Campbell v. Wood

18 F.3d 662

62 USLW 2522

Charles Rodman CAMPBELL, Petitioner-Appellant,

v.

Tana WOOD, * Superintendent, Washington State

Penitentiary, Walla Walla, Washington; Christine

O. Gregoire, ** Attorney

General, State of Washington,

Respondents-Appellees.

No. 89-35210.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Jan. 20, 1993.

Submission Withdrawn Jan. 29, 1993.

Submitted Nov. 5, 1993.

Decided Feb. 8, 1994.

Charles Rodman Campbell, pro per, Walla Walla, Washington.

James E. Lobsenz, Carney, Bradley, Smith & Spellman, Seattle, Washington, for the petitioner-appellant.

Paul D. Weisser, Assistant Attorney General, John M. Jones, Assistant Attorney General, Olympia, Washington, for the respondents-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before: WALLACE, Chief Judge, BROWNING, TANG, POOLE, D.W. NELSON, REINHARDT, BEEZER, WIGGINS, THOMPSON, O'SCANNLAIN, and KLEINFELD, Circuit Judges.

BEEZER, Circuit Judge:

1

Charles Rodman Campbell was convicted in 1982 of three counts of aggravated first-degree murder and sentenced to death. We consider en banc the denial of Campbell's second federal habeas corpus petition. We affirm the district court and provide for the dissolution of the stay of execution pending appeal.

2

* We begin with an overview of the procedural and factual background of Campbell's conviction and his current and prior petitions for post-conviction relief.

3

* Campbell was convicted of three counts of aggravated murder and sentenced to death. The Washington Supreme Court affirmed the conviction and sentence. State v. Campbell, 103 Wash.2d 1 , 691 P.2d 929 (1984). The Snohomish County Superior Court issued a death warrant scheduling Campbell's execution for March 29, 1985. The Washington Supreme Court stayed the execution to allow Campbell to petition the United States Supreme Court for a writ of certiorari. The Supreme Court denied certiorari on April 29, 1985. Campbell v. Washington, 471 U.S. 1094 , 105 S.Ct. 2169 , 85 L.Ed.2d 526 (1985).

4

A second death warrant issued on May 17, 1985, setting Campbell's execution for July 25, 1985. Campbell moved the Washington Supreme Court for another stay. The court treated the motion as a personal restraint petition, and on July 18, 1985, denied the motion for a stay and dismissed the petition on the merits. On July 22, 1985, Campbell filed a habeas corpus petition in the United States District Court for the Western District of Washington. The district court granted a stay of the execution. Campbell's petition made 61 claims, 40 of which the district court determined had not been exhausted in state court. Campbell amended his petition to limit his claims to the 21 exhausted claims. The district court held an evidentiary hearing, and on February 12, 1986, denied the habeas petition. We affirmed on October 6, 1987. Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir.1987) (Campbell I ). We denied the petition for rehearing and the suggestion for rehearing en banc. The Supreme Court denied certiorari. Campbell v. Kincheloe, 488 U.S. 948 , 109 S.Ct. 380 , 102 L.Ed.2d 369 (1988). We dissolved the stay of execution on January 25, 1989.

5

A third death warrant issued on February 15, 1989, scheduling Campbell's execution for March 30, 1989. Campbell appealed from the order scheduling his execution. The Washington Supreme Court affirmed on March 23, 1989. State v. Campbell, 112 Wash.2d 186 , 770 P.2d 620 (1989). Campbell filed a second petition for a writ of habeas corpus in the district court. The district court held an evidentiary hearing and then denied the petition and request for a stay on March 28, 1989. The district court issued a certificate of probable cause. Campbell appealed on March 29, 1989, and on March 30, 1989, we granted a stay of the execution pending appeal.

6

While this appeal was pending, Campbell filed another personal restraint petition in the Washington Supreme Court. The Washington Supreme Court denied the petition on March 21, 1991, and denied rehearing on May 15, 1991. On August 7, 1991, we granted Campbell leave to file a third habeas petition, and indicated that an appeal, if any, from the district court's decision on the third petition would be consolidated with the pending appeal on the second petition. Campbell v. Blodgett, 940 F.2d 549 (9th Cir.1991); see also Campbell v. Blodgett, 927 F.2d 444 (9th Cir.1991). Campbell filed his third habeas corpus petition in the district court on September 18, 1991. The district court dismissed the petition as successive and an abuse of the writ on March 9, 1992.

7

While Campbell's third habeas petition was pending before the district court, the Washington Attorney General filed a petition for mandamus in the United States Supreme Court on October 25, 1991. The Supreme Court denied the writ, but stated that it found no plausible reason for the delay in resolving Campbell's second appeal. In re Blodgett, --- U.S. ----, ----, ----, 112 S.Ct. 674, 675, 677 , 116 L.Ed.2d 669 (1992). The appeals therefore were not consolidated. We affirmed the district court's denial of relief on Campbell's third petition on December 24, 1992. Campbell v. Blodgett, 982 F.2d 1321 , superceded on denial of reh'g, 997 F.2d 512 (9th Cir.1993) (Campbell III ).

8

The panel filed its opinion on Campbell's second petition on April 1, 1992. Campbell v. Blodgett, 978 F.2d 1502 (9th Cir.1992) (Campbell II ). We granted rehearing en banc on October 8, 1992. Campbell v. Blodgett, 978 F.2d 1519 (9th Cir.1992).

9

On May 1, 1993, we ordered a limited 35-day remand to the district court for an evidentiary hearing on the issue of whether execution by hanging violates the Eighth Amendment prohibition of cruel and unusual punishment. See Campbell v. Blodgett, 992 F.2d 984 (9th Cir.1993) (denying reconsideration of remand order); see also Blodgett v. Campbell, --- U.S. ----, 113 S.Ct. 1965 , 124 L.Ed.2d 66 (1993) (O'Connor, J.) (denying application to vacate remand order). The district court heard three days of testimony and entered findings and conclusions on June 1, 1993. Campbell attempted to appeal from the findings and conclusions by filing a notice of appeal in the district court on June 7, 1993. In an order dated July 23, 1993, we stated that an appeal from the limited remand was error. Campbell v. Blodgett, 998 F.2d 763 (9th Cir.1993). Campbell moved to allow supplemental briefing. We granted the motion on August 27, 1993. Briefing was completed on October 22, 1993, and we ordered the case resubmitted for decision on November 5, 1993. We now affirm.

B

10

In 1974, Charles Campbell assaulted and sodomized Renae Wicklund in her residence in Clearview, Washington. Campbell held a knife to the throat of Wicklund's one-year-old daughter Shannah, threatening to harm her if Renae did not submit. After the attack, Wicklund ran to the house of her neighbor, Barbara Hendrickson, for help. Campbell was tried and convicted on the assault and sodomy charges in 1976. Both Renae Wicklund and Barbara Hendrickson testified at the trial. Campbell was sentenced to a prison term. In March 1982, Campbell was transferred to a work release facility in Everett, Washington.

11

On April 14, 1982, Renae Wicklund, Shannah Wicklund (then eight years old), and Barbara Hendrickson were found brutally slain in the Wicklund residence. Wicklund had been sick and remained at home that day. Hendrickson had gone to Wicklund's residence to assist her.

12

The evidence at trial showed that Wicklund had been the first victim. She was found naked on her bedroom floor. She had been beaten with a blunt instrument on her head, back, and upper chest. Her jaw and nose were broken, and she had been strangled. She had a seven-inch cut across her neck, from which she had bled to death. After her death, she had been vaginally assaulted with a blunt instrument which left a one-inch cut in her vaginal wall.

13

Wicklund's daughter had also been strangled, and she had a seven-and-one-half-inch cut across her upper neck. She had lost so much blood that a sample was difficult to obtain.

14

Hendrickson's throat also had been cut, leaving a seven-inch wound. She died of a massive hemorrhage. See generally State v. Campbell, 691 P.2d at 933 .

15

Campbell was charged and tried on three counts of aggravated first degree murder. In affirming the convictions, the Washington Supreme Court noted that the State's case was "overwhelmingly strong." State v. Campbell, 691 P.2d at 933 . Several witnesses testified that they saw a man near the Wicklund residence on the afternoon of the murders and identified Campbell at trial as the man they had seen. Two other witnesses described a car matching the description of Campbell's car and testified that they observed the car parked in an inlet in a wooded area near the Wicklund residence on April 14, 1982. Judith Dirks testified that Campbell had visited her on the morning of April 14, that he had been drinking, and that he drank a six-pack of beer at her residence. Dirks later noticed her butcher knife was missing. Another of Campbell's acquaintances, Debbie Kedziroski, testified that Campbell visited her in the early afternoon of April 14. Kedziroski testified that Campbell proposed to have sexual relations and tugged at her clothes but did not hurt her.

16

Items seized from Campbell on the day of the murders included a pair of earrings that a witness identified as belonging to Renae Wicklund. An earring found in Campbell's car was identified by a business associate of Renae's as a birthday present he had given to Shannah. A glass found in the Wicklunds' kitchen bore a fingerprint matching Campbell's. Finally, another work-release resident directed police to a place on the Snohomish River where he and Campbell had been on the evening of April 14. Investigators and divers found a bracelet, three earrings, two necklaces, a piece of pottery, and a brass object, all of which were linked to the Wicklund residence and the victims. See generally State v. Campbell, 691 P.2d at 933-936 .

17

The jury convicted Campbell on November 26, 1982. The jury found four aggravating factors: (1) Campbell was serving a term of imprisonment at the time he committed the murders, Wash.Rev.Code 10.95.020(2); (2) Barbara Hendrickson and Renae Wicklund were former witnesses against Campbell and their murders were related to the exercise of their official duties at that trial, Wash.Rev.Code 10.95.020(6)(b); (3) Campbell murdered Barbara Hendrickson and Shannah Wicklund to protect or conceal his identity, Wash.Rev.Code 10.95.020(7); and (4) Campbell committed the murder in the course of, in the furtherance of, or in the immediate flight from the crime of burglary in the first degree, Wash.Rev.Code 10.95.020(9)(c). In a separate proceeding, the jury found insufficient mitigating circumstances to merit leniency, and Campbell was sentenced to death. State v. Campbell, 691 P.2d at 937 .

C

Campbell presents the following questions:

18

(1) Whether Campbell's absence at the empanelling of the state court jury violated his constitutional rights;

19

(2) Whether Campbell received ineffective assistance of counsel with respect to his waiver of presence at jury selection;

20

(3) Whether the Washington death penalty statute, Wash.Rev.Code 10.95, provides a mandatory death penalty formula and fails to provide appropriate or reliable standards for the sentencing authority to determine whether a death sentence should be imposed;

21

(4) Whether the trial court's instructions to the jury unconstitutionally limited the facts the jury could consider in mitigation;(5) Whether Campbell has been denied effective assistance of counsel and adequate access to the courts in his post-conviction proceedings;

22

(6) Whether the district court erred by denying Campbell's motion for a stay of execution and by not providing an adequate evidentiary hearing;

23

(7) Whether execution by hanging violates the Eighth Amendment; and

24

(8) Whether Washington employs qualified personnel to execute the death warrant.

II

25

Campbell contends that a defendant in a capital case can never waive the right of presence at the empanelling of the jury. We disagree. We hold that Campbell could, and did, waive his right to be present during the empanelling of the jury.

26

* Due to the inordinate amount of local publicity generated by the charges against Campbell and his pending trial, the state trial court ordered that the jury be selected at the Spokane County Courthouse, a location 275 miles east of the Snohomish County Courthouse. Once selected, the jury was to be transported to Snohomish County for the trial. On October 21, 1982, Campbell's attorney told the court that Campbell wanted to waive his presence at the jury selection and to remain in Snohomish County. Counsel stated that Campbell had "legitimate fears" as to the treatment he would receive from officers and other prisoners in Spokane, and that Campbell preferred "to stay [in Snohomish County] and concentrate on the trial and his future."

27

The prosecutor objected immediately, expressing the concern that Campbell was playing a game, and that Campbell's proposed waiver was a tactic to create an issue for appeal. The judge then addressed Campbell personally to satisfy himself that Campbell knew what he was doing. 1 The judge informed Campbell that he had a constitutional right to be present during jury selection, and that if he were absent, he would not be able to help his lawyers select the jury. The judge warned Campbell that he might not approve of the jurors selected by his attorneys. The judge also advised Campbell that he would have little contact with his lawyers while they were in Spokane.

28

Campbell repeatedly indicated that he understood the repercussions of his decision. He stated:

29

I have a lot of confidence in Mr. Mestel and Mr. Savage going over there. They do that for a living. I am trying to prepare myself for my part in the trial and I am trying to relax and get my head together.... I feel like going to Spokane will be a real inconvenience.... My time will be limited and I will not be able to prepare things I am working on right now. It is my decision to stay here in Snohomish County so that I can accomplish that.

30

The state trial judge considered the matter further the next day and informed Campbell that his waiver of presence at the empanelling of the jury would, in effect, be irrevocable due to the difficulty of getting Campbell to Spokane if he changed his mind. Campbell stated that he still wished to waive presence. The court concluded that there was "good cause" to honor Campbell's request because Campbell felt he had more important things to do in preparing for trial. The court also stated that honoring the request was "justified by the expense and difficulty and security means that would have to be taken to afford us to transport him and the security during the course of any jury selection in a foreign county."

31

Campbell executed the following written waiver of his right to be present at the empanelling of the jury:

32

The defendant being advised that he has an absolute right to travel to Spokane and be present during the selection of the jury to sit in the guilt and penalty phases of this cause of action and mindful that by not attending the jury selection proceedings he will be forever precluded from challenging those persons impaneled by his counsel or from contesting its composition, knowingly, intelligently and voluntarily waives his right to be present to allow him to remain in Snohomish County to continue his preparation for trial.

33

Campbell further orally agreed in open court to waive his right to raise an ineffective assistance of counsel claim connected with the waiver of the right to be present. Although the prosecution preferred to have this additional aspect of the agreement in writing, the state trial judge found the oral waiver on the record in court was sufficient. Cf., Wash.R.Sup.Ct. CR 2A.

B

34

A person charged with a felony has a fundamental right to be present at every stage of the trial. Illinois v. Allen, 397 U.S. 337, 338 , 90 S.Ct. 1057, 1058 , 25 L.Ed.2d 353 (1970). This includes the right to be present at the voir dire and empanelling of the jury. Diaz v. United States, 223 U.S. 442, 455 , 32 S.Ct. 250, 254 , 56 L.Ed. 500 (1912). The right of presence derives from the Confrontation Clause of the Sixth Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendments. United States v. Gagnon, 470 U.S. 522, 526 , 105 S.Ct. 1482, 1484 , 84 L.Ed.2d 486 (1985) (per curiam).

35

A defendant's rights under the Constitution may be waived, provided such waiver is voluntary, knowing, and intelligent. Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938). Characterization of the right of presence as "fundamental" adds little to the analysis. A defendant may waive such fundamental rights as the right to be silent, Miranda v. Arizona, 384 U.S. 436, 444 , 86 S.Ct. 1602, 1612 , 16 L.Ed.2d 694 (1966); the right to counsel, Johnson, supra; Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975); the right to be present at the trial, Taylor v. United States, 414 U.S. 17, 19-20 , 94 S.Ct. 194, 195-96 , 38 L.Ed.2d 174 (1973); and the right to be present at a conference between the judge and a juror, United States v. Gagnon, 470 U.S. 522, 529 , 105 S.Ct. 1482, 1486 , 84 L.Ed.2d 486 (1985) (per curiam). By pleading guilty to a charge, an accused may waive the right to a jury trial, the right against self-incrimination, and the right to confront witnesses. Boykin v. Alabama, 395 U.S. 238, 243 , 89 S.Ct. 1709, 1712 , 23 L.Ed.2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 466 , 89 S.Ct. 1166, 1171 , 22 L.Ed.2d 418 (1969).

36

Campbell argues that the right to be present may not be waived in a capital case. Campbell relies on two nineteenth-century Supreme Court decisions to support this proposition. In Hopt v. Utah, 110 U.S. 574 , 4 S.Ct. 202 , 28 L.Ed. 262 (1884), the Court held that it was not within the power of the accused or his counsel to waive a statutory requirement of presence at the trial. In Lewis v. United States, 146 U.S. 370, 372 , 13 S.Ct. 136, 137 , 36 L.Ed. 1011 (1892), the Court held that "after the indictment found, nothing shall be done in the absence of the prisoner."

