# Campbell v. Wood

> Court of Appeals for the Ninth Circuit · February 8, 1994 · 18 F.3d 662

URL: https://www.frixlaw.com/law-library/cases/9486504

## Case

- **Full name:** 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
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** February 8, 1994
- **Citations:** 18 F.3d 662; 1994 WL 33393
- **Precedential status:** Published
- **Opinion:** Dissent by Reinhardt
- **Judges:** Wallace, Browning, Tang, Poole, Nelson, Reinhardt, Beezer, Wiggins, Thompson, O'Scannlain, Kleinfeld
- **Cited by:** 302 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9486504

## How later opinions describe it (automated extraction)

- concluding that Snyder, 291 U.S. at 106, 117, 54 S.Ct. at 332, 336, and Allen, 397 U.S. at 342, 90 S.Ct. at 1060, by rejecting as "mere dicta" earlier statements of non-waivability in, e.g., Hopt and Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), hav…
- holding, in a capital case involving the question of whether the defendant properly waived his right to be present during empaneling of the jury, that “[t]he finding of a knowing and voluntary waiver is a mixed question of law and fact which we review de novo.”
- holding that an evidentiary hearing is not 17 necessary where the federal claim can be denied on the basis of the state court record, and 18 where the allegations, even if true, do not provide a basis for relief
- holding that an evidentiary hearing is not necessary where 6 the federal claim can be denied on the basis of the state court record, and where the 7 allegations, even if true, do not provide a basis for relief
- holding that judicial review of a method of execution “focuses more heavily on objective evidence of the pain involved in the challenged method” (internal quotation marks and citation omitted)

## Opinion text

REINHARDT, Circuit Judge,
with whom Circuit Judges BROWNING, TANG, and D.W. NELSON join, concurring and dissenting:
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
“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.”
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
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 *693 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
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 *694 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
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.
Finally, the majority improperly concludes that the district coúrt 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 *695 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.
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
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.
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 .
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.
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.). “[Pjunishments ‘incompatible with the evolving standards of decency that mark the progress of a maturing society1 or ‘involving] 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, *696 290 , 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.
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 eases 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
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 long *697 er 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).
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.
B. The Objective Evidence That Society Has Rejected Hanging
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 *698 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
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 “[sjociety’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.
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 .
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 *699 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 1980s 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
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, 287 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 eases; 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 eh. 51, §§ 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 modem 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.
*700 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 852-63, 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.
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
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.
C. The Inconsistency of Hanging with Human Dignity
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 *701 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.
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.
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.
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 *702 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.
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, 136-36 , 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.
In short, the Constitution commands that we impose the death penalty in as civilized and non-brutal a manner as possible. I recognize the “oxymoronie” 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.
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 *703 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.
D. The Majority’s Evisceration of the Eighth Amendment
The majority deliberately disregards all questions of savagely, 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 ease in recent years. By its ex cathedra pronouncement, the majority eviscerates not only longstanding Eighth Amendment doctrine but the Eighth Amendment itself.
(1) The Absence of Any Rational Basis for the Majority’s Approach
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 ease. 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.
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 *704 Enmund — two eases which applied the traditional test and struck down punishments because they had been widely rejected by the state legislatures — because “[tjhose 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.
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. 889, 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.
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.
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 *705 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.”
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.
In lieu of making any argument in support of its ultimate proposition that “méthodology 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:
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.
Id. at 1085, 105 S.Ct. at 2162-63 (citations omitted) (emphasis added) (quoting Trap, 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 contéxt 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 *706 arrive at decisions that determine fundamental constitutional rights. 25
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.
(2) The Majority’s Deliberate Disregard of Precedent
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.
*707 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, 1068 (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 modem 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 injeetion violates the Eighth Amendment because “[tjhere 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 “[mjany states have now abandoned other forms of execution in favor of lethal injection”).
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 “[pjublic 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.
By failing to apply the analysis employed in Jackson and all other method of punishment cases, and concluding instead that the *708 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.
(3) The Pernicious Consequences of the Majority’s Rule
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.
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
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
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:
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 fol *709 lows 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.
Martin R. Gardner, Executions and Indignities — An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 89 Ohio St.LJ. 96, 120 (1978) (emphasis added).
