of the 39
jurisdictions that retain the death penalty require use of the gas
chamber. [Footnote 8] This
evolving consensus
Page 463 U. S. 1247
against compulsory use of the lethal gas method buttresses the
conclusion that the procedure must now be considered "cruel."
Under these circumstances, the majority's decision to deny the
stay, thereby authorizing the execution of petitioner before we can
even consider his petition for certiorari, seems to me
unconscionable. Petitioner has presented a substantial challenge to
the constitutionality of Mississippi's method of execution. The
Court of Appeals has denied petitioner a hearing to develop his
claim.
Townsend v. Sain, 372 U. S. 293. Yet
a majority of this Court declines to delay petitioner's execution a
few more weeks until we can consider through our traditional means
of deliberation whether this case raises issues of sufficient
import to grant a writ of certiorari.
I dissent from the denial of the stay.
JUSTICE STEVENS would grant the application for stay.
[
Footnote 1]
Even if his petition for certiorari did not present the
substantial constitutional claim discussed below, I would
nevertheless grant petitioner's application for a stay, grant
certiorari, and vacate petitioner's death sentence in accordance
with my view that the death penalty is unconstitutional in all
circumstances.
Gregg v. Georgia, 428 U.
S. 153,
428 U. S. 231
(1976) (MARSHALL, J., dissenting).
[
Footnote 2]
The District Court never assessed the relevance of these
affidavits because it disposed of the claim on procedural grounds.
The court determined that petitioner had neglected to present this
Eighth Amendment claim in state court proceedings, and therefore
had forfeited his right to raise the issue in federal court.
Wainwright v. Sykes, 433 U. S. 72
(1977).
The District Court also reasoned that, since petitioner's
original counsel did not include this claim in a previous federal
habeas corpus petition, petitioner had waived the claim, and it
would be an abuse of the writ for him to try to raise it in his
current habeas petition.
See Sanders v. United States,
373 U. S. 1,
373 U. S. 17-19;
28 U.S.C. § 2254 Rule 9(b) (1976).
[
Footnote 3]
The Court of Appeals did not share the District Court's view
that federal court review of this claim was procedurally barred.
See n 2,
supra. The Circuit rejected the District Court's finding
of forfeiture, and ruled that, in reaching petitioner's claim on
the merits, "the Mississippi Supreme Court itself removed any
procedural bar which might otherwise impede a federal court's
hearing the merits." 710 F.2d at 1052 n. 2. The Circuit did not
explicitly consider the District Court's "abuse of writ" ground for
dismissal, but, by electing to reach the merits of the claim, the
court implicitly held that petitioner had offered adequate
explanation why the issue had not been raised in his first habeas
corpus petition. In his brief to the Court of Appeals, petitioner
explained that his original counsel had been unaware of the
excruciating side effects of execution by lethal gas, and that the
current trend against the use of lethal gas was not yet evident
when petitioner filed his first federal habeas corpus petition.
See infra, p.
463 U. S.
1246 and nn. 6 and 7. Alternatively, the Court of
Appeals may quite correctly have concluded that, given the
equitable nature of habeas relief, the District Court should not
have denied petitioner an opportunity to challenge the means by
which he will die simply because his attorney neglected to append
the claim to an earlier petition.
See Fay v. Noia,
372 U. S. 391,
372 U. S.
438-440 (1963);
Sanders v. United States,
supra, at
373 U. S.
17-18.
Relying on this Court's recent opinion in
Barefoot v.
Estelle, 463 U. S. 880
(1983), respondent suggests that second and successive habeas
corpus petitions in death penalty cases should receive heightened
scrutiny. I disagree. The majority in
Barefoot explicitly
endorsed the
Sanders standard for reviewing second and
successive petitions in death penalty cases. 463 U.S. at
463 U. S. 895.
Since petitioner established that his failure to bring this claim
in his previous petition was not an abuse of the writ under
Sanders, the courts below were obliged to consider the
claim on the merits.
[
Footnote 4]
That method is the lethal injection procedure, which involves
intravenous injection of a fast-acting barbituate combined with a
paralytic agent.
See Royal Commission on Capital
Punishment, 1949-1953 Report, Cmd. No. 8932, at 257 (1980);
Gardner, Executions and Indignities -- An Eighth Amendment
Assessment of Methods of Inflicting Capital Punishment, 39 Ohio
St.L.Rev. 96, 128-129 (1978).
[
Footnote 5]
See L. Berkson, The Concept of Cruel and Unusual
Punishment 29-31 (1975).
[
Footnote 6]
See Nev.Rev.Stat. § 176.355 (1983); N.M.Rev.Stat. §
31-14-11 (1983 Cum.Supp.); 1983 N.C.Sess.Laws, 1st Sess., chap. 678
(amending N.C.Gen.Stat. § 15-187 (1978)).
[
Footnote 7]
See 1977 Okla.Sess.Law, ch. 41, § 1014; 1977
Tex.Sess.Law, ch. 138, § 1.
[
Footnote 8]
The seven states are Arizona (Ariz.Rev.Stat.Ann. § 13-704 (1978
& Supp. 1982-1983)); California (Cal.Penal Code § 3604 (West
1982)); Colorado (Colo.Rev.Stat. § 16-11-401 (1973)); Maryland
(Md.Code Ann. Art. 27, § 71 (1982)); Mississippi (Miss.Code Ann. §
99-19-51 (1972)); Missouri (Mo.Rev.Stat. § 546.720 (1949)); and
Wyoming (Wyo.Stat. § 7-13-904 (1977)).
A similar situation was presented in
Enmund v. Florida,
supra. In that case, the Court relied significantly upon the
fact that
"[o]nly a small minority of jurisdictions -- nine -- allow the
death penalty to be imposed solely because the defendant somehow
participated in a robbery in the course of which a murder was
committed"
in holding unconstitutional the use of capital punishment under
such circumstances.
Id. at
458 U. S.
792.
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