37

These authorities do not compel the result Campbell urges. In Diaz v. United States, 223 U.S. 442, 455 , 32 S.Ct. 250, 254 , 56 L.Ed. 500 (1912), the Court distinguished between capital and noncapital cases and between custodial and noncustodial defendants, stating that the courts

38

have regarded an accused who is in custody and one who is charged with a capital offense as incapable of waiving the right; the one, because his presence or absence is not within his own control, and the other because, in addition to being usually in custody, he is deemed to suffer the constraint naturally incident to an apprehension of the awful penalty that would follow conviction.

39

The Court held that a defendant who was neither in custody nor charged with a capital offense was free to waive the right of presence by voluntarily absenting himself. Id.

40

This analysis was expanded in Snyder v. Massachusetts, 291 U.S. 97, 106 , 54 S.Ct. 330, 332 , 78 L.Ed. 674 (1934), a capital case in which the Court observed that the privilege of presence "may be lost by consent or at times even by misconduct." Finally, in Illinois v. Allen, 397 U.S. 337, 342 , 90 S.Ct. 1057, 1060 , 25 L.Ed.2d 353 (1970), the Court stated that "[t]he broad dicta in [Hopt and Lewis ] that a trial can never continue in the defendant's absence have been expressly rejected." The Court stated that it accepted instead that a defendant may lose the right to be present at trial by consent or misconduct. Id. at 342-43 , 90 S.Ct. at 1060-61 .

41

Campbell further argues that Bustamante v. Eyman, 456 F.2d 269 (9th Cir.1972), dictates that he could not waive his right to be present at jury selection. In Bustamante, defendant's attorney had waived the presence of his client when a tape recording was replayed for the jury. Id. at 271 . We reversed, suggesting both that the right could not be waived, and that the right had not, in fact, been waived:

42

Since appellant was in custody for a capital offense and his absence was not necessitated by disruptive behavior, we hold that he did not, indeed could not, waive his right to be present in the courtroom at trial. Furthermore, there is no evidence that he even attempted to waive this right. He could not voluntarily have waived this right before the tape was replayed, because it appears that he was not even aware of this replay until almost a year later. Neither is there evidence that he attempted to waive this right after he gained knowledge of it.

43

The dicta of Bustamante is not compelling. 2 Had we there been convinced that the right absolutely could not be waived, we would not have engaged in any analysis of whether a waiver had occurred. More recent authority supports our holding today. We held in Brewer v. Raines, 670 F.2d 117, 119 (9th Cir.1982), that a defendant's knowing, voluntary, and intelligent absence from his trial acts as a waiver of the right of confrontation.

44

There is no principled basis for limiting to noncapital offenses a defendant's ability knowingly, voluntarily, and intelligently to waive the right of presence. Nor do we find logic in the proposition that a right that may be waived by disruptive behavior cannot be waived by an affirmative petition freely made and based on informed judgment. The state trial judge correctly observed that refusing Campbell's request might be "an invitation to be ungovernable and get sent back [to Snohomish County]." A rational decision to waive the constitutional right is entitled to the same weight as a waiver imputed by disruptive conduct. We conclude that Campbell was capable of waiving the right to be present at the empanelling of the jury.

C

45

A waiver is an "intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938). The finding of a knowing and voluntary waiver is a mixed question of law and fact which we review de novo. Terrovona v. Kincheloe, 852 F.2d 424, 427 (9th Cir.1988). The ultimate issue of voluntariness is a legal question requiring independent federal determination. Arizona v. Fulminante, 499 U.S. 279, 286 , 111 S.Ct. 1246, 1252 , 113 L.Ed.2d 302 (1991).

46

We must indulge every reasonable presumption against the loss of the constitutional right to be present at a critical stage of the trial. Allen, 397 U.S. at 343 , 90 S.Ct. at 1061 . Still, we have no difficulty concluding that Campbell knowingly, voluntarily, and intelligently waived his right of presence at the empanelling of the jury.

47

The notion of remaining in Snohomish County while the jury was empanelled in Spokane County originated with Campbell. Neither his own attorneys nor the Snohomish County Prosecuting Attorney sought to deprive Campbell of his right to attend the proceedings in Spokane. Campbell's attorney Mark Mestel 3 was opposed to the decision, but believed that opposing Campbell on the issue would undermine an already fragile professional relationship. Twice in open court, Campbell discussed his decision to waive presence. He spoke directly with the trial judge. Campbell signed his written waiver after being fully informed that his absence would deprive him of an opportunity to advise his attorneys on jury selection matters, impair his ability to communicate with his attorneys, and preclude him from changing his mind and travelling to Spokane after jury selection began. There has never been any suggestion that Campbell was incompetent to execute the waiver. The terms of the written waiver are unambiguous.

D

48

The nature of Campbell's waiver of his right of presence provides another basis supporting our conclusion. Criminal defendants are entitled to make agreements that affect their constitutional rights. Newton v. Rumery, 480 U.S. 386, 393 , 107 S.Ct. 1187, 1192 , 94 L.Ed.2d 405 (1987).

49

Campbell entered into an express agreement to waive his constitutional rights in exchange for permission to remain in Snohomish County and attend to matters he deemed more important. The terms of the written and oral agreements he made bar his constitutional claim. The fundamental rights afforded Campbell in the Constitution do not relieve him " 'from the consequences of his voluntary choice.' " Ricketts v. Adamson, 483 U.S. 1, 8 , 107 S.Ct. 2680, 2685 , 97 L.Ed.2d 1 (1987) (quoting Adamson v. Ricketts, 789 F.2d 722, 740 (9th Cir.1986) (Brunetti, J., dissenting)).

III

50

Campbell claims that he received ineffective assistance of trial counsel because his lawyers permitted Campbell to waive his right to be present at the empanelling of the jury. Correctly anticipating that Campbell would claim that his attorneys were ineffective in allowing him to waive his presence, the prosecutor secured, in open court, Campbell's waiver of any claim that counsel was deficient in allowing him to waive his presence at jury selection. 4 We have never addressed whether a defendant may waive the right to claim ineffective assistance of counsel. We reserve that question for another day, because Campbell's counsels' assistance was not ineffective, despite the waiver.

51

To prevail on the claim that his counsel were ineffective because they allowed Campbell to waive presence during the jury selection process, Campbell must demonstrate (1) that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and (2) that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052, 2064 , 80 L.Ed.2d 674 (1984). The proper standard for attorney performance is that of "reasonably effective assistance." Id. The defendant must therefore show that the representation he received "fell below an objective standard of reasonableness." Id. at 688 , 104 S.Ct. at 2064 .

52

Our review of counsel's performance is highly deferential. Id. at 689 , 104 S.Ct. at 2065 . We will neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id.

53

Applying these principles, we have no difficulty concluding that Campbell did not receive ineffective assistance of trial counsel when he decided to waive his right of presence at the jury empanelling. The district court conducted a hearing at which both of Campbell's trial attorneys, Mark Mestel and Anthony Savage, testified. Campbell informed Mestel several days before jury selection began that he did not want to attend. Mestel counseled him against waiving his right of presence. Campbell was emphatic on the issue, and Mestel knew from prior experience that Campbell was unlikely to change his mind. Mestel honored Campbell's request, based on his conclusion that the only way he could maintain a professional relationship with Campbell was to refrain from advocating against Campbell's personal decision to stay in Snohomish County during jury selection.

54

The district court concluded that counsel's representation was not ineffective. We agree. Mestel's decision was motivated by legitimate concerns of preserving a harmonious working relationship with Campbell. We see nothing in Mestel's representation of Campbell that falls below an objective standard of reasonableness. We are also persuaded that, had Mestel argued against allowing Campbell to waive the right of presence, we would be here resolving whether Campbell's counsel were ineffective in not letting him stay in Snohomish County to prepare for trial. That course of events, we believe, would have presented a far greater risk of undermining the relationship between Campbell and his counsel. To the extent that Mestel was forced to choose between two evils, we agree his choice was professionally justified.

IV

55

Campbell claims that Washington's death penalty statute, Wash.Rev.Code 10.95, is unconstitutional. He makes three arguments: First, Campbell argues that the statute creates a mandatory death sentence formula, thereby preventing individualized determination; second, he argues that the statute fails to provide appropriate or reliable standards for the sentencing authority to determine whether to impose the death penalty; and third, Campbell argues that the trial court's instructions to the jury unconstitutionally limited the factors and circumstances the jury could consider in mitigation.

56

* Campbell claims that Washington's death penalty statute imposes a mandatory death penalty formula. He argues that the statute creates an impermissible balancing test that prevents the jury from making an individualized determination of the sentence. The statute provides that the sentence shall be death if the jury finds "beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency." Wash.Rev.Code 10.95.060(4). Section 10.95.070 allows the sentencing authority to consider "any relevant factors" in deciding the question and provides a non-exclusive list of mitigating factors that could merit leniency.

57

Individualized determination in capital sentencing is constitutionally required. Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325 , 96 S.Ct. 3001 , 49 L.Ed.2d 974 (1976). As the Court explained in Woodson,

58

[a] process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.

59

Woodson, 428 U.S. at 304 , 96 S.Ct. at 2991 .

60

Under the individualized sentencing schema, the Court has struck down statutes that provide for a mandatory sentence of death upon conviction of a particular crime, even if narrowly defined, Sumner v. Shuman, 483 U.S. 66 , 107 S.Ct. 2716 , 97 L.Ed.2d 56 (1987), as well as statutes that limit the kinds of mitigating circumstances the sentencing authority may consider, Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978).

61

Campbell's argument that Wash.Rev.Code 10.95 creates a mandatory death penalty formula has no merit. The Supreme Court has repeatedly held "[t]he requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence." Blystone v. Pennsylvania, 494 U.S. 299, 307 , 110 S.Ct. 1078, 1083 , 108 L.Ed.2d 255 (1990) (footnote omitted) (rejecting challenge to death penalty statute that did not preclude the sentencer from considering any type of mitigating evidence); Boyde v. California, 494 U.S. 370, 374-77 , 110 S.Ct. 1190, 1194-96 , 108 L.Ed.2d 316 (1990) (rejecting challenge to death penalty statute providing that "[i]f you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death").

62

In his opening brief on this issue, filed in 1989, Campbell relied on Adamson v. Ricketts, 865 F.2d 1011, 1042-43 (9th Cir.1988), for the proposition that a statute with language similar to that of Wash.Rev.Code 10.95 is unconstitutional. In that case, we held that the language "the court ... shall impose a sentence of death if the court finds one or more of the aggravating circumstances ... and that there are no mitigating circumstances sufficiently substantial to call for leniency" unconstitutional because it created a presumption of death and removed the sentencing judge's discretion. Id. In Walton v. Arizona, 497 U.S. 639, 651-52 , 110 S.Ct. 3047, 3056 , 111 L.Ed.2d 511 (1990), this holding was overturned. 5 The Court reiterated that the Constitution's requirements are satisfied by a provision allowing the sentencer to consider any mitigating factors. Id.

63

We have already held that Wash.Rev.Code 10.95 creates a presumption of leniency. Campbell I, 829 F.2d at 1465 . The statute does not interfere with Campbell's right to an individualized sentence by limiting the discretion of the sentencing authority. Because the jury is free to consider any mitigating factors, the death penalty statute is not a mandatory formula.

B

64

Campbell argues that the Washington death penalty statute is unconstitutional because it fails to provide the sentencing authority with an appropriate and reliable standard for determining whether to impose the death penalty. The district court determined that Campbell had raised this claim in his first petition and that the claim was barred.

65

Controlling weight may be accorded to the denial of a prior petition for habeas corpus where "(1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application." Sanders v. United States, 373 U.S. 1, 15 , 83 S.Ct. 1068, 1077 , 10 L.Ed.2d 148 (1963). Sanders substantially reflects Rule 9(b) of the Rules Governing Habeas Corpus Proceedings. Rule 9(b) provides, in part, that "[a] second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits." A judge may also dismiss a single successive claim within a particular petition.

66

The legal ground asserted here is not new. In his 1985 habeas corpus petition, Campbell urged that the statute was unconstitutional because it failed to adequately channel and guide jury discretion. He now uses the language "appropriate and reliable standard." And he has shifted the focal point of his argument: in his first petition, he relied on the instruction based on Wash.Rev.Code 10.95.070, which provides a non-exclusive list of relevant factors for the jury to consider in mitigation; now he relies on the jury instruction derived from Wash.Rev.Code 10.95.060(4), which requires the jury to decide whether "there are not sufficient mitigating circumstances to merit leniency."

67

In the Sanders analysis, a "ground" is "sufficient legal basis for granting the relief sought." Sanders, 373 U.S. at 16 , 83 S.Ct. at 1077 . A petitioner does not raise a new ground by offering different factual allegations or legal arguments. We are also unpersuaded by Campbell's argument that, in his first petition, he was challenging the statute, while in his second petition, he is challenging the jury instruction; either way, the claim is directed to the jury's understanding of its obligations.

68

Campbell argues that State v. Rupe, 108 Wash.2d 734 , 743 P.2d 210 (1987) (Rupe II), cert. denied, 486 U.S. 1061 , 108 S.Ct. 2834 , 100 L.Ed.2d 934 (1988), effected a change of the law and that the "ends of justice" would be served by a redetermination of issues related to Wash.Rev.Code 10.95.070. We disagree. Rupe II does not represent an intervening change of law. Rather, the court there rejected the defendant's claim that the statute confused the jury. Nor has Campbell presented any other persuasive argument to show that the "ends of justice" would be served by a redetermination of his claim that the Washington death penalty statute is unconstitutional.

C

69

Campbell argues that the jury instructions unconstitutionally limited the facts the jury could consider in mitigation. The challenged jury instruction, taken verbatim from Wash.Rev.Code 10.95.070, provides that the jury may consider "any relevant factors, including but not limited to" eight enumerated factors. Campbell, as noted above, challenged this instruction in his first petition. He argues now, however, that he is raising two new legal grounds. First, he argues that section 10.95.070(2) allows the jury to consider mental disturbance only if it finds the influence to have been "extreme"; and second, he argues that section 10.95.070(6) allows the jury to consider impairment due to mental disease or defect only if it was "substantial."

70

These are not new legal grounds. The district court correctly concluded that Campbell had previously challenged the mitigating-factors instruction. Campbell cannot manufacture a new ground by narrowing his claim to two specific modifiers. He has also failed to demonstrate that the "ends of justice" demand a redetermination.

V

71

We next address Campbell's claims that he has been denied right to counsel and meaningful access to the courts during collateral proceedings. 6

72

Campbell claims that he received ineffective assistance of counsel and was denied meaningful access to the courts in both his state and federal habeas proceedings. He argues that his attorneys were not given adequate time to prepare properly for the collateral attacks on his convictions. He also claims that "meaningful access" to the courts requires not only representation by counsel, but adequate time to prepare. The district court held that counsel's performance satisfied the standard enunciated in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), and that Campbell had meaningful access to the courts.

73

* Two recent Supreme Court decisions directly address and dispose of all but the second element of Campbell's meaningful access argument. In Pennsylvania v. Finley, 481 U.S. 551 , 107 S.Ct. 1990 , 95 L.Ed.2d 539 (1987), the Court held that there is no constitutional right to counsel in state habeas proceedings. Id. at 556-57 , 107 S.Ct. at 1994. The Court reaffirmed this rule in Murray v. Giarratano, 492 U.S. 1 , 109 S.Ct. 2765 , 106 L.Ed.2d 1 (1989), holding that Finley applies in both noncapital and capital cases, and that meaningful access to the courts does not require appointment of counsel. Id. at 12 , 109 S.Ct. at 2271.

74

Because both Finley and Giarratano were decided after Campbell's conviction became final in 1985, we must consider whether Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), prevents their application to Campbell's case. In Teague, the Court held that new constitutional rules of criminal procedure may not be applied retroactively to cases for which direct review had been completed prior to the decision creating the new rule. Id. at 310 , 109 S.Ct. at 1075 (plurality opinion). If the rules announced in Finley and Giarratano are not new, they apply to this case.

75

According to Teague,

76

a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.