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 89 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
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 *710 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).
In the ease 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
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 *711 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 lingér 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
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:
8. The Washington judicial hanging protocol and the Washington State Penitentiary staff’s execution of that protocol has eliminated virtually all possibility of a tortured or lingering death.
9. The Washington judicial hanging protocol and the Washington State Penitentiary staffs execution of that protocol has eliminated virtually all possibility of unnecessary and wanton infliction of pain.
23.. Judicial hanging does not involve torture, lingering death, mutilation, or the unnecessary and wanton infliction of pain.
Findings of Fact and Conclusions of Law at 3, 6. These findings were clearly contrary both to the evidence adduced at the hearing and to the law. • The evidence at the hearing left no doubt that hanging entails a risk of slow, painful strangulation. This risk has existed under all hanging protocols used throughout history, and it is simply fanciful, or worse, to conclude that the Washington protocol, which is substantially the same as these procedures, will eliminate this risk. Indeed, the evidence made clear that the Washington state hanging protocol will have little if any effect on the risk of slow, painful death. Thus, an examination of the record before the district court permits no alternative to a reversal of the district court’s contrary findings on the ground of clear error. Moreover, faced with the indisputable fact that hanging — even in Washington — involves some risk of a painful death, the district court was required to determine whether this risk was necessary. Yet the district court, in addition to erroneously excluding a portion of the testimony offered by Campbell regarding the actual effects of hanging, also refused to consider evidence which would have shown that lethal injection entails substantially fewer risks than does that form of execution. Without this information, the district court had absolutely no basis for concluding that hanging in Washington creates no unnecessary risk of pain. Thus, the district court’s *712 findings and conclusions had no basis in fact or law. 37
The clearly erroneous nature of the district court’s factual determinations is exemplified by the following finding: “Petitioner presented no evidence that a judicial hanging carried out under the United States Army's execution regulation ever resulted in a decapitation, torture, lingering death, or the unnecessary and wanton infliction of pain.” Findings and Conclusions at 2. This finding is ludicrous. Of course Campbell presented no evidence that a hanging carried out under the Army’s regulations resulted in a decapitation — because the Army has never carried out a hanging under these regulations. See Espy Deposition 29. I quote this portion of the district court’s decision simply to illustrate the way the district judge went about performing his constitutional obligations in this critically important proceeding. The end result was that the district court’s opinion contains a series of factual and legal conclusions that are clearly contrary both to the record and to the law. It is particularly regrettable that this occurred in a ease involving the imposition of the death sentence.
1. The Compelling Evidence Regarding the Existence of Pain
There is absolutely no question that every hanging involves a risk that the prisoner will not die immediately, but will instead strangle or asphyxiate to death. This process, which may take several minutes, is extremely painful. Not only does the prisoner experience the pain felt by any strangulation victim, but he does so while dangling at the end of a rope, after a severe trauma has been inflicted on his neck and spine. Although such a slow and painful death will occur in only a comparatively small percentage of cases, every single hanging involves a significant risk that it will occur.
The evidence presented at the hearing made this clear. As the majority rightly notes, hanging can cause death through a variety of mechanisms. See ante at 683-84. In any given hanging, one or more — but not necessarily all — of these pathways will lead to death. Because of individual biological differences, however, it is impossible to determine before an execution which pathway will be the one that kills the prisoner. Transcript at 105-06; 351-53. Indeed, it is often impossible to determine after an execution which pathway actually killed the prisoner. Transcript at 102-03.