77

Teague, 489 U.S. at 301 , 109 S.Ct. at 1070 (citations omitted). In Finley, the Court held that the right to counsel does not extend to post-conviction civil procedures. Finley, 481 U.S. at 555-56 , 107 S.Ct. at 1993-94 . In reaching this conclusion, the Court stated:

78

We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, and we decline to so hold today. Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further.... We think that since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process.

79

Id. at 555 , 107 S.Ct. at 1993 (citations omitted). This language unambiguously indicates that the Court's decision follows directly from its prior holdings. Indeed, the Court relied heavily on its opinion in Ross v. Moffitt, 417 U.S. 600 , 94 S.Ct. 2437 , 41 L.Ed.2d 341 (1974), stating that the analysis in that case "forecloses respondent's constitutional claim." Finley, 481 U.S. at 556 , 107 S.Ct. at 1994 . The rule stated in Finley is a straightforward application of precedent; it broke no new ground. Finley applies retroactively to this case.

80

We reach the same conclusion with regard to Giarratano. There, the Court reaffirmed Finley, holding that it applies to both capital and noncapital cases. Giarratano, 492 U.S. at 12 , 109 S.Ct. at 2271 . A thorough review of the principles and holdings in the Court's previous death penalty cases led the Court to conclude that "these cases require the conclusion that the rule of Pennsylvania v. Finley should apply no differently in capital cases than in noncapital cases." Id. at 10 , 109 S.Ct. at 2770 (emphasis added). It also dismissed the prisoners' argument that the right of meaningful access to the courts, announced in Bounds v. Smith, 430 U.S. 817 , 97 S.Ct. 1491 , 52 L.Ed.2d 72 (1977), required appointment of counsel. Giarratano, 492 U.S. at 4 , 109 S.Ct. at 2767 . The Court explained that the prisoner's proposed rule "rest[ed] on a misreading" of Bounds. Id. We are convinced that Giarratano did not announce a new rule of constitutional jurisprudence, but instead was a direct application and clarification of existing precedent.

B

81

Campbell's ineffective assistance of counsel claim fails under Finley and Giarratano; Campbell had no right to counsel in his federal and state post-conviction proceedings. 7 Giarratano, 492 U.S. at 10 , 109 S.Ct. at 2770 ; Finley, 481 U.S. at 555-56 , 107 S.Ct. at 1993-94 . "Since [he] had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel...." Wainwright v. Torna, 455 U.S. 586, 587-88 , 102 S.Ct. 1300, 1301 , 71 L.Ed.2d 475 (1982). Similarly, Giarratano disposes of Campbell's contention that meaningful access to the courts requires the appointment of counsel. 8 Giarratano, 492 U.S. at 11-12 , 109 S.Ct. at 2771-72 . We reject Campbell's ineffective assistance claim.

C

82

Campbell's second argument is that meaningful access to the courts required the state supreme court to grant counsel adequate time to prepare his post-conviction petitions. Campbell filed his first state personal restraint petition on July 11, 1985. The Washington Supreme Court denied his petition on July 18, 1985, just seven days before his scheduled execution. Campbell's attorneys then filed the first federal habeas petition, and the federal district court granted a stay of execution on July 22, 1985. The district court dismissed the petition because it contained unexhausted claims, and Campbell's attorneys filed an amended petition including only exhausted claims. Despite the dismissal of unexhausted claims, Campbell did not file a concurrent petition in state court raising his unexhausted claims. Campbell's federal petition was ultimately denied, and appellate review of this petition concluded in 1987. See Campbell I, 829 F.2d 1453 (9th Cir.1987). Campbell waited, however, until late 1988 to seek counsel in order to raise his unexhausted claims in a second state personal restraint petition.

83

Campbell alleges that the Washington Supreme Court failed to grant his counsel adequate time to prepare both times he sought state collateral review. This is not the case. The court set a strict filing deadline only with regard to his second state personal restraint petition. 9 In August 1988, almost one year after we affirmed the district court's denial of habeas relief, see Campbell I, 829 F.2d 1453 , Campbell petitioned the Washington Supreme Court to provide him with counsel to assist him in pursuing his unexhausted claims in a second state personal restraint petition. The Washington Supreme Court appointed counsel and directed counsel to file, within five working days, a memorandum demonstrating "that there exists in this matter issues not previously litigated which have sufficient potential merit to require further consideration by this court, and if necessary to permit such consideration, the issuance of a stay." Campbell asserts that this deadline denied him meaningful access to the courts.

84

The Supreme Court has held that the "State must assure the indigent defendant an adequate opportunity to present his claims fairly." Bounds v. Smith, 430 U.S. 817, 823 , 97 S.Ct. 1491, 1495 , 52 L.Ed.2d 72 (1977) (quotation omitted). Although Campbell had no right to counsel under the meaningful access doctrine, his counsel, once appointed, was entitled to a fair chance to represent his client. Given the procedural history of Campbell's case, the Washington Supreme Court satisfied its constitutional obligation under Bounds. In his second state personal restraint action, Campbell's attorneys raised the 40 unexhausted claims dismissed by the district court. Because Campbell's prior counsel had discovered and presented these claims in his first federal habeas petition, Campbell's new counsel did not have the burden of having to search the record for claimed errors. Rather, counsel were afforded seven days to brief the issues already presented in Campbell's 1985 petition. We also note that Campbell was aware for three years that he could raise the unexhausted claims in state court. He had ample time in which to review the record, become familiar with the law, and brief the issues he sought to raise in his second personal restraint petition. Even if Campbell's strategy was to wait to see if this court agreed that the 40 claims were indeed unexhausted, Campbell still had adequate time to prepare, as the appellate review process ended in 1987.

85

In light of the fact that Campbell knew, since 1985, that these claims had yet to be reviewed by the state court, and that the issues had been defined in his first habeas petition, we hold that the state court did not deny Campbell meaningful access by imposing the five-working-day limit in which to file a written memorandum in support of these claims.

VI

86

Campbell claims that the district court denied him an adequate evidentiary hearing on the claims he asserts in his second petition. He also claims that the district court erred in denying his application for a stay. These claims lack merit.

87

In habeas corpus proceedings, an evidentiary hearing is required where the petitioner's allegations, if proved, would establish the right to relief. Townsend v. Sain, 372 U.S. 293, 312 , 83 S.Ct. 745, 756 , 9 L.Ed.2d 770 (1963); Van Pilon v. Reed, 799 F.2d 1332, 1338 (9th Cir.1986). An evidentiary hearing is not required on allegations that are "conclusory and wholly devoid of specifics." Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir.1970). Nor is an evidentiary hearing required on issues that can be resolved by reference to the state court record. Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.), cert. denied, 469 U.S. 838 , 105 S.Ct. 137 , 83 L.Ed.2d 77 (1984).

88

Campbell was granted an evidentiary hearing by the district court. The Washington Supreme Court issued its decision denying Campbell's personal restraint petition and motion for a stay of execution on March 23, 1989. State v. Campbell, 112 Wash.2d 186 , 770 P.2d 620 (1989). The next morning, the federal district court held a status conference to determine whether Campbell intended to file an application for a stay of execution and a petition for a writ of habeas corpus. The execution was scheduled for March 30, 1989.

89

Counsel for Campbell advised the district court that they would file an application for a stay and a habeas petition on the morning of March 27. The district court requested that Campbell be transported to the court for proceedings on March 27, and recommended that counsel be prepared for an evidentiary hearing. The petition and application for a stay were filed March 27, and the district court conducted an evidentiary hearing. The district court heard testimony from Campbell's state trial and appellate counsel, as well as from three other witnesses.

90

Campbell argues that this evidentiary hearing was inadequate. We do not agree. Although Campbell's attorneys had a limited amount of time to prepare for the hearing, they adequately developed the record concerning whether Campbell received ineffective assistance of counsel. The district court did not in any way limit Campbell's ability to present evidence on any or all of his claims. Such expedited procedures are not improper. Barefoot v. Estelle, 463 U.S. 880, 895 , 103 S.Ct. 3383, 3395 , 77 L.Ed.2d 1090 (1983). We note, in this regard, that the Supreme Court remarked upon this hearing as follows: "The [district] court acted with commendable dispatch, holding a hearing and issuing a written opinion denying a stay or other relief within days after the second petition was filed." In re Blodgett, --- U.S. ----, ----, 112 S.Ct. 674, 675 , 116 L.Ed.2d 669 (1992) (per curiam).

91

Nor was Campbell prejudiced by the district court's expedited hearing schedule. Our holding today that Campbell knowingly and voluntarily waived his right to be present at the empanelling of the jury obviates the need for further evidence on whether his absence affected the outcome of the trial. The district court extended Campbell an opportunity to develop the factual record on every other claim that required an evidentiary hearing.

92

Campbell also alleges that he was denied an opportunity to present evidence on the issues he raises with respect to judicial hanging. We need not address whether Campbell was entitled to an additional opportunity to present evidence to the district court in March of 1989. It is clear from the record that the district court did not deny him such an opportunity. Our decision pending this appeal to grant a limited remand to the district court for the purpose of conducting such a hearing provides us a full record with respect to all disputed facts. See, Campbell v. Blodgett, 992 F.2d 984 (9th Cir.1993) (denying reconsideration of remand order).

93

Campbell also claims that the district court erred in denying his application for a stay of execution. Where the district court has denied a stay of execution, but issued a certificate of probable cause, the petitioner "must then be afforded an opportunity to address the merits, and the court of appeals is obligated to decide the merits of the appeal." Barefoot, 463 U.S. at 893-94 , 103 S.Ct. at 3395 . In order to afford Campbell the opportunity to address the merits of the appeal, we issued an indefinite stay of execution pending appeal. See id. This issue is moot.

VII

94

Campbell challenges the constitutionality of hanging under the Washington death penalty statute, Wash.Rev.Code 10.95.180(1). The statute provides that "[t]he punishment of death ... shall be inflicted either by hanging by the neck or, at the election of the defendant, by [lethal injection]." Campbell raises three questions with respect to judicial hanging as prescribed in the Washington statute:

95

(1) Whether execution by hanging violates per se the Eighth Amendment because it is cruel and unusual punishment;

96

(2) Whether the direction that the condemned be hanged unless he elects lethal injection is cruel and unusual punishment; and

97

(3) Whether the direction that the condemned be hanged unless he elects lethal injection violates Campbell's First Amendment free exercise rights by compelling him to participate in his own execution to avoid hanging.

98

The State argues that these claims are not justiciable. We reject this argument, and address each of Campbell's specific claims.

99

* The exercise of judicial power is limited to cases and controversies. U.S. Const. art. III, Sec. 2. The concept of a case or controversy "implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication." Muskrat v. United States, 219 U.S. 346, 357 , 31 S.Ct. 250, 254 , 55 L.Ed. 246 (1911) (quoting In re Pacific Ry. Comm'n, 32 F. 241, 255 (C.C.Cal.1887)). A justiciable controversy is definite, concrete, real, and substantial; it is subject to specific relief. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 , 57 S.Ct. 461, 463-64 , 81 L.Ed. 617 (1937). A controversy is not justiciable if it is hypothetical, abstract, academic, or moot. Id. at 240 , 57 S.Ct. at 463 . If the relief available would be "an opinion advising what the law would be upon a hypothetical state of facts," the controversy is not justiciable. Id. at 241 , 57 S.Ct. at 464 .

100

The State argues that Campbell's claims are non-justiciable because he has the power to choose a form of execution that would render this controversy moot. A case is rendered moot "by an act of the parties, or a subsequent law." United States v. Alaska S.S. Co., 253 U.S. 113, 116 , 40 S.Ct. 448, 449 , 64 L.Ed. 808 (1920). Mootness is caused by an act, not by the apprehension of a potential act. If the State's logic were accepted, an entire universe of claims would be foreclosed because a party might, in the future, adopt a course of action that would moot the controversy.

101

The State's focus on Campbell's ability to choose lethal injection is misplaced. In Dear Wing Jung v. United States, 312 F.2d 73, 75-76 (9th Cir.1962), we rejected the argument that the government may cloak unconstitutional punishments in the mantle of "choice." We held that voluntary, permanent departure from the United States as a condition of suspending a sentence was either cruel and unusual punishment or a denial of due process. The condition did not escape review on the ground that the defendant could choose the constitutional punishment of a prison term. We have also, on many occasions, considered the constitutionality of probation conditions, although in those cases as well, the defendant could have chosen to remain incarcerated. E.g., United States v. Terrigno, 838 F.2d 371, 374 (9th Cir.1988) (considering whether probation condition violated defendant's First Amendment rights); United States v. Consuelo-Gonzalez, 521 F.2d 259, 264 (9th Cir.1975) (considering whether probation condition violated defendant's Fourth Amendment rights).

102

Campbell is able to choose lethal injection, but he has not done so. As the State conceded at oral argument, Campbell has consistently maintained that he will not exercise his power to choose. See, e.g., State v. Campbell, 770 P.2d at 623 ; Petition for Rehearing at 15. His refusal to exercise the option of lethal injection ensures that Campbell's death warrant will be fulfilled by judicial hanging. This case therefore presents a real dispute between adverse parties on a definite set of facts. We conclude that Campbell's claims regarding execution by hanging are justiciable.

B

103

Campbell claims that execution by hanging violates per se the Eighth Amendment. We remanded this case to the district court for the limited purpose of holding an evidentiary hearing on this claim. The factual findings of the district court will be set aside only if they are clearly erroneous. Anderson v. City of Bessemer, 470 U.S. 564, 573 , 105 S.Ct. 1504, 1511 , 84 L.Ed.2d 518 (1985). We review mixed questions of fact and law de novo. United States v. Spokane, 918 F.2d 84, 86 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2888 , 115 L.Ed.2d 1053 (1991). We review questions of law de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 , 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984).

104

(1)

105

The Eighth Amendment prohibits "cruel and unusual punishments." The language derives from the English Bill of Rights of 1689, which states that "excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." See Furman v. Georgia, 408 U.S. 238, 243-44 , 92 S.Ct. 2726, 2729 , 33 L.Ed.2d 346 (1972) (Douglas, J., concurring). The proscription of cruel and unusual punishments has been attributed to reaction to barbaric, torturous punishments imposed by the Stuarts, see Furman, 408 U.S. at 253-55 , 92 S.Ct. at 2733-35 (Douglas, J., concurring), and to illegal punishments (such as defrocking) imposed by the King's Bench, see Anthony F. Grannucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Cal.L.Rev. 839, 858-60 (1969). Either way, "there is no doubt whatever that in borrowing the language and in including it in the Eighth Amendment, our Founding Fathers intended to outlaw torture and other cruel punishments." Furman, 408 U.S. at 319 , 92 S.Ct. at 2767 (Marshall, J., concurring).

106

The Clause has historically been interpreted to forbid such " 'punishments of torture' " as disembowelment, beheading, quartering, burning at the stake, and breaking at the wheel. Furman, 408 U.S. at 264-65 , 92 S.Ct. at 2739 (Brennan, J., concurring) (quoting Wilkerson v. Utah, 99 U.S. 130, 135 , 25 L.Ed. 345 (1878)). The Supreme Court has rarely, however, addressed whether particular methods of execution employed in this country are unconstitutionally cruel. Judicial hanging was last directly addressed by the Court in 1878, in Wilkerson. The Court there specifically distinguished between various punishments of torture and hanging, the traditional method of execution at common law. Wilkerson, 99 U.S. at 135-37 ; see also In re Kemmler, 136 U.S. 436 , 10 S.Ct. 930 , 34 L.Ed. 519 (1890) (upholding electrocution as method of execution); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 , 67 S.Ct. 374, 376 , 91 L.Ed. 422 (1947) (upholding second attempt at electrocution after first attempt failed to cause death); but see Glass v. Louisiana, 471 U.S. 1080 , 105 S.Ct. 2159 , 85 L.Ed.2d 514 (1985) (Brennan, J., dissenting).

107

Recent decisions construing the Eighth Amendment focus on whether the sentence constitutes "one of 'those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted,' " Stanford v. Kentucky, 492 U.S. 361, 368 , 109 S.Ct. 2969, 2974 , 106 L.Ed.2d 306 (1989) (quoting Ford v. Wainwright, 477 U.S. 399, 405 , 106 S.Ct. 2595, 2599 , 91 L.Ed.2d 335 (1986)), and on whether the punishment is contrary to "the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 101 , 78 S.Ct. 590, 598 , 2 L.Ed.2d 630 (1958). There is no dispute here that execution by hanging was acceptable when the Bill of Rights was adopted. See Wilkerson, 99 U.S. at 133-34 .