The difficulty in determining the pathway that will actually lead to death complicates the issue of whether hanging leads to torture or a lingering death, because some of the pathways to death in judicial hangings cause unconsciousness and death much more quickly than others. While the issue may be complicated, there can be no doubt that the district court clearly erred in determining that hanging would virtually always result in “immediate or near immediate” unconsciousness or death. Findings of Fact and Conclusions of Law at 4. In particular, the district court appears to have concluded that hanging would ordinarily result in occlusion of the carotid arteries, leading to unconsciousness within 6 to 12 seconds. See Findings of Fact and Conclusions of Law at 6. This is just plain wrong. Although arterial occlusion is the pathway which is most likely to lead to near-immediate unconsciousness in a hanging, the evidence presented at the evidentia-ry hearing made clear that it is also the single most unlikely pathway to occur under the Washington protocol. 38
The medical evidence developed at the evi-dentiary hearing is too detailed to discuss in full in the body of this opinion. However, the record shows that there is a fair chance that death will not occur through the relatively quick and painless pathway of arterial occlusion, but instead through a slow, torturous pathway involving asphyxiation. Indeed, the risk of such a pathway inheres in every hanging. See Appendix A, infra p. *713 722-24. Moreover, the mere knowledge that death may be painful is sufficient in itself to cause the condemned inmate severe psychological pain. For these reasons, also, the practice of judicial hanging violates the Eighth Amendment.
This conclusion is not surprising, because every jurisdiction that has ever used hanging as a method of execution has understood that the risk of painful and torturous death exists. Even other states which have executed prisoners by hanging in this century have employed procedures which contemplate that death might actually take quite some time. As Clinton Duffy, the former warden at San Quentin, once described these procedures:
The prisoner remains dangling from the end of the rope for from 8 to 14 minutes before the doctor, who has climbed up a small ladder and listens to his heart beat with a stethoscope, pronounces him dead....
The legal witnesses are dismissed after having signed the usual witness forms. However, the body of the condemned is left hanging below the gallows for an additional 15 to 20 minutes. This is to assure those in charge that ample time has elapsed before cutting the rope in order to make certain of death.
Gardner, supra, at 121 (quoting Clinton Duffy). Despite the fact that the - evidentiary hearing was not conducted before a jury, the district court excluded under Federal Rule of Evidence 403 any evidence providing examples of slow, painful strangulations which had occurred in past hangings (including one ordeal lasting thirteen minutes). Although this evidence was the only direct evidence relating to the risk that hanging will cause a lingering death, the court excluded it because Campbell did not know every detail of the procedures used in these hangings. Campbell did know at the very least, however, that these bungléd hangings occurred after the long drop (designed to minimize the risk of slow strangulation) had become universally employed. The district court unquestionably abused its discretion in refusing to admit this highly probative evidence.'
The district court did, however, as does the majority, rely heavily on its conclusions regarding what happened during the one hanging that has occurred in this nation in the past three decades. Aside from the fact that one painless hanging (if it in fact was painless) would prove absolutely nothing about whether hanging produces a significant number of painful deaths — for example, one painful death out of four or five — reliance on the Westley Alan Dodd hanging’ constitutes simply one further violation of Campbell’s rights to a fair proceeding. The state controlled all of the information relating to Dodd’s execution by limiting access to the execution to people of its choosing and allowing only its own expert to conduct an autopsy on him. Called upon to remedy the state’s manipulation of information, the district court refused Campbell’s motion to have Dodd’s hanging videotaped. Although the district court concluded that such taping — which would have enabled Campbell to develop a far fairer record — would violate Dodd’s right to privacy, Dodd had never raised any objection to it. It was only the state that did. 39 *714 Under the circumstances, there is simply no rational basis for concluding that the state-generated evidence of the Dodd hanging provides any indication that hanging will not cause unnecessary pain. See infra pp. 723-24.
I do not mean to suggest that hanging will always cause a slow and painful death, or even that these results will occur most of the time. Even Campbell’s expert witnesses agreed that hanging will lead to rapid unconsciousness and death in the majority of cases. See, e.g., Transcript at 154-55 (testimony of Dr. James). However, the evidence before the district court overwhelmingly supported the common sense conclusion that the risk of slow, painful asphyxiation exists in every hanging. Only by ignoring the testimony at the evidentiary hearing could the district court have reached a contrary conclusion.
2. The Lack of Probativeness of the Washington Protocol
The evidence before the district court also made clear that the Washington state judicial hanging protocol (otherwise known as the Field Instruction) will have virtually no effect on this risk, because it is indistinguishable in all relevant respects from the hanging procedures which have led to painful strangulation deaths in the past. Reading the majority opinion, one might get the idea that the Washington protocol consists of a detailed series of instructions for varying the rope width and drop distance depending on a variety of factors which might make decapitation more or less likely in a particular prisoner according to the latest medical and scientific knowledge. Both the majority and the district court argue that the protocol has eliminated virtually all risk of decapitation. See ante at 687 n. 17 (“[T]he evidence compels the conclusion that the risk [of decapitation or asphyxiation] has been minimized as much as possible through the adoption of the Field Instruction.”); Findings of Fact and Conclusions of Law at 2-3 (“The Washington judicial hanging protocol and the Washington State Penitentiary staffs execution of that protocol has eliminated virtually all possibility of decapitation.”).
These ipse dixit statements are completely inconsistent will all of the evidence before the district court, however. The official-sounding Field Instruction (which the majority informs us is a “detailed methodology derived from U.S. Army Regulation No. 633-15,” ante at 683) is hardly some set of scientific equations which magically eliminates all possibility of decapitation or strangulation. It is simply a 12-page typed set of operating guidelines for prison officials to follow during an execution. It contains no scientific references, and, in fact, very little of it sets forth the actual procedures for taking human life. Instead, it deals with such issues as the location for housing an inmate sentenced to death, the staff that can be present at an execution, visitation and telephone privileges, media relations, the procedures for moving the inmate to the execution holding cell, crowd control, and the final meal.
The evidence presented at the hearing showed that the crucial parts of the protocol were uncritically copied from a 1959 military execution manual which had never been used and has since been abandoned. The state did not consult a single medical expert in developing the protocol, and it did not even attempt to discover what methodology the military had employed in creating its 1959 procedures. In addition, the state did not take account of recent developments in forensic pathology which show that the more common pathways to death in a judicial hanging are different from what medical experts had thought in 1959. See Appendix A, infra, pp. 724-25.
The evidence at the hearing also showed that prison authorities could not detect special strangulation risks posed by the physical characteristics of individual prisoners, nor could they effectively alter the protocol to account for these differences. This is because the prison employs only relatively untrained physician’s assistants for the task of conducting a medical inspection of the prisoner and because the crucial physical characteristics which affect strangulation risks often cannot be detected even by highly trained medical personnel. The evidence clearly showed that the protocol would have virtually no effect on the risk of slow stran *715 gulation. The majority’s reliance on this document constituted clear error.
3. The District Court’s Perverse Refusal to Consider Evidence Regarding Alternative Methods of Execution
Faced with the undeniable fact that hanging involves a risk that the condemned inmate will die a slow and painful death, the district court was required to consider whether this risk was necessary. Because such a determination is impossible without considering whether other m'ethods of execution avoid or significantly lessen this risk, the district court was required to consider the relative merits of alternative methods of execution. Yet it refused to consider any evidence relating to any method of execution other than hanging. See Transcript at 290-91. In particular, the court refused to allow Campbell to present any live testimony showing that lethal injection does not present the risks of decapitation and painful death that hanging does, and it refused to consider the deposition testimony on this issue which Campbell submitted. Because the district court prevented Campbell from showing that execution by lethal injection involves less pain than execution by hanging, it precluded him from showing that the pain' associated with hanging is unnecessary to the termination of human life. Justice Powell would surely have been surprised at the district court’s rulings. See Furman, 408 U.S. at 430 , 92 S.Ct. at 2824 (Powell, J., dissenting) (“[NJo court would approve any method of implementation of the death sentence found to involve unnecessary cruelty in light of presently available alternatives.”). He would have been even more astonished by the majority’s cursory and unexplained endorsement of them. 40
Campbell offered a great deal of deposition testimony relating to lethal injection. This testimony — which was unrefuted — made clear that lethal injection poses substantially less risk of a painful and lingering death than does hanging. 41 Both Dr. Longstreth and Dr. Graney noted that lethal injection significantly decreases the risk that the prisoner will feel pain, because the drug sequence in lethal injection begins with a sedative which almost always guarantees immediate loss of consciousness. Graney Deposition at 62-63; Longstreth Deposition at 63-65. As noted above, there are many cases in which hanging does not cause immediate loss of consciousness, although it does cause immediate spinal cord damage and paralysis. In these cases, hanging is like a lethal injection without the sedative, and it causes “a lingering death.” Kemmler, 136 U.S. at 447, 10 S.Ct. at 933. Because the risk of prolonged suffering can be eliminated by employing the lethal injection technique, it is unnecessary to subject prisoners to that risk. For that reason alone, hanging is unconstitutional.