108

The more difficult question is whether hanging comports with contemporary standards of decency. In addressing this issue, we note that neither the state officials, nor Campbell, nor our own research has revealed a single decision holding that imposition of the death penalty by hanging is cruel and unusual punishment within the contemplation of the Eighth Amendment.

109

To determine whether hanging is unconstitutionally cruel and unusual, we look to objective factors to the maximum extent possible. Stanford, 492 U.S. at 369 , 109 S.Ct. at 2974 (quoting Coker v. Georgia, 433 U.S. 584, 592 , 97 S.Ct. 2861, 2866 , 53 L.Ed.2d 982 (1977) (plurality opinion)). Among these factors are statutes passed by society's elected representatives. Id., 492 U.S. at 370, 109 S.Ct. at 2975 (citing McCleskey v. Kemp, 481 U.S. 279, 300 , 107 S.Ct. 1756, 1771 , 95 L.Ed.2d 262 (1987)). We presume that a punishment selected by a democratically elected legislature is constitutionally valid. Gregg v. Georgia, 428 U.S. 153, 175 , 96 S.Ct. 2909, 2926 , 49 L.Ed.2d 859 (1976). "We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved." Id. at 175 , 96 S.Ct. at 2926.

110

Campbell relies heavily on the trend among several states in recent years to replace hanging with other methods of execution, chiefly lethal injection. See, e.g., DeShields v. State, 534 A.2d 630, 639 (Del.1987). Currently, two states, Washington and Montana, provide for execution by hanging. Wash.Rev.Code 10.95.180(1); Mont.Code Ann. Sec. 46-21-103(3) (1987). Campbell relies on Coker, 433 U.S. 584 , 97 S.Ct. 2861 , and Enmund v. Florida, 458 U.S. 782 , 102 S.Ct. 3368 , 73 L.Ed.2d 1140 (1982), for the proposition that when the number of states exacting a given punishment dwindles, the punishment drops beneath the constitutional floor.

111

Coker and Enmund do not dictate the result Campbell urges. Those cases concern the proportionality of the death penalty to the crimes of conviction, 10 as opposed to the method of execution. The distinction is critical. On the one hand, proportionality review entails examination of the actions both of state legislatures and of sentencing juries to determine contemporary standards of decency. See, Thompson v. Oklahoma, 487 U.S. 815, 821-22 , 108 S.Ct. 2687, 2691-92 , 101 L.Ed.2d 702 (1988); McCleskey, 481 U.S. at 300 , 107 S.Ct. at 1771 . On the other hand, methodology review focuses more heavily on objective evidence of the pain involved in the challenged method. See, e.g., Glass v. Louisiana, 471 U.S. at 1084 , 105 S.Ct. at 2162 (Brennan, J., dissenting) (noting that "[f]irst and foremost" among the "objective factors by which courts should evaluate the constitutionality of a challenged method of punishment" is whether the method involves " 'the unnecessary and wanton infliction of pain.' " (Citation omitted.)) 11 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. 12

112

We do not consider hanging to be cruel and unusual simply because it causes death, or because there may be some pain associated with death. "Punishments are cruel when they involve torture or a lingering death...." In re Kemmler, 136 U.S. 436, 447 , 10 S.Ct. 930, 933 , 34 L.Ed. 519 (1890). As used in the Constitution, "cruel" implies "something inhuman and barbarous, something more than the mere extinguishment of life." Id. "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely." Resweber, 329 U.S. at 464 , 67 S.Ct. at 376 . Campbell is entitled to an execution free only of "the unnecessary and wanton infliction of pain." Gregg v. Georgia, 428 U.S. 153, 173 , 96 S.Ct. 2909, 2925 , 49 L.Ed.2d 859 (1976) (plurality opinion).

113

Campbell does not argue that the punishment of death is disproportional to the crimes of which he was convicted. Our focus is therefore on whether the method of execution involves the unnecessary and wanton infliction of pain. We hold that it does not.

114

(2)

115

Death by hanging occurs when a ligature encircling the neck is tightened by the weight of the body. Pathologists distinguish between four types of hangings: accidental, suicidal, homicidal, and judicial. Suicides account for the vast majority of hangings, but they do not generally employ the same methods as are used in judicial hanging.

116

Washington conducts judicial hanging according to Field Instruction WSP 410.500 (hereafter "Field Instruction"), a detailed methodology derived from U.S. Army Regulation No. 633-15, Procedure for Military Executions (1959). Under the Washington protocol, the rope must be between three-quarters and one-and-one-quarter inches in diameter. Field Instruction at p VI.G.3.a(3)(d). The rope is boiled and then stretched to eliminate most of its elasticity. Id. The rope is then coated with wax or oil so that it will slide easily. Id. The Instruction provides a diagram for knotting the rope properly. Id. (Attachment B.)

117

Washington employs a "long-drop" method of hanging, in which the condemned is dropped a particular distance based on the prisoner's weight. The Instruction provides a chart for determining the distance of the drop. Field Instruction at p VI.G.3.a(2). The purpose of the drop, as set out in more detail below, is to ensure that forces to the neck structures are optimized to cause rapid unconsciousness and death.

118

The district court heard live and deposition testimony from several pathologists and other witnesses with specific knowledge of hangings, judicial and otherwise. The testimony focused on several issues, including the mechanisms causing unconsciousness and death in a judicial hanging; the effect of various factors, including the length of the drop, the elasticity of the rope, and the placement of the knot; the risks of death by asphyxiation and decapitation, as opposed to death by injury to vascular, spinal, and nervous functions; and the execution of Westley Allan Dodd, which was conducted according to the Washington protocol.

119

The testifying pathologists described various mechanisms involved in death by judicial hanging. These include: (1) occlusion of the carotid arteries, (2) occlusion of the vertebral arteries, (3) occlusion of the jugular veins, (4) reflexive cardiac arrest, (5) occlusion of the airway, (6) tearing, transection, trauma, or shock to the spinal cord, (7) fracture or separation of the cervical spinal column, (8) interruption of the odontoid process, and (9) irreversible brainstem damage. These various mechanisms can, and probably do, occur in concert; thus, there is no single "pathway" to death by judicial hanging. And as the research of one of the testifying pathologists indicates, the legendary "hangman's fracture" is one of the less common routes to unconsciousness and death. 13

120

The evidence demonstrates that, in general, interruption of vascular, spinal, or nervous functions by the mechanisms listed above results in rapid unconsciousness and death. For example, Dr. Donald Reay testified that occlusion of the carotid arteries alone causes a loss of consciousness within six to ten seconds. 14 Similarly, Dr. Ross Zumwalt testified that a severe trauma to the upper spinal cord would cause an instantaneous loss of consciousness and very rapid loss of life. On the other hand, if the sole pathway involved is occlusion of the airway, consciousness may persist for over a minute. Dr. Deryk ("Ryk") James testified that unconsciousness solely due to asphyxiation would take between a minute and a minute-and-a-half, but no longer than two minutes.

121

Although there is no way to predict with a high degree of accuracy which of the various mechanisms will contribute to unconsciousness and death in any given hanging, there are methods of increasing the likelihood that unconsciousness will be rapid and death comparatively painless. Chief among these is the length of the drop.

122

Judicial hanging did not always involve a drop. As Dr. James testified, the Anglo-Normans in the eleventh century placed a noose around the neck of the condemned, slung the other end of the rope over a beam, and hauled the person up. Later, executioners used ladders to reach the beam, and the condemned would be led up the ladder and then "turned off" it. The practice of dropping the condemned some distance did not develop until the late eighteenth century. At first, the drop was very short, no more than a foot or two. Executioners in England persisted with the short drop in the nineteenth century, while the Irish developed a long-drop method employing drops of up to seventeen feet. See generally Ryk James & Rachel Nasmyth-Jones, The Occurrence of Cervical Fractures in Victims of Judicial Hanging, 54 Forensic Science Int'l 81, 85-91 (1992). In the 1880s, the English studied the relative merits of the short and long drop, and concluded a long drop was more humane. See Report of the Committee Appointed to Inquire into the Execution of Capital Sentences (1886).

123

Appropriate drop distance is critical to conducting judicial hanging in the most humane way possible. If the drop is too short in relation to the weight of the prisoner, death is likely to result from the mechanism of airway occlusion; that is, the condemned will asphyxiate. If the drop is too long in relation to weight, death may result from decapitation. Between these two extremes, drop lengths are highly likely to cause death by some combination of vascular, spinal, and nervous mechanisms. This ensures that the condemned loses consciousness within a matter of a few seconds and dies rapidly thereafter. The Washington Field Instruction provides appropriate drop lengths based on weight to cause rapid unconsciousness and death.

124

A second important factor in bringing about a swift and painless death is the selection and treatment of the rope. Washington uses rope of a diameter between three-quarters and one-and-one-quarter inches. The evidence presented to the district court indicates that a very slender ligature is more prone to break the skin, increasing the chances of partial or complete decapitation. A thicker ligature is less likely to do so. More importantly, by treating the rope to reduce elasticity, the Washington protocol guarantees that the kinetic energy caused by the drop will be quickly transferred to and borne by the neck structures, rather than simply being absorbed by the rope. Finally, treating the surface of the rope to reduce surface friction allows the rope to slide easily and tighten about the neck. Several witnesses testified that applying pressure all the way around the neck was an important factor in causing rapid unconsciousness. 15

125

A third factor bearing on whether unconsciousness and death are rapid and painless is the positioning of the knot. The Washington protocol specifies positioning the knot below the left ear. This subaural position ensures that energy from the drop is transferred to the spinal structures and that the carotid and vertebral arteries will likely be occluded. The evidence showed that placing the knot below the chin (submentally) would also transfer energy to the spinal structures.

126

Washington has conducted one judicial hanging according to the Field Instruction. On January 5, 1993, Washington executed Westley Allan Dodd. The district court heard extensive testimony related to the conduct of the execution and the mechanisms contributing to Dodd's death. At the State's request, Dr. William Brady witnessed Dodd's execution and pronounced Dodd's death. Dr. Brady testified that

127

[w]hen Mr. Dodd's body dropped through the trap door there simply was no significant activity, there was no twisting, turning, no swinging. I carefully observed his chest and abdomen and I believe that there was one minimal effort at inspiration, breathing in, and following that, within several seconds, there may have been a small second inspiratory action.

128

Dr. Brady then watched Dodd's body for between 60 and 120 seconds. He then entered the execution chamber to approach the body and pronounce death. Dr. Reay performed an autopsy on Dodd. He concluded that the cause of Dodd's death was massive hemorrhaging occurring at the base of the brain from tears in the vertebral arteries, and the "energy wave which was delivered to the spinal cord, namely, spinal shock." Dr. Reay stated his opinion that Dodd became unconscious within a matter of seconds of being dropped.

129

(3)

130

Campbell challenges several of the district court's evidentiary rulings. We review the district court's evidentiary rulings for abuse of discretion. United States v. Catabran, 836 F.2d 453, 456 (9th Cir.1988).

131

The district court excluded several items of evidence offered by Campbell to show that judicial hangings have been "bungled" in the past, resulting in either decapitation or asphyxiation. Evidence excluded by the district court included (1) several photos of the 1901 New Mexico execution of "Black Jack" Ketchum, clearly showing that Ketchum was decapitated; (2) two newspaper accounts of the execution of Richard Quinn in 1910, stating that Quinn was asphyxiated and "pleaded pitifully with attendants to take him up and spring the drop again"; (3) the former testimony of the late Clinton Duffy, who, as warden of San Quentin prison in California, witnessed a judicial hanging which resulted in asphyxiation; and (4) a collection of research materials compiled by Watt Espy, Jr., detailing executions dating from the 1600s.

132

Federal Rule of Evidence 401 defines relevant evidence as that which tends to make the existence of a fact of consequence more or less probable than it would be without the evidence. Rule 403 permits the exclusion of relevant evidence on the grounds of prejudice, confusion of issues, misleading qualities, or delay. Having found that Washington relies on a specific protocol for judicial hanging, the district court excluded evidence that could not be reliably compared to Washington's method. The district court excluded evidence of hangings for which there was no account of the weight of the prisoner, the length of the drop, and the width of the rope.

133

Campbell argues that, for some of the "bungled" execution accounts he offered, certain information was available or could be deduced or estimated. For instance, the Ketchum photos permit a rough approximation of the length of the drop and perhaps the width of the rope. Such evidence could arguably have been admitted under Rule 401. The district court did not, however, abuse its discretion in excluding the evidence under Rule 403. The district court committed no error in concluding that its role under our remand order was to determine whether judicial hanging only as it is performed in Washington is cruel and unusual punishment. The district court was not required to consider evidence of hangings of marginal relation to hanging according to the Washington protocol. Even if we were persuaded that the evidence should have been admitted, we would find no prejudice here. The district court concluded that, even had it considered the proffered evidence, its ultimate findings would not have been changed.

134

Campbell argues that he should not be saddled with so difficult a burden of proof because there is an extreme paucity of evidence meeting the criteria established by the district court. He asserts that the limitations imposed by the district court leave him with a sample of one, the Dodd execution, with which to prove his case that hanging is unnecessarily painful. We do not agree. First, to the extent that Campbell argues that the State has destroyed or spoliated evidence, he misconstrues the record. The State's failure, until recently, to conduct autopsies of judicially hanged prisoners is neither the destruction nor the spoliation of evidence. 16 See Akiona v. United States, 938 F.2d 158, 161 (9th Cir.1991) (destruction of records cannot serve as basis for shifting burden of proof absent showing that the party was on notice of the records' potential relevance to litigation), cert. denied, --- U.S. ----, 112 S.Ct. 1567 , 118 L.Ed.2d 212 (1992). Campbell is not entitled on this basis to shift the burden of proof to the state officials. Second, Campbell could, and did, present evidence tending to undermine the state officials' argument that death by either asphyxiation or decapitation is all but impossible under the Washington protocol. That Washington has performed only one execution under its protocol left Campbell and the state officials on exactly the same footing with respect to proof of the method's effectiveness. We cannot say that Campbell was unfairly prejudiced by the district court's refusal to admit evidence of other judicial hangings.

135

Campbell also argues that the district court erred in admitting Dr. Reay's testimony related to the "carotid sleeper hold." The "carotid sleeper hold" involves applying pressure to the carotid arteries by lodging the subject's neck between the upper arm and forearm of the person performing the hold. The airway is not occluded, because it is in the crook of the bent arm. The sleeper hold causes unconsciousness by occluding the carotid arteries. Campbell argues the testimony was irrelevant because the hold bears no resemblance to judicial hanging. The state officials did not argue, however, that the sleeper hold is akin to judicial hanging. The testimony demonstrated only how long a subject remains conscious when the carotid arteries are occluded. The district court did not abuse its discretion in admitting the testimony for this purpose.

136

Campbell argues that the district court erred in excluding any evidence related to execution by lethal injection. The remand order under which the district court conducted the evidentiary hearing provided that the evidentiary hearing was to be limited to the issue of whether hanging is cruel and unusual punishment. The district court interpreted our remand order precisely as it was intended. The issue we address in response to Campbell's claim is whether judicial hanging according to the Washington protocol involves the unnecessary and wanton infliction of pain. The relative merits of lethal injection are irrelevant to this question.

137

(4)

138

The district entered findings that judicial hanging conducted according to the Washington Field Instruction is not cruel and unusual punishment. The court found that the mechanisms involved in bringing about unconsciousness and death in judicial hanging occur extremely rapidly, that unconsciousness was likely to be immediate or within a matter of seconds, and that death would follow rapidly thereafter. The court found that the risk of death by decapitation was negligible, and that hanging according to the protocol does not involve lingering death, mutilation, or the unnecessary and wanton infliction of pain. We find no error in these findings. The evidence fully supports the district court's findings of fact.

139

Campbell charges that judicial hanging poses an unacceptable risk of causing death by either asphyxiation or decapitation. We reject this argument. Campbell failed to establish that the risk of either result is more than slight. 17 He has also failed to demonstrate that the presence of a slight risk of decapitation or asphyxiation renders judicial hanging unconstitutionally cruel. We reiterate that Campbell is not entitled to a painless execution, but only to one free of purposeful cruelty. Resweber, 329 U.S. at 464 , 67 S.Ct. at 376 . The risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.

140

We hold that judicial hanging, as conducted under the Washington Field Instruction, does not involve the wanton and unnecessary infliction of pain, and therefore does not violate the Eighth Amendment.

C

141

Campbell claims that his First and Eighth Amendment rights are violated by the statutory provision that allows him to elect death by lethal injection rather than by hanging. We reject both these claims.

142

Campbell's First Amendment challenge is premised on the Free Exercise Clause. He contends that his religious beliefs preclude him from participating at any level in his own execution, and that these beliefs are infringed upon by Wash.Rev.Code 10.95.180, which allows him to elect lethal injection and avoid death by judicial hanging.

143

We see no infringement upon Campbell's free exercise of his religious beliefs. We agree with Campbell that a statute providing for a choice between two methods of execution, one constitutional and the other unconstitutional, might place an impermissible burden on the free exercise of the asserted beliefs. See Frazee v. Illinois Dep't of Employ. Security, 489 U.S. 829, 832 , 109 S.Ct. 1514, 1516 , 103 L.Ed.2d 914 (1989). This is not, however, the situation here.

144

First, Campbell is not required to make any choice or to participate in the selection of the method to be employed in his execution. He may remain absolutely silent and refuse to participate in any election. The statute provides for imposition of the death penalty by hanging, and does not require him to choose the method of his execution. Second, as described above, we hold today that judicial hanging, as conducted according to the Washington protocol, is not an unconstitutional method of execution. The statute does not compel Campbell to compromise one constitutional right to avoid the infringement of another.

145

Campbell also argues that the statutory provision of an option for death by lethal injection constitutes cruel and unusual punishment. We need not, and do not, address whether lethal injection is a constitutional method of execution, as Campbell has consistently refused to exercise the option, and does not claim that lethal injection is unconstitutional. Campbell faces a heavy burden in attempting to show that the existence of an option related to his execution is cruel and unusual. See Gregg, 428 U.S. at 175 , 96 S.Ct. at 2926 . We cannot say the State descends to inhuman depths by allowing the condemned to exercise such an election. We believe that benefits to prisoners who may choose to exercise the option and who may feel relieved that they can elect lethal injection outweigh the emotional costs to those who find the mere existence of an option objectionable.

VIII

146

Campbell claims in his petition that in Washington there is no person employed or retained by the State who is qualified to conduct a judicial hanging. He relies in part on Justice Dolliver's statement in State v. Frampton, 95 Wash.2d 469 , 627 P.2d 922, 936 (1981), that "[i]t is uncontested that there are no trained hangers at the Washington State Penitentiary, nor are the prison authorities aware of any in the United States."

147

Washington's adoption of the Field Instruction renders the employment of a "trained hanger" unnecessary. The Field Instruction provides that

148

[t]he Superintendent will appoint and provide a briefing to those individuals as required to implement the Execution process. No individual will be required to participate in any part of the execution procedure.

149

Field Instruction p VI.G.2.a. The Instruction provides for rehearsals of all phases of the execution, up to the springing of the door. Superintendent Tana Wood testified that the prison officials conducted many rehearsals of the Dodd execution. The state officials' reliance on the Field Instruction to perform judicial hanging obviates the need for employing a specific person trained to perform the execution. We therefore reject Campbell's claim as moot.

IX

150

When the clerk of this court shall issue the mandate in this case, the stay of execution pending appeal shall be of no further force and effect.

151

We affirm the district court's denial of Campbell's second petition for a writ of habeas corpus in its entirety.

152

AFFIRMED.

APPENDIX A

153

AFTERNOON SESSION (OCTOBER 21, 1982, 4:20 P.M.)

154

MR. MESTEL: Your honor, there is another matter. I don't know if you want to do this on the record or not, but, in an abundance of caution, I think probably we should.

155

My client would like to waive his presence at the jury selection and remain in Snohomish County. He is under a lot of stress and tension and he does not think it is necessary for him to attend the jury selection. He is willing to waive his presence in open court. He has fears, legitimate fears, as to the treatment he will receive from the custodial officers and inmates in Spokane and he would prefer to stay here and concentrate on the trial and his future.

156

THE COURT: This is preliminary. There is no point in addressing myself to Mr. Campbell's obtaining such a waiver if I won't allow it so I will hear from the prosecutor as to whether you think it is proper and appropriate. I would hear your comments and observations.

157

MR. ROCHE: I don't know if it is proper. I think it would have to be done in writing, I would imagine, to be considered proper in a death penalty case not to have the defendant there.

158

It sounds to me like ... It seems to me that Mr. Campbell had expressed an interest throughout this trial in being here, no matter what was happening. It just strikes me as very ... extremely odd at this point that now he says, at the most critical stage of this case, the jury selection, where you are going to have 12 people who are going to decide whether he lives or dies, and he doesn't want any input into it.

159

As we have seen--I am concerned. We have seen so many games played by the defendant, I think it is just another game.

160

MR. MESTEL: The tendency--no matter what I request, the State just objects.

161

THE COURT: I'm not all that much surprised Mr. Mestel, as to their reaction. Admittedly, the things you've asked are unique and come as a surprise to anyone. Any time we are asking for anything out of the ordinary ... We do not like change and automatically resist change.

162

I see a number of reasons why, if he makes an intelligent waiver, I would not believe it could be the subject of appellate review. It shouldn't be regarded as reversible, I shouldn't think. Expense and manpower would be a consideration.

163

I grant you this is unique. It has not happened in my experience before. That, in and of itself, is no reason for me to automatically say no. Again, we've had a bombshell.

164

Let's do it this way. I will address myself to Mr. Campbell and satisfy myself that he knows what he is doing. I might want you to reduce it to writing, and the fact that I have done this doesn't necessarily mean I will allow it. But at least I will consider it over the evening and reflect on it and maybe sometime tomorrow I will give you ten minutes, if anybody can come up with any constitutional prohibition or something that would necessarily cause it to be the subject of appellate review or reversal.

165

The only thing I would ask you to keep in mind is that the State frequently tries many people in absentia who are ungovernable, and if the jury came in and he was ungovernable, that would be conduct for which he would be removed from the proceedings. I suppose that might be considered an invitation to be ungovernable and get sent back.

EXAMINATION BY THE COURT

166

Q Mr. Campbell, your attorney has said that you would prefer to remain in Snohomish County while we are selecting a jury in Spokane County. Is that Right [sic]?

167

A Yes, it is.

168

Q Are you fully aware of the fact that you do have a right to be present while a jury is selected?

169

A I do.

170

Q I would assume it might be a constitutional right, and if my memory is correct, unless leave is granted by the court rules, the defendant must be present at all stages of the proceedings, unless he voluntarily absents himself or--generally, along those lines.

171

You do have a right to be present while a jury is being selected.

172

A I understand that.

173

Q And if you stay here and a jury is picked over there, you won't be present to hear the questions your attorney asks of the jurors. You may hear those questions later and you may be of the opinion that you wished they had asked other questions. You will not be present to supply them with questions.

174

Do you understand that?

175

A Yes, I do.

176

Q You may look at the jurors and say, "Those aren't the type of jurors I would have wanted my lawyers to pick if I had been there."

177

You would waive any right to have any input whatsoever in the jury selection process, other than what you can tell your attorneys ahead of time. Are you aware of that?

178

A Yes, I am.

179

Q And you are willing to submit the issues in this case, which may well be your guilt or innocence and may be your life or your death, to 12 people who you have no choice in selecting and no part in selecting with--were not even present while they were selected?

180

A Yes.Q You are still willing to waive your right to be present during the selection of the jurors?

181

A I am.

182

THE COURT: Mr. Roche, again, I have not made a decision, but are there any questions you feel I should put to Mr. Campbell?

183

MR. ROCHE: I can't think of any other questions. I still think the defense is setting another trap in this case.

184

THE COURT: That is one of the things I want to think about over the evening and I will give you an opportunity to think about it also.

185

MR. CAMPBELL: Your Honor, I answered your questions and I would like to speak my own reasons as to why I want this. I've a lot of confidence ...

186

MR. MESTEL: Fine with me.

187

MR. CAMPBELL: I have a lot of confidence in Mr. Mestel and Mr. Savage going over there. They do that for a living. I am trying to prepare myself for my part in the trial and I am trying to relax and get my head together.

188

What I am doing ... I feel like going to Spokane will be a real inconvenience. It's going to be a long ride. I will be cut off from things over here. I will spend all day in court, going through that kind of stuff. My time will be limited and I will not be able to prepare things I am working on right now. It is my decision to stay here in Snohomish County so that I can accomplish that.

189

THE COURT: You mentioned something I had not thought of. While they are in Spokane and they are selecting a jury, you would be somewhat cut off from your attorneys. You wouldn't be with them all day or see them at night. I don't know how long jury selection may be. It may be a week, it may be longer, or it may be shorter. You would have limited contact with your attorneys during that period of time.

190

MR. CAMPBELL: I understand what you're saying. What I am talking about, I wouldn't have the opportunity that I need to be preparing myself in a relaxed atmosphere.

191

THE COURT: I won't argue with you. I wanted you to understand that if they are over selecting a jury, you will have less contact with your attorneys than you would if you were also over there in the process of jury selection.

192

MR. CAMPBELL: I understand that.

193

THE COURT: YOu [sic] still prefer to stay here?

194

MR. CAMPBELL: I do.

195

THE COURT: If you will prepare something in writing, I will sign it. You might as well do that, anyhow, Mr. Mestel, and then I will sign that tomorrow sometime.

MORNING SESSION (OCTOBER 22, 1982, 9:30 A.M.)

196

THE COURT: Once again, the State of Washington vs. Campbell. The record should reflect Mr. Campbell is present in court, along with his attorney, Mark Mestel, and Jim Roche, here on behalf of the State.

197

The primary purpose of this hearing this morning is to determine whether or not Mr. Campbell's request to waive his presence during jury selection will be granted. I've one additional question I'd like to put to Mr. Campbell because the thought had occurred to me over the evening.

198

Mr. Campbell, one other question. It is difficult for me to say that your waiver of right to appear during jury selection is an irrevocable waiver. I don't know whether it is or not. I don't know how an appellate court might treat that, but, in any event, if we get over there Monday and we start on jury selection and you change your mind, as a purely practical matter, it would be difficult, if not impossible, to arrange to have you brought over to sit through the rest of the process. So I think that, as a practical matter, if I approve this waiver, it probably is irrevocable and you wouldn't be allowed to change your mind.

199

Do you appreciate that?

200

MR. CAMPBELL: Yeah, I do.

201

THE COURT: Are you still willing to waive your right to appear, knowing if you want to change your mind, probably nothing could be done about it?MR. CAMPBELL: I am.

202

MR. ROCHE: Your Honor, one practical consideration. One of the first things the Court always does in a trial is introduce the parties and counsel and ask the jury if they know any of these people. How will we get by that?

203

THE COURT: The same way we do in every instance: While we introduce, we do so because they are present. We also read off a list of witness names who are not present, and I suppose we'd follow the same practice with respect to an absent defendant. I have personally never presided over a trial where a defendant was tried in absentia. I have heard they have occurred in Snohomish County. At that point in time, the inquiry must be made of the jurors: "Do you know the defendant by name and identification?" I suppose we follow the same procedure.

204

MR. ROCHE: The problem with that, it is conceivable, although extremely unlikely, there could be a potential juror who might know Mr. Campbell by face, but not by name.

205

THE COURT: I presume there are photographs available, fairly recent.

206

MR. ROCHE: Yes, Your Honor. In addition, Mr. Campbell was in the reformatory for six years and since 1976 has never been east of the mountains. I would think it highly unlikely people in Spokane personally would be acquainted with him. Certainly, something we'd be interested in knowing.

207

THE COURT: It might be appropriate to each individual juror, ask them to observe a photograph and see.

208

I would assume we always run that risk with respect to witnesses and with respect to defendants. A person could be selected to sit on a jury and say: "I do not know Mr. Campbell," and someplace during the trial, say, it suddenly occurs they did know him ten years ago, but he's changed so much they have forgotten. I have had that happen with witnesses, not defendants.

209

I realize it is a problem, but I think it is not insurmountable and I think there is good cause to honor Mr. Campbell's request. As indicated, he has things he feels are more important to do in preparing for his trial than to sit through jury selection. He has good cause. I believe it is justified by the expense and difficulty and security means that would have to be taken to afford us to transport him and the security during the course of jury selection in a foreign county.

210

I will accept Mr. Campbell's waiver of his right to appear for any jury selection.

211

MR. CAMPBELL: Thank you, your Honor.

212

MR. ROCHE: Your Honor, we don't think the written waiver Mr. Mestel just handed me is sufficient in this case. We would ask--the only issue I can think of that's going to be raised is ineffective assistance of counsel, although I can see--since Court Rule 3.4 clearly states the defendant shall be present at all times, including the impanelling of the jury, which I think is absolutely essential in a death penalty case, but he will certainly--after Mr. Mestel and Mr. Savage leave the case, which will be at the end of the trial, his new attorneys will be scouring the record to see if Mr. Mestel and Mr. Savage are incompetent. This gives them a classic issue to bring up on appeal for ineffective assistance of counsel, among other things.

213

We'd ask Mr. Campbell personally waive in writing all future objections to be raised as to competency of counsel. It's happened already. The defense asked for things, then assigned error to it, and it's going to happen again.

214

MR. MESTEL: Your Honor, I thought this was fairly comprehensive. He is precluded from challenging anything about the jury selection. I will have him write on it, if you want.

215

THE COURT: Mr. Campbell, did you hear Mr. Roche's remarks?

216

MR. CAMPBELL: Yes, I did.

217

THE COURT: Do you understand what he is saying?

218

MR. CAMPBELL: Yes, I do.

219

THE COURT: He is suggesting that if, at a later time, you are represented by other counsel--even during the course of the trial, or, on appeal, you might have new counsel that might be asserting on your behalf that Mr. Mestel and Mr. Savage were incompetent in allowing you to execute such a waiver. Are you willing to waive any claim of incompetency of counsel as result [sic] of this waiver?

220

MR. CAMPBELL: Specifically, for waiver?

221

THE COURT: Yes, specifically for waiver.

222

MR. CAMPBELL: Nothing past jury selection or anything like that; right?

223

THE COURT: With respect to your nonappearance at the jury selection process.

224

MR. CAMPBELL: Yeah, I will waive it.

225

MR. ROCHE: I'd still rather see it in writing.

226

THE COURT: I don't think that's necessary.

227

REINHARDT, Circuit Judge, with whom Circuit Judges BROWNING, TANG, and D.W. NELSON join, concurring and dissenting:

228

Table of Contents

Overview .................................................................. 692

I. Evolving Standards of Decency .................................... 695

A. Legal Standards .............................................. 695

1. General Principles ...................................... 695

2. Specific Factors ........................................ 696

B. The Objective Evidence That Society Has Rejected Hanging ..... 697

C. The Inconsistency of Hanging with Human Dignity .............. 700

D. The Majority's Evisceration of the Eighth Amendment .......... 703

(1) The Absence of Any Rational Basis for the Majority's

Approach .............................................. 703

(2) The Majority's Deliberate Disregard of Precedent ........ 706

(3) The Pernicious Consequences of the Majority's Rule ...... 708

E. Summary 708

II. Unnecessary and Wanton Pain ...................................... 708

A.

Legal Standards .................................................. 709

B.

Analysis ......................................................... 711

1. The Compelling Evidence Regarding the Existence of Pain . 712

2. The Lack of Probativeness of the Washington Protocol .... 714

3. The District Court's Perverse Refusal to Consider

Evidence Regarding Alternative Methods of Execution ... 715

III. Conclusion ....................................................... 716

Appendix A ................................................................ 717

Appendix B ................................................................ 726

----------

Overview

229

"The present mode of executing criminals by hanging has come down to us from the dark ages, and it may well be questioned whether the science of the present day cannot provide a means for taking the life of such as are condemned to die in a less barbarous manner."