The fact that hanging causes unnecessary pain on a number of occasions is graphically illustrated by current standards of medical research. As both Dr. Longstreth and Dr. Graney testified, no university or scientific journal would allow an experiment in which animals were euthanized by hanging. Because hanging creates a risk of pain and paralysis, and does not reliably lead to immediate unconsciousness, it would not satisfy contemporary standards of research ethics. Instead, universities and other agencies doing research that involves the killing of animals require that a sedative be administered to the animal first, as in lethal injection. Longstreth Deposition at 63-65. Graney Deposition at 64-65. 42
*716 These practices of medical researchers are exactly the kind of “objective evidence of the pain involved” on which the majority states we should rely. Ante at 682. They show quite clearly that hanging involves a greater risk of pain than is necessary to cause death, because alternatives such as lethal injection can achieve that result without causing these risks. However, the district court refused to consider any of this information. See Transcript at 290-91. The court thus had no basis in fact or law for its finding that hanging presents no unnecessary risk of pain.
The majority concludes that the district court did not err in refusing to consider evidence relating to lethal injection. The majority states, correctly, that the hearing in this case involved only the question of whether hanging was unconstitutional. But there can simply be no plausible or rational explanation for the majority’s next assertion, that “[t]he relative merits of lethal injection are irrelevant to this question.” Ante at 687. 43 The risk of pain involved in alternative means of execution is obviously extremely relevant — indeed essential — to the question of whether hanging creates an unnecessary risk of pain. It is simply impossible to consider whether the risks involved in hanging are necessary without considering whether other methods of inflicting death avoid these risks. By showing that lethal injection presents substantially less risk of pain than hanging, Campbell has shown that hanging involves more than “the necessary suffering involved in any method employed to extinguish life humanely.” Resweber, 329 U.S. at 464 , 67 S.Ct. at 376 . The district court unquestionably erred as a matter of law in refusing to consider this evidence, and the majority’s refusal to so hold is wholly unsupportable.
III. Conclusion
Hanging is a violent, mutilative, barbaric procedure that has been resoundingly rejected by modern American society. Indeed, our society began rejecting it over a hundred years ago. Even aside from the risks of decapitation and lingering, painful death, hanging is simply inconsistent with “ ‘the dignity of man, ’ which is the ‘basic concept underlying the Eighth Amendment.’” Gregg, 428 U.S. at 173 , 96 S.Ct. at 2925 (opinion of Stewart, Powell, Stevens, JJ.) (quoting Trop, 356 U.S. at 100 , 78 S.Ct. at 597 ). The state of Washington shows absolutely no respect for human dignity when it seeks to kill a person by stretching his neck at the end of a rope so that his spine will be torn apart; yet that is exactly the goal of judicial hanging. One veteran participant described a typical hanging this way:
When the trap springs he dangles at the end of the rope. There are times when the neck has not been broken and the prisoner strangles to death. His eyes pop almost out of his head, his tongue swells and protrudes from his mouth, his neck may be broken, and the rope many times takes large portions of skin and flesh from the side of the face that the noose is on. He urinates, he defecates, and droppings fall to the floor while witnesses look on, and at almost all executions one or more faint or have to be helped out of the witness room.
Gardner, supra, at 121 (quoting Warden Clinton Duffy).
Hanging is, without the slightest doubt, “cruel and unusual” — in layman’s terms and *717 in the constitutional sense. No other answer is consistent with our claim to be an enlightened and civilized nation. In Anno Domini 1994, when almost every state and most other nations have rejected such a savage and barbaric method of killing its citizens, no court could in good conscience say that hanging comports with our “evolving standards of decency.” It is inconceivable to me that in one corner of our vast and proud country, a single judicial circuit is willing to violate its constitutional obligations and permit this unconscionable and long outmoded practice to exist.