230

These are words one might expect from someone who believes that hanging no longer comports with the standards of decency of the late 20th Century. Yet they were written not in 1994, but more than a century ago, in 1885. They come from David B. Hill, then the Governor of New York. Governor Hill did not seek to abolish capital punishment, only to have the state employ a less medieval means for the taking of human life. 1

231

Over a century ago, enlightened individuals--even those who supported capital punishment--became concerned that hanging was a "barbarous" practice that was incompatible with then-contemporary standards of decency. Since that time, our standards of decency have evolved significantly. With respect to the concept of judicial hanging, they have evolved exponentially. Because new and less brutal methods of execution, such as lethal injection, have been developed, and evidence has mounted regarding the risks of pain and mutilation inherent in hanging, all but two state legislatures, both in the Ninth Circuit, have rejected hanging as a method of carrying out the death penalty. Inexplicably, the majority ignores all of these developments and concludes that hanging is acceptable in present-day American society--simply because, in the majority's view, hanging does not cause "unnecessary pain." I think it indisputable that the continued use of hanging is incompatible with society's evolving standards of decency. Moreover, although we need not reach the question, I think it equally clear that hanging inflicts unnecessary pain, both physical and emotional, on those condemned to die. Accordingly, I dissent from part VII-B of the majority opinion, in which the majority reaches the remarkable conclusion that, in Anno Domini 1994, in the United States of America, judicial hanging is constitutional. 2

232

There are three main faults in the majority opinion. First, the majority drastically curtails the scope and meaning of the Cruel and Unusual Punishments Clause of the United States Constitution. My colleagues hold that barbaric and savage forms of punishment are not prohibited by the Eighth Amendment, except in cases in which the use of such techniques results in the needless infliction of pain. Until today, we have applied the Supreme Court's traditional standard (as we are bound to do) and have struck down methods of punishment either if they were contrary to society's evolving standards of decency or if they inflicted unnecessary pain. With one exception, 3 the Supreme Court has, expressly or implicitly, applied both elements of this standard in every cruel and unusual punishment case it has decided in recent years, as have we. However, today's majority, determined to avoid the holding that follows inexorably from the fact that contemporary society has overwhelmingly rejected hanging, refuses to apply the established test. In the process, it removes nearly all judicial barriers to savage and barbaric punishments in the class of cases that lies at the core of the Eighth Amendment--method of punishment cases. To hold, as the majority does, that we review methods of punishment only to determine whether they inflict unnecessary pain, and that we do not look to any other factors to determine whether particular forms of punishment are acceptable to our civilized society, is to ignore not only all judicial precedents but also the very roots of the Eighth Amendment. Under the majority's unprecedented "rule," even the most inhumane forms of mutilation and savagery would be permissible, so long as they inflict no more pain than necessary. 4

233

Second, the majority upholds the district court's finding that hanging involves no unnecessary pain, even though the district court had absolutely no basis for determining whether the risks of pain inherent in hanging are necessary or not. It is undeniable that every hanging involves at least some risk that the prisoner will die a slow, painful, tortuous death. Campbell offered evidence that would have shown that lethal injection entails substantially less risk of pain than does hanging. The district court refused to admit this evidence because it believed that it should consider only the risks that inhere in hanging, and not those inherent in other procedures. Yet one of the ultimate issues before the district court--and the issue on which the majority focuses exclusively--was whether hanging entails any unnecessary risk of pain. It is logically impossible to consider whether the risks inherent in hanging are necessary without considering whether alternative methods of execution--such as lethal injection--obviate those risks. Because the district court prevented Campbell from introducing any evidence that would have permitted it to make a comparative inquiry, it erred as a matter of law.

234

Finally, the majority improperly concludes that the district court did not clearly err when it found that the Washington state hanging protocol has eliminated virtually all risk of pain and decapitation. Tellingly, the majority merely reiterates without analysis the portion of the testimony least harmful to its conclusion. Read in context, however, the testimony as a whole clearly showed that although in the majority of hangings death is relatively painless, each time an individual is to be hanged there is a significant risk of decapitation or of a slow, lingering, and painful death. It also showed that the Washington state protocol--on which the district court and the majority rely so heavily--consists solely of a 12-page typed set of prison regulations, less than three pages of which have anything to do with the mechanics of the actual hanging. The crucial parts of this protocol were simply copied without any medical advice or consultation from a 1959 military execution manual that had never been used in an actual hanging, even though the Washington state officials had no idea how the procedure set forth in the manual had been developed. The expert testimony made clear that this protocol was in fact not very different from hanging procedures which had caused severe pain, lingering deaths, and mutilation in the past, and that these results would likely continue to occur in a number of cases under the Washington procedures. The district court's findings to the contrary are clearly erroneous.

235

As a result of today's decision, the Ninth Circuit stands alone among the federal courts in approving a savage and barbaric practice universally rejected in the rest of our nation. More than that, the majority does incalculable damage to the Eighth Amendment. Surely, this decision cannot be allowed to stand.

I. Evolving Standards of Decency

A. Legal Standards

1. General Principles

236

The issue of what methods of punishment are unconstitutional is one that lies at the heart of the Eighth Amendment. That amendment was specifically designed to prohibit forms of punishment that were "cruel and unusual." Its purpose was to bar the imposition of savage and barbaric punishments on convicted felons and to ensure that punitive actions taken by the state were consistent with the standards of a civilized society. Thus, at the time of its adoption, the Eighth Amendment barred such punishments as embowelling alive, beheading, and quartering; public dissection; and burning alive. See Wilkerson, 99 U.S. at 135 .

237

Since the Eighth Amendment was ratified, its reach has been expanded in two ways. First, the Supreme Court has recognized that the protections of the Eighth Amendment are "not static" and that "[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 , 78 S.Ct. 590, 598 , 2 L.Ed.2d 630 (1958) (plurality opinion). The Court recognized as early as 1910 that the Cruel and Unusual Punishments Clause's prohibitions are not limited to those methods of punishment that were considered cruel or unusual at the time the Bill of Rights was adopted. See Weems v. United States, 217 U.S. 349, 372-73 , 30 S.Ct. 544, 551 , 54 L.Ed. 793 (1910). The Framers understood that our society's mores would evolve, and that some methods which had once been widely employed would become unacceptable to society, just as the torturous and barbaric punishments of the Stuarts had become unacceptable by the Framers' own time. See id. at 372 , 30 S.Ct. at 551 . They therefore framed a prohibition on cruel and unusual punishments which is dynamic and "progressive, and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." Id. at 378 , 30 S.Ct. at 553 .

238

Second, the Court has expanded the amendment's coverage beyond its prohibition on barbarous methods of punishment, to encompass such protections as a guarantee that penalties will be proportionate to the offenses for which they are imposed, see, e.g., Coker v. Georgia, 433 U.S. 584 , 97 S.Ct. 2861 , 53 L.Ed.2d 982 (1977), and a safeguard against inhumane conditions of confinement, including inadequate medical care. See, e.g., Helling v. McKinney, --- U.S. ----, 113 S.Ct. 2475 , 125 L.Ed.2d 22 (1993); Estelle v. Gamble, 429 U.S. 97 , 97 S.Ct. 285 , 50 L.Ed.2d 251 (1976). Despite these developments, the fundamental purpose of the Eighth Amendment has not changed: the question we face today--whether a particular method of punishment is uncivilized and barbaric--involves the core prohibition embodied in the Eighth Amendment.

239

As the Court made clear in Trop, a punishment that is incompatible with our evolving standards of decency violates the Cruel and Unusual Punishments Clause. In addition, a punishment violates the Clause if it involves "the unnecessary and wanton infliction of pain." Gregg v. Georgia, 428 U.S. 153, 173 , 96 S.Ct. 2909, 2925 , 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, Stevens, JJ.). "[P]unishments 'incompatible with the evolving standards of decency that mark the progress of a maturing society' or 'involv[ing] the unnecessary and wanton infliction of pain' are 'repugnant to the Eighth Amendment.' " Hudson v. McMillian, --- U.S. ----, ----, 112 S.Ct. 995, 1001 , 117 L.Ed.2d 156 (1992) (emphasis added) (quoting Estelle v. Gamble, 429 U.S. 97, 102-03 , 97 S.Ct. 285, 290 , 50 L.Ed.2d 251 (1976)). We recognized both of these aspects to the Eighth Amendment inquiry in Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir.1985). The analysis set forth in these cases has been applied, expressly or implicitly, in every Eighth Amendment case in recent years.

240

As is often the case in contemporary jurisprudence, the two-part analysis that the Supreme Court reiterated in Hudson, and that we followed in Haygood, is somewhat artificial. In any Eighth Amendment case, our ultimate inquiry is always whether the punishment is consistent with evolving standards of decency. See, e.g., Gregg, 428 U.S. at 173 , 96 S.Ct. at 2925 (opinion of Stewart, Powell, Stevens, JJ.). The unnecessary infliction of pain is merely one way in which a punishment can violate these standards. However, because unnecessary infliction of pain is the most common and most readily measurable example of inconsistency with our evolving standards of decency, the cases frequently treat it as a separate form of violation. 5 Thus, if the court decides that a punishment is unnecessarily painful, it will ordinarily hold that a violation of the Eighth Amendment has occurred and will not go on to consider whether the punishment is otherwise inconsistent with our standards of decency. Similarly, if the court concludes that the punishment has been rejected by society as savage and barbaric, it will not be necessary for it to consider whether it inflicts unnecessary pain. There is, however, no prescribed order to our analysis. We can start with either inquiry. Here, because the case involves a "core" Eighth Amendment issue, it seems more orderly to start with the more fundamental question. Accordingly, in part I, I discuss hanging's more general incompatibility with evolving standards of decency, and in part II, (while it is unnecessary to reach the point) I consider whether hanging involves the unnecessary and wanton infliction of pain.

2. Specific Factors

241

In determining whether a punishment is incompatible with our evolving standards of decency, a court may look to a number of factors. First and primarily, however, "we look to objective indicia that reflect the public attitude toward a given sanction." Gregg, 428 U.S. at 173 , 96 S.Ct. at 2925 (opinion of Stewart, Powell, Stevens, JJ.). The most important objective evidence consists of the statutes adopted by society's elected representatives. See Stanford v. Kentucky, 492 U.S. 361, 367-70 , 109 S.Ct. 2969, 2974-75 , 106 L.Ed.2d 306 (1989). Where state legislatures have reached a sufficient "degree of national consensus" in rejecting a particular punishment, id. at 370-71 , at 2975-76, that punishment is unconstitutional and our inquiry may end. Although neither the Supreme Court nor this court has ever made explicit just how much of a consensus is sufficient, it is clear that at some point the state legislative trend will become so compelling that we cannot ignore it. To be sure, "it is for us ultimately to judge" whether the Eighth Amendment prohibits a given punishment. Enmund v. Florida, 458 U.S. 782, 797 , 102 S.Ct. 3368, 3376 , 73 L.Ed.2d 1140 (1982). However, once a punishment has been rejected as unacceptable by a sufficiently large number of state legislatures, we can no longer say that it is consistent with our society's standards of decency, regardless of what our view would be in the absence of such clear legislative action. See, e.g., Coker v. Georgia, 433 U.S. 584, 593-96 , 97 S.Ct. 2861, 2866-68 , 53 L.Ed.2d 982 (1977) (plurality opinion) (striking down Georgia's death penalty for rape of an adult woman, largely because Georgia was the only state that imposed the death penalty for rape of an adult, and one of only three states that imposed the death penalty for any rape); cf. Ford v. Wainwright, 477 U.S. 399, 408-10, 416-18 , 106 S.Ct. 2595, 2601-02, 2605-06 , 91 L.Ed.2d 335 (1986) (relying on the fact that "no State in the Union permits the execution of the insane" in holding that the Eighth Amendment prohibits a state from executing an insane prisoner and that the state must provide an adequate hearing on the issue of sanity).

242

Where the legislatures have failed to reach this kind of general agreement that a punishment should be repudiated, however, we must inquire further. In such circumstances, as the Supreme Court has made clear, "legislative judgments alone cannot be determinative of Eighth Amendment standards since that Amendment was intended to safeguard individuals from the abuse of legislative power." Gregg, 428 U.S. at 174 n. 19, 96 S.Ct. at 2925 n. 19 (opinion of Stewart, Powell, Stevens, JJ.). In the absence of a clear and unequivocal legislative repudiation of a punishment, we must look to other objective indicia of public attitudes and to other objective factors. Among the latter are whether the punishment involves mutilation or dismemberment, whether it is historically associated with repression or tyranny, and whether it may fairly be characterized as dehumanizing or degrading. In short, we must ask whether the punishment "comports with the basic concept of human dignity at the core of the Amendment." Id. at 182, 96 S.Ct. at 2929. We answer this question not only by reviewing all of the pertinent judicial decisions but also by employing the tools of philosophy, religion, logic, and history, in an effort to obtain a full understanding of the nature of a civilized society. While judges may not substitute their own judgment for that of the legislature, they are particularly well-equipped, by virtue of training, education, experience, and the characteristics which brought them to the bench, to apply these techniques to the type of issue before us. Moreover, by virtue of life tenure, federal judges may do so free of political pressures or other extraneous considerations.

243

B. The Objective Evidence That Society Has Rejected Hanging

244

By any objective measure, hanging has been rejected by present-day society. This country has experienced far more than a "trend" toward abolition. Abolition is almost complete. In fact, it is complete, everywhere but in the northwestern corridor of the Ninth Circuit. Before the turn of the century, hanging was the "nearly universal form of execution." State v. Frampton, 95 Wash.2d 469 , 627 P.2d 922, 934 (1981). Indeed, 48 states used to hang persons convicted of capital offenses. 6 In this century, however, hanging has been abandoned virtually everywhere, as states have sought less gruesome and torturous methods of execution. See Furman v. Georgia, 408 U.S. 238 , 296-97 & n. 50, 92 S.Ct. 2726 , 2755-56 & n. 50, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring) (stating that, as of 1972, eight states still employed hanging, while the remaining death penalty states had switched to "the supposedly more humane methods" of electrocution and lethal gas); Frampton, 627 P.2d at 934 (stating that, as of 1981, only four jurisdictions in the English-speaking world employed hanging: Washington, Montana, Delaware, and South Africa). Since 1853, 46 states have turned away from hanging. Fully 39 states abandoned hanging in favor of another, assertedly more humane method of execution, and an additional seven abolished the death penalty at a time when hanging was the method they employed. 7 Even the United States Army--on whose protocol the state so heavily relies--abandoned that form of punishment in 1986, as did the other military services; and in that same year the last two states outside the Ninth Circuit eliminated the practice and substituted lethal injection. At present, therefore, only two states, Washington and Montana, both in the Ninth Circuit, retain hanging as a form of execution. As a result of today's decision, only the Ninth Circuit still finds this abominable practice constitutional. 8

245

No federal case has ever upheld a mode of punishment which has been as widely rejected as has hanging. Indeed, the Supreme Court has concluded that society has rejected punishments even where the objective evidence has been far less compelling than it is here. In Enmund v. Florida, 458 U.S. 782 , 102 S.Ct. 3368 , 73 L.Ed.2d 1140 (1982), for example, the Court held that it was unconstitutional to impose the death penalty for vicarious felony murder. In reaching this conclusion, Justice White's opinion for the Court relied heavily on the fact that "only about a third of American jurisdictions would ever permit a defendant who somehow participated in a robbery where a murder occurred to be sentenced to die." Id. at 792 , 102 S.Ct. at 3374. In particular, only eight states authorized the death penalty solely for participating in a felony in which a person was killed. See generally id. at 789-93, 102 S.Ct. at 3372-74. Largely because of this and other evidence of "[s]ociety's rejection of the death penalty for accomplice liability in felony murders," id. at 794, 102 S.Ct. at 3375, the Supreme Court concluded that imposition of the death penalty in such circumstances would violate the Eighth Amendment.

246

Similarly, in Thompson v. Oklahoma, 487 U.S. 815 , 108 S.Ct. 2687 , 101 L.Ed.2d 702 (1988), the Supreme Court held that the Eighth Amendment prohibited executions for crimes committed by children under 16 years of age. Even though 15-year-olds were eligible for the death penalty in the 19 death penalty states which had no minimum age, the plurality found that society had rejected the death penalty for such young children. The plurality looked to the 18 states which had adopted minimum age requirements for the death penalty, and relied on the fact that all 18 required the defendant to have been at least 16 years old at the time of the offense. See id. at 826-29 , 108 S.Ct. at 2694-96 (plurality opinion). In her concurrence, Justice O'Connor recognized that 15-year-olds could be eligible for the death penalty in 19 states. See id. at 850 , 108 S.Ct. at 2707 (O'Connor, J., concurring in the judgment). Nonetheless, she concluded that the application of the death penalty to 15-year-olds violated the Eighth Amendment, because "almost two-thirds of the state legislatures have definitely concluded that no 15-year-old should be exposed to the threat of execution," and no state had "affirmatively and unequivocally endorsed such a practice." Id. at 849 , 108 S.Ct. at 2706 .

247

Under Enmund and Thompson, hanging is, a fortiori, unconstitutional. The evidence that society has rejected hanging as a form of punishment is far more compelling than the evidence the Supreme Court found sufficient to compel a finding of unconstitutionality in those cases. In both Enmund and Thompson, the Court concluded that society had rejected a punishment even though it had been rejected by significantly fewer states than have rejected hanging. Enmund involved a practice which was still authorized in eight states, and Thompson involved a practice which was still lawful in nineteen. 9 In contrast to the practices in those cases, all but two states, closely situated geographically, have rejected hanging. Contrary to the majority's characterization, this is not merely a "trend among several states in recent years to replace hanging with other methods of execution." Ante at 682 (emphasis added). Instead, there has been a virtually unanimous rejection by the states of this formerly universally accepted mode of execution. Beginning with New York's abandonment of hanging in 1888, every state (other than Washington and Montana) which has retained the death penalty has sought some other, less barbaric mode of execution. Many states did so in the early part of the 20th Century, many more did so in the 1930s and 1940s, and still more did so in recent years. This is, in short, a far greater "degree of national consensus" than the Supreme Court "has previously thought sufficient to label a particular punishment cruel and unusual." Stanford, 492 U.S. at 371-72 , 109 S.Ct. at 2975-76 . 10

248

It is not only the sheer number of states that have abolished the practice that dictates the conclusion that hanging is unconstitutional. It is also the fact that the state legislatures have in the main been motivated by core Eighth Amendment concerns. The states that have abandoned hanging in favor of other methods of execution clearly did so because they agreed with Governor Hill's characterization of that method as a "barbarous" mode of punishment which came "from the dark ages" and had no place in the policies of a civilized society. Hanging has been considered so inhumane that state legislatures have found all other available methods of execution to be preferable. 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. Oliver Wendell Holmes, then the Chief Justice of the Massachusetts Supreme Judicial Court, expressed the view of all of the states which had moved from hanging to electrocution when he explained that the change "was devised for reaching the end proposed as swiftly and painlessly as possible." In re Storti, 178 Mass. 549 , 60 N.E. 210 , 210 (1901); see also Malloy v. South Carolina, 237 U.S. 180, 185 , 35 S.Ct. 507, 509 , 59 L.Ed. 905 (1915) ("Influenced by the results in New York eleven other States have adopted the same mode for inflicting death in capital cases; and, as is commonly known, this result is the consequent of a well-grounded belief that electrocution is less painful and more humane than hanging." ). Forty years later, when the state of Louisiana finally abandoned hanging in favor of electrocution, it explained that "electrocution is recognized as a more humane and less painful manner or means of carrying out the death penalty than by hanging." State ex rel. Pierre v. Jones, 200 La. 808 , 9 So.2d 42, 43 (1942). See also 1923 Tex.Gen.Laws ch. 51, Secs. 1, 14 (changing from hanging to electrocution and referring to the "fact" that hanging "is antiquated and has been supplanted in many states by the more modern and humane system of electrocution."). Like the states that replaced hanging with electrocution, the states that moved from hanging to the gas chamber "sought to provide a method of inflicting the death penalty in the most humane manner known to modern science." State v. Gee Jon, 46 Nev. 418 , 211 P. 676, 682 (1923). The same, of course, is true for the states that chose the lethal injection alternative.

249

Even in the two jurisdictions in which hanging remains on the books, it has been all but abolished in practice in recent years. Since 1963, not a single person who asserted his Eighth Amendment rights has been lawfully hanged in this country. The only person who has been judicially hanged during this period was Westley Allan Dodd, whom Washington executed last year after he refused to assert those rights. This fact, as well, provides strong evidence that hanging is no longer compatible with our society's standards of decency. See, e.g., Thompson, 487 U.S. at 831-33 , 108 S.Ct. at 2696-98 ; id. at 852-53 , 108 S.Ct. at 2708-09 (O'Connor, J., concurring) (both noting that the rarity with which a punishment is imposed indicates that it is cruel and unusual). Indeed, with the exception of South Africa 11 and a few small Caribbean states, there has not been another judicial hanging in the entire English-speaking world since 1966. In light of these facts, the majority's willingness to endorse so savage and barbaric a practice as constitutional is simply incomprehensible.

250

The legislatures of the 46 states which have abandoned hanging (and possibly of the two which never adopted it) have considered the facts and determined that judicial hanging is an inhumane manner of taking life. In doing so, they responded to the core concern of the Eighth Amendment--that the state may not employ savage and barbaric methods of punishment. The majority of this en banc court has no business substituting its judgment for the clearly-expressed view of nearly every state legislature in the nation. Under the Constitution, that consensus binds us. 12

251

In the case before us, it is not necessary to go further than our primary test--the objective evidence of public attitudes. This objective evidence is so overwhelming that it controls our decision. We are simply not free to disregard the nearly universal determination of our state legislatures that hanging is no longer compatible with our standards of decency. Because the people and the legislatures of this nation have made their judgment, and have clearly and consistently rejected the use of hanging as a form of execution, our task is at an end. No further judicial inquiry is required. However, the plain fact is that, here, every factor, singly and collectively, necessitates a determination that hanging constitutes cruel and unusual punishment. It is therefore helpful to examine some of the other relevant factors.

252

C. The Inconsistency of Hanging with Human Dignity

253

It is not only the fact that almost every state has rejected hanging as a form of punishment that compels the conclusion that hanging fails to comport with our evolving standards of decency. It is also the fact that the practice of judicial hanging is demonstrably incompatible with the respect for human dignity that is the mark of a civilized nation. While some of us doubt that capital punishment of any kind is consistent with contemporary social and religious values, even those of us who are persuaded that state-sponsored executions are constitutional must conclude that hanging is a savage and barbaric method of terminating human life. We are convinced that judicial hanging is an ugly vestige of earlier, less civilized times when science had not yet developed medically-appropriate methods of bringing human life to an end. Hanging is a crude, rough, and wanton procedure, the purpose of which is to tear apart the spine. It is needlessly violent and intrusive, deliberately degrading and dehumanizing. It causes grievous fear beyond that of death itself and the attendant consequences are often humiliating and disgusting.

254

In a number of cases, one of these consequences is decapitation. Every single expert witness at the evidentiary hearing--both those called by Campbell and those called by the state--admitted at one point or another that some decapitations will occur under the Washington state protocol. 13 Indeed, Campbell presented unrefuted testimony that the Washington protocol will actually increase the risk of decapitation, because it requires that the rope be treated to eliminate all elasticity, thereby assuring that the greatest possible amount of force will be transferred to the prisoner's neck. The risk that the force of the drop will be so great as to rip the head off of the body, while blood spurts uncontrollably, is but one of hanging's degrading incidents.

255

Hanging is associated with lynching, with frontier justice, and with our ugly, nasty, and best-forgotten history of bodies swinging from the trees or exhibited in public places. To many Americans, judicial hangings call forth the brutal images of Southern justice immortalized in a song hauntingly sung by Billie Holiday. 14 To many others, they are a symbol of rough and instant Western justice--of hanging first and asking questions later. 15 Yet to all of us, hangings are a remnant of an earlier, harder time, a time when in meting out punishment we were far less concerned with human dignity and decency. In the two states of the Ninth Circuit where hanging still exists, it stands out starkly as a barbaric anachronism.

256

We reject barbaric forms of punishment as cruel and unusual not merely because of the pain they inflict but also because we pride ourselves on being a civilized society. We look on capital punishment as a necessary evil. Few any longer view it as any cause for celebration or an occasion for civic festivities or public gatherings. 16 We impose capital punishment when we do only because a majority of citizens or legislators have concluded that it is a necessary means of combatting or of punishing violent crime. While this is neither the time nor the place to debate that dubious theory, we should all be able to unite, at a minimum, on the proposition that state-sponsored executions must be carried out in the least cruel and painful, the least uncivilized, manner possible. It is difficult in fact to imagine anyone advocating--or the Constitution permitting--any other course.

257

In fact, the Constitution requires that the state allow the person it executes to die with as much dignity as possible. See Gregg, 428 U.S. at 182 , 96 S.Ct. at 2929 (opinion of Stewart, Powell, Stevens, JJ.). Although indignity may stem from the needless infliction of pain, it can also arise from the relatively painless infliction of degradation, savagery, and brutality. Cruelty does not necessarily involve pain. Indignities can be inflicted even after a person has died. For example, there can be little doubt that the Eighth Amendment prohibits the public exhibiting of carcasses on yardarms, and the stringing up of bodies in public squares. Likewise, it prohibits the dragging by caissons of corpses through the public streets after a state-sponsored execution, and the displaying of bodies outside the homes of their former occupants or in the neighborhoods in which they lived, as a warning to allies or co-conspirators. And finally, the Constitution prohibits drawing and quartering not only before but after the death sentence has been fully carried out. See Wilkerson v. Utah, 99 U.S. 130, 135-36 , 25 L.Ed. 345 (1879). All these post-mortem forms of treatment of a person's body are abhorrent and would necessarily violate the Cruel and Unusual Punishments Clause, although, obviously, none of them could cause any pain to the executed person.

258

In short, the Constitution commands that we impose the death penalty in as civilized and non-brutal a manner as possible. I recognize the "oxymoronic" quality of this directive; nevertheless, I do not believe that it is open to debate. It is not only the individual's dignity that is at stake, it is the nation's and society's as well. To the extent that we can eliminate the degrading, brutal, and violent aspects of an execution, and substitute a scientifically developed and approved method of terminating life through appropriate medical procedures in a neutral, medical environment, we are obligated by the Constitution to do so. If medical science has developed a method of terminating life relatively painlessly and peacefully, and with comparative dignity, the Constitution requires that we employ that procedure rather than the savage, ugly, and antiquated methods of earlier times. The old days of Southern and Western justice must finally come to an end, in the states of Washington and Montana as elsewhere. 17 And even this court will someday have to recognize that barbaric and savage practices are not permitted under our system of law.

259

I will discuss the issue of a more medically appropriate method of execution--lethal injection--in connection with part II of this opinion, which sets forth more fully the proposition that the states may not use a more painful method of execution if a less painful method is available. Here, I need only emphasize that, notwithstanding the district court's improper refusal to permit the introduction of evidence regarding lethal injection, the administration of an injection to a person who has been sedated and placed on a bed by a medically trained person in a medical environment is obviously far less barbaric and uncivilized, far less inhumane and degrading, than the forced march of a prisoner up the gallows steps where the untrained hangman waits in hope that the drop will be spoiled only by the defecation and voiding that result from the state's crude and violent effort to forcefully terminate a human life at the end of a rope.

260

D. The Majority's Evisceration of the Eighth Amendment

261

The majority deliberately disregards all questions of savagery, barbarism, and cruelty, and refuses to apply the traditional factors by which courts determine whether our contemporary standards of decency have been violated. It does so on the basis of its unreasoned and unexplained conclusion that in addressing a challenge to the constitutionality of a "method of punishment," we must consider only whether that method unnecessarily inflicts pain. Without even a colorable attempt at constitutional analysis, the majority rejects the standard employed in every Eighth Amendment case in recent years. By its ex cathedra pronouncement, the majority eviscerates not only longstanding Eighth Amendment doctrine but the Eighth Amendment itself.

262

(1) The Absence of Any Rational Basis for the Majority's

Approach

263

Contrary to all precedent, the majority deems it irrelevant that the state legislatures have almost uniformly concluded that hanging is no longer an appropriate form of punishment. It disregards all of the factors (other than unnecessary pain) that courts have traditionally considered when determining whether a particular punishment is consistent with our evolving standards of decency. The majority cannot cite a single case in support of its astonishing and wholly unprecedented decision to bar the use of traditional Eighth Amendment concepts in cases involving forms of punishment, 18 nor even a legal argument based on a remotely analogous case. 19 There is simply no rational justification in the majority opinion or elsewhere for abandoning the traditional standards in favor of an examination of pain exclusively. Nor does the majority purport to offer any reasoned explanation why an exception to the rules governing Eighth Amendment cases should be carved out for cases involving methods of punishment--an exception that would drastically curtail the power of the federal courts with respect to the most fundamental of Eighth Amendment concerns and would preclude us from considering whether modes of punishment administered by the states meet the minimum standards of a civilized society. In fact, were we to limit our review in such cases solely to the pain question, federal courts would be powerless to stop the implementation of any number of uncivilized and barbaric punishments, so long as they did not inflict any more pain than necessary to meet some asserted penological interest.

264

The majority's entire discussion of the constitutionality of hanging rests on the perverse premise, ungrounded in prior law, that the Eighth Amendment imposes only one requirement with respect to a method of execution or other form of punishment--that it not inflict pain unnecessarily. Despite two hundred years of unbroken legal history to the contrary, the majority simply refuses to consider any of the other relevant factors. See supra note 4. It distinguishes Coker and Enmund --two cases which applied the traditional test and struck down punishments because they had been widely rejected by the state legislatures--because "[t]hose cases concern the proportionality of the death penalty to the crimes of conviction, as opposed to the method of execution." Ante at 682 (footnote omitted). The majority offers only two sentences in support of its purported distinction--a distinction which does not appear in Coker, Enmund, or any other case--notwithstanding the revolutionary consequences which would follow. In those two sentences, the majority simply pronounces, without any explanation whatsoever, that "proportionality review entails examination of the actions both of state legislatures and of sentencing juries to determine contemporary standards of decency," while "methodology review focuses more heavily on objective evidence of the pain involved in the challenged method." Ante at 682.

265

The factitious distinction created by the majority conflicts directly with the original intent of the Cruel and Unusual Punishments Clause. As Anthony Granucci demonstrated in his groundbreaking study, that clause arose out of a fear that the government would impose tortures and other barbarous forms of punishment on persons convicted of criminal acts. 20 Congress and the states adopted the Eighth Amendment with the understanding that it "was directed at prohibiting certain methods of punishment." Anthony F. Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Cal.L.Rev. 839, 841-42 (1969); see also Groseclose v. Dutton, 609 F.Supp. 1432, 1440 (M.D.Tenn.1985) ("It is evident that the prohibitions in the Eighth Amendment evolved primarily from the concern for the manner in which individuals would be put to death.") (emphasis added). In short, as noted earlier, the prohibition of inhumane methods of punishment lies at the very core of the Cruel and Unusual Punishments Clause. If any part of Eighth Amendment law is subject to the Supreme Court's central "evolving standards of decency" test and entitled to the essential protections it affords, it is clearly that part which governs challenges to "methods of punishment." The majority's silence on this point tells us much about its opinion and the method by which it arrived at its wholly fallacious ultimate conclusion.

266

There is simply no rational basis anywhere in the opinion for the paradoxical exception the majority creates. This is apparent from the majority's distortion of the authorities on which it purports to rely and the inconsistency between its discussion of the appropriate legal standard and the test it ultimately employs. It is equally apparent from the fact that the majority barely mentions the standard it finally settles on, adopting it in the most indirect of manners. Moreover, before applying the rule that unnecessary pain is the only factor that must be considered, the majority sets forth two other contradictory rules and never disavows either of them. It simply explains the two rules, then ignores them.

267

The majority introduces its analysis with the non-controversial statement that "[t]o determine whether hanging is unconstitutionally cruel and unusual, we look to objective factors to the maximum extent possible." Ante at 682. It then cites the established rule set forth most recently in Stanford, suggesting that it intends to apply that rule. The Stanford rule states that: " '[F]irst' among the 'objective indicia that reflect the public attitude toward a given sanction' are statutes passed by society's elected representatives." Stanford, 492 U.S. at 370 , 109 S.Ct. at 2975 (quoting McCleskey v. Kemp, 481 U.S. 279, 300 , 107 S.Ct. 1756, 1771 , 95 L.Ed.2d 262 (1987)) (emphasis added). 21 Apparently understanding that the Stanford rule would, on its face, dictate the conclusion that hanging is unconstitutional, the majority next "restates" the rule by omitting the crucial first word of the quotation when it paraphrases the statement. 22 It then implements its "restated" Stanford rule by announcing a new category of analysis and a new method of determining Eighth Amendment violations. The majority declares that in cases involving "methodology review"--a category of analysis invented by the majority for purposes of this case 23 --we must "focus[ ] more heavily on objective evidence of the pain involved in the challenged method."

268

However, even the misrepresentation of Stanford and the hastily conceived rule for "methodology review" cannot do the majority's work for it. As a result, the majority quickly abandons all of its prior approaches and actually resolves the case by applying a standard that is even more inconsistent with Eighth Amendment law. The majority ultimately proceeds to decide the case as if its newly created rule were not that "methodology review" focuses "more heavily" on objective evidence of pain, but that it focuses exclusively on unnecessary pain. 24 Thus, despite its purported reliance on Stanford, the majority actually applies a rule that directly contradicts Stanford as well as the long line of Supreme Court precedent upon which that case relies.

269

In lieu of making any argument in support of its ultimate proposition that "methodology review" focuses only on unnecessary pain, the majority cites a single legal opinion--remarkably, it is a dissent from denial of certiorari written by Justice Brennan in Glass v. Louisiana, 471 U.S. 1080 , 105 S.Ct. 2159 , 85 L.Ed.2d 514 (1985). By lifting one sentence out of context and ignoring the rest of the opinion, the majority totally distorts Justice Brennan's position. In Glass, Justice Brennan (with Justice Marshall joining) argued that the Supreme Court should have granted certiorari to consider a capital defendant's Eighth Amendment challenge to electrocution as a method of execution. On the page immediately following the one sentence the majority cites, Justice Brennan makes clear that:

270

The Eighth Amendment's protection of "the dignity of man" extends beyond prohibiting the unnecessary infliction of pain when extinguishing life. Civilized standards, for example, require a minimization of physical violence during execution irrespective of the pain that such violence might inflict on the condemned. Similarly, basic notions of human dignity command that the state minimize "mutilation" and "distortion" of the condemned prisoner's body. These principles explain the Eighth Amendment's prohibition of such barbaric practices as drawing and quartering.

271

Id. at 1085, 105 S.Ct. at 2162-63 (citations omitted) (emphasis added) (quoting Trop, 356 U.S. at 100 , 78 S.Ct. at 597-98 (plurality opinion)). As in its use of Gregg and Stanford, the majority once again, by lifting a sentence out of context or omitting a crucial part of a sentence, relies on a case for a proposition which is directly contradicted within a page of the sentence it cites. See supra page 703; note 19. This is, in my view, not the way in which courts should arrive at decisions that determine fundamental constitutional rights. 25

272

The majority's analysis is remarkable for other reasons as well. If only a single, narrow "unnecessary infliction of pain" test applies to Eighth Amendment challenges to methods of punishment, the majority must be truly sagacious in discovering this rule, for it is the first court in the more than two centuries of the Bill of Rights ever to have suggested it. In fact, the premise upon which the majority's holding is founded is so novel and extraordinary it was not even suggested by the state. Rather, it was simply created for purposes of this case--and I hope this case only 26 --by the majority. It has no place in our Eighth Amendment jurisprudence.

273

(2) The Majority's Deliberate Disregard of Precedent

274

Contrary to the majority's representations, the touchstone of Eighth Amendment analysis in all types of cases is, beyond any doubt, whether a punishment conforms to our society's contemporary standards of decency. See, e.g., Gregg, 428 U.S. at 173 , 96 S.Ct. at 2925 (opinion of Stewart, Powell, Stevens, JJ.). One way in which a punishment can contravene these standards is by inflicting pain unnecessarily. Yet that is certainly not the only way. Even a completely painless punishment may still evidence an utter disregard for " 'the dignity of man,' which is the 'basic concept underlying the Eighth Amendment.' " Id. (quoting Trop, 356 U.S. at 100 , 78 S.Ct. at 597 ). For example, the guillotine is a comparatively painless method of execution. Yet even if it were the most painless method, any court faced with the issue today would certainly hold that, whatever the state of the law in 1789, beheading is inconsistent with our current standards of decency, both because every state has rejected that form of execution and because there is a savagery to the extreme bodily mutilation and the outpouring of blood that is simply inconsistent with human dignity. 27 Similarly, all of the punishments involving postmortem mutilation discussed in part I-C would be held to be in violation of the Eighth Amendment, even though they would not cause the infliction of any pain.

275

As explained earlier, except for the majority, courts have uniformly required that a punishment neither inflict unnecessary pain nor otherwise violate "evolving standards of decency" and have not sought to limit the force of the Eighth Amendment by seeking to seal off a category of cases from its full protections. 28 Specifically, every contemporary federal case to give extended discussion to the constitutionality of a method of execution has engaged in the entire evolving standards of decency inquiry. None has said, as does the majority, that the defendant "is entitled to an execution free only of 'the unnecessary and wanton infliction of pain.' " Ante at 683 (citation omitted). In Gray v. Lucas, 710 F.2d 1048, 1058 (5th Cir.1983) (per curiam), the Fifth Circuit relied on the "principles ... articulated by the Supreme Court in Estelle v. Gamble, [ 429 U.S. 97 , 102-03 97 S.Ct. 285, 290 , 50 L.Ed.2d 251 (1976) ]," in deciding a challenge to the gas chamber. Those principles were, of course, the "contemporary standards of decency as manifested in modern legislation." See Gamble, 429 U.S. at 103 -04 & n. 8, 97 S.Ct. at 290-91 & n. 8 (holding that the denial of medical care to prisoners constitutes cruel and unusual punishment and listing statutes from 22 states). The Gray court quoted extensively from Gamble 's formulation of the Eighth Amendment test, and applied "evolving standards of decency" in determining that execution by lethal gas was constitutional. 29 See also Hill v. Lockhart, 791 F.Supp. 1388, 1394 (E.D.Ark.1992) (rejecting claim that lethal injection violates the Eighth Amendment because "[t]here is general agreement that lethal injection is at present the most humane type of execution available and is far preferable to the sometimes barbaric means employed in the past" and "[m]any states have now abandoned other forms of execution in favor of lethal injection").

276

The courts have looked to all of the ways in which a punishment can violate our standards of decency in cases involving non-capital as well as capital methods of punishment. A classic example is the Eighth Circuit's decision that the use of the strap to discipline prison inmates is unconstitutional. Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir.1968). In Jackson, the court looked beyond the narrow issue of unnecessary pain and concluded that the use of the strap is inconsistent with contemporary standards of decency, both because "[i]t is degrading to the punisher and to the punished alike" and because "[p]ublic opinion is obviously adverse." In reaching the latter conclusion, the court relied on the fact that only two states still permitted use of the strap. The Jackson court engaged in the proper constitutional analysis, for whatever the value of the strap to prison discipline might be (and I am certain that it would not be insignificant), that method of punishment is out of place in late 20th Century American society, a society that demands respect for human dignity.

277

By failing to apply the analysis employed in Jackson and all other method of punishment cases, and concluding instead that the number of states rejecting a particular method of punishment is of little consequence because it "sheds no light on the actual pain that may or may not attend the practice," ante at 682, the majority flouts fundamental Eighth Amendment principles. In method-of-punishment cases, above all other, we may not limit our analysis to the narrow "unnecessary pain" question. The majority's holding eviscerates the Cruel and Unusual Punishments Clause and does so in precisely the area in which it was designed to have its greatest force.

278

(3) The Pernicious Consequences of the Majority's Rule

279

The damage done to the Constitution by the majority's opinion is incalculable. Until this decision, it was universally understood that methods of punishment--the central historic concern of the Eighth Amendment--were measured against the absolute, unwavering values of a civilized society. Now, that is no longer the case in the Ninth Circuit. Until today, we could say with assurance that under no circumstances would we countenance, anywhere in our great nation, the use of barbaric punishments such as flogging, whipping, or the application of electrical devices to one's private parts. Under the majority's opinion, we no longer have any such assurance in the nine Western states, where the sole judicial concern is presumably a pragmatic one--whether the amount of pain inflicted is greater than necessary to accomplish a penological purpose.

280

Under the majority's standard, any method of punishment--even one which has long been put to rest--would be constitutional, so long as the pain it inflicts is deemed reasonably necessary. Given the deference we afford to state legislatures and prison administrators with respect to such questions--and given the majority's refusal to recognize the existence of pain even under the most obvious circumstances--today's decision clearly invites a return to the brutal and uncivilized ways of our past.

E. Summary

281

In sum, there is simply no justification for the majority's failure to conduct an inquiry into whether society's "evolving standards of decency" prohibit hanging. The prohibition against barbaric and uncivilized methods of punishment lies at the heart of the Eighth Amendment. The cases require us to determine whether a particular punishment comports with societal standards, and they require us to look to state legislative actions to answer this question. The majority cannot point to a single case holding--or even suggesting--otherwise. Finally, were the majority to follow precedent and consider whether hanging violates our evolving standards of decency, it would be bound to conclude that it is a form of execution that has been unequivocally rejected as contrary to contemporary standards, and that the reason for its rejection is that this atavistic practice simply fails to provide the respect for human dignity that civilized society demands. Wholly apart from the question of unnecessary pain, well-established Eighth Amendment principles dictate that execution by judicial hanging be held to constitute cruel and unusual punishment. Notwithstanding the majority's actions, that will, fortunately, remain the law everywhere in this land but in the Ninth Circuit.

II. Unnecessary and Wanton Pain

282

Even if the majority were correct that Eighth Amendment analysis is limited to the question of unnecessary pain, its conclusion that judicial hanging is constitutional would still be totally wrong. Hanging involves a high risk of pain, far more than is necessary to kill a condemned inmate. If the drop is too short, the prisoner may strangle to death, a slow and painful process. However, the hangman must also be concerned that the drop not be too long, for if it is, the prisoner may be decapitated. As one scholar has explained the risks involved:

283

Before the advent of the "long drop" in the late nineteenth century, death by hanging was often a slow and painful process of strangulation. When the victim is dropped from a sufficient height his vertebrae are dislocated and his spinal cord crushed; unconsciousness is immediate and death follows a short time later. If the drop is too long, however, decapitation occurs. Although hanging has become something of an art in modern times, and may well be painless if properly performed, evidence of bungled hangings abounds: inadvertent decapitation when victims are dropped too long; strangulation when they are dropped too short to break their necks. Strangulation may be the rule rather than the exception. Unconsciousness is supposedly instantaneous even when the neck is not broken, but it is not entirely certain that this is true. If the victim is conscious, death by strangulation must be extremely painful.

284

Martin R. Gardner, Executions and Indignities--An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 39 Ohio St.L.J. 96, 120 (1978) (emphasis added).

285

The risk of a slow, painful death by strangulation or asphyxiation has existed in all hanging cases throughout history. Although the "long drop" reduces the frequency of such painful deaths, a risk remains in every hanging that the prisoner will die through a slow, torturous process. The evidence developed at the hearing made clear that, even though the majority of hangings will result in rapid, relatively painless death, there is a significant risk that any given hanging will result in severe and excessive pain. 30 The evidence also made clear that the Washington state hanging protocol is virtually identical in all relevant respects to the hanging procedures which have caused slow, painful asphyxiations in the past. 31 Faced with this evidence, the district court was under a duty to examine alternative methods of execution and consider whether they might avoid the risks of pain that inhere in hanging. This is especially true in light of the fact that 39 state legislatures have determined that alternative methods are less painful and more humane than hanging, and that only one state other than Washington still has a statute on its books that permits such a form of punishment. Yet the district court refused to consider any evidence which demonstrated that lethal injection avoids the risk of pain associated with hanging. Had the district court done its job properly and compared hanging with other available methods of execution, it would have been bound to conclude that some hangings involve unnecessary pain, and all hangings involve a significant risk of unnecessary pain. Then, assuming that the majority would have still been willing to advance its novel view of the Eighth Amendment, it would nevertheless have been compelled, even under that view, to hold that hanging is unconstitutional.

A. Legal Standards

286

The Supreme Court has made clear that--regardless of any other factors bearing on a punishment's consistency with our standards of decency--a punishment will violate the Eighth Amendment if it " 'involv[es] the unnecessary and wanton infliction of pain,' " Hudson, --- U.S. at ----, 112 S.Ct. at 1001 (citation omitted). Several cases have clarified the meaning of the Eighth Amendment's "unnecessary and wanton infliction of pain" standard. As these decisions demonstrate, the key inquiry in cases of the type before us is whether the pain is necessary. 32 If a punishment inflicts more pain than an available alternative, that punishment will violate the Cruel and Unusual Punishments Clause. As the Supreme Court stated in McCleskey, "any punishment might be unconstitutionally severe if inflicted without penological justification." 481 U.S. at 301, 107 S.Ct. at 1772. Where two alternative methods of punishment serve the same penological goals, but one involves a markedly greater risk of pain, there is no penological justification for using the more painful method. Indeed, the use of the more painful method "is nothing more than the purposeless and needless imposition of pain and suffering." Coker, 433 U.S. at 592 , 97 S.Ct. at 2866 (plurality opinion).

287

In the case of the death penalty, these principles require that a mode of execution carry the minimal practical risk of pain. In addition, it must not unnecessarily "involve torture or a lingering death." Kemmler, 136 U.S. at 447 , 10 S.Ct. at 933 . The Supreme Court has upheld the death penalty because it has concluded that death serves the goals of incapacitation, retribution, and deterrence. See Gregg, 428 U.S. at 183-86 , 96 S.Ct. at 2929-31 (plurality opinion). However, it has never suggested that the state may inflict more pain than necessary to cause death. To the contrary, it has told us that to the extent any method of execution creates more suffering than is necessary to extinguish life, it "results in the gratuitous infliction of suffering," id. at 183 , 96 S.Ct. at 2929, and hence violates the Eighth Amendment. As the Supreme Court stated in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 , 67 S.Ct. 374 , 91 L.Ed. 422 (1947) (plurality opinion), "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely." Id. at 464 , 67 S.Ct. at 376 (emphasis added). 33 In considering whether a method of execution violates the Eighth Amendment, then, a court may not look only at the pain and suffering caused by the challenged method, for it is impossible to determine whether the amount of pain caused by one method is necessary without looking at whether other methods cause less pain. A court must consider whether the method is among the least cruel in light of presently available alternatives. As Justice Powell stated in his dissenting opinion in Furman--an opinion which was later adopted by the Court in Gregg--"[N]o court would approve any method of implementation of the death sentence found to involve unnecessary cruelty in light of presently available alternatives." Furman v. Georgia, 408 U.S. 238, 430 , 92 S.Ct. 2726, 2824 , 33 L.Ed.2d 346 (1972) (Powell, J., dissenting). 34

288

In order to be unnecessarily cruel, a method of execution need not inflict more pain than necessary every time it is employed. For example, a method that leads to painful strangulation in one out of five cases is unnecessarily cruel if there is an alternative method that causes a comparable amount of pain in only one out of 25 cases. There are two reasons for this conclusion. First, when a punishment involves a risk of pain that is greater than the risk involved in alternative punishments, there will be a number of cases in which the punishment actually inflicts pain that could have been avoided. When we examine whether a form of punishment is cruel and unusual, we are not limited to looking at the probable effect of the punishment on the particular case before us; frequently we look, as well, to the effect on cases in general. Second, a punishment which involves a higher risk of causing physical pain will necessarily cause a higher degree of actual psychological pain in all cases. A condemned inmate will always feel some degree of fear, anticipation, and anxiety as he awaits his execution, but, if he knows that he may linger in intense pain before dying, he is subject "to a fate of ever-increasing fear and distress." Trop, 356 U.S. at 102 , 78 S.Ct. at 598-99 (plurality opinion). Thus, if a state chooses to execute defendants, it must adopt a method of execution that minimizes the risk that any person who is put to death will suffer unnecessary pain. 35 Otherwise, the state will have violated the Eighth Amendment. 36

B. Analysis

289

Following the evidentiary hearing we ordered in our limited remand, the District Court issued written findings of fact and conclusions of law. The district court's critical findings were as follows:

290

8. The Washington judicial hanging pr

This text is long and has been trimmed here. Open the source document for the complete record.