In a time when public fear of crime and violence is high, it may be understandable that some judges will on occasion close their eyes to the dictates of the Constitution, and employ whatever form of rationalization or self-deception will lead them to the result they deem expedient. Here, however, there is not even any such excuse for the majority’s actions. The issue before us is not whether Campbell will be executed, but only the method by which he will be put to death. Thus, the majority’s decision to disregard all relevant Supreme Court precedent is simply inexplicable. Still, democracy has proved resilient and our Constitution has grown stronger as time has passed, notwithstanding temporary setbacks at the hands of courts motivated on occasion by political objectives. It has grown stronger in , part because the judiciary on the whole has proved to be courageous, independent, and fair minded. The courts have usually corrected their own sins and errors long before they became irremediable. In this ease, as in others, the Constitution will ultimately emerge unscathed. It is only this court that will be diminished by what the majority does today.
Until we reverse today’s decision, our circuit will have a blotch on its reputation that will be a constant embarrassment to us all. I hope that before long we will be able to comprehend what has for some time been apparent to most of the rest of the civilized world. If not, the Supreme Court will undoubtedly be required to explain the meaning of the Eighth Amendment to us, either in this case or some other. In any event, I have no doubt that we will be compelled — if not today then some day — to perform our duty under the Constitution: We will be required to inform Washington and Montana that the state may not take the life of a citizen by so cruel and unusual a means. Without question, and despite the decision of my colleagues, hanging violates the Constitution. I dissent.
Appendix A — The Facts Developed at the Evidentiary Hearing
The evidence presented on remand clearly showed that hanging creates a significant risk both of decapitation and of slow asphyxiation. The evidence also showed that the Washington state hanging protocol is essentially useless in reducing these risks. The district court’s findings that the protocol has eliminated virtually all risk of decapitation and lingering death are completely contrary to the evidence presented at the hearing and thus clearly erroneous.
A. The Risk of Decapitation ■
As the majority notes, the earliest methods of hanging involved little or no drop. The English used this so-called short drop method exclusively until the mid-19th Century, when the Irish developed a method involving a much longer drop. By the end of the 19th Century, the British had abandoned the short drop method entirely. They instead employed a procedure involving a drop length which varied according to the weight of the prisoner. The executioner would determine the length of the drop by looking up the prisoner’s weight on a table and setting the drop length indicated for that weight. Washington employs a very similar method of hanging, and its drop length/weight table is quite similar to the one used by the British after the late 19th Century, although there are some differences. See Transcript at 143.
The British abandoned the short drop because it often led to painful death by slow suffocation. The long drop had some problems of its own, however. While the energy created by dropping the prisoner several feet was much more effective in causing a quick death, it was also much more effective in decapitating the prisoner. Despite the decapitation risks, the British concluded that *718 the long drop was a more humane form of hanging than the short drop. As stated by the Royal Committee:
We are desirous, however, of recording our opinion with respect to “decapitations,” that if the condition of the culprit is such as to suggest the risk on the one hand of decapitation, or, on the other, of death by strangulation, i.e., of pain needlessly prolonged, we' have no hesitation in saying that the risk of decapitation should be incurred. It involves no pain, for the culprit is already unconscious; whereas the fear of public censure has, as we have . already stated, on several occasions led to an unnecessary prolongation of his sufferings.
Report of the Committee Appointed to Inquire into the Execution of Capital Sentences xiii (1886). Although the Royal Committee understood that a long drop created a risk of decapitation, it decided that this risk was worth taking where the only alternative — a short drop — created an increased risk of slow, painful strangulation. 44
Because Washington employs a long drop, it comes as no surprise that a risk of decapitation exists under the Washington hanging procedure. Indeed, every single expert who testified at the evidentiary hearing acknowledged at one point or another that some prisoners who are hanged in Washington may be decapitated. See, e.g., Transcript at 43, 101-02, 120-21 (testimony of Campbell’s witness Dr. Deryk James); id. at 273 (testimony of State’s witness Dr. Ross Zumwalt); id. at 332 (testimony of State’s witness Dr. Donald Reay); id. at 421, 442 (testimony of State’s witness Dr. Boyd Stephens); id. at 477-78, 480, 490-91, 497 (testimony of Campbell’s witness Dr. Allen Tencer).
Despite this testimony, the district court found that Campbell “presented no credible evidence that there was more than a negligible risk of decapitation under Washington’s judicial hanging protocol.” Findings of Fact and Conclusions of Law at 6-7. However, Campbell in fact presented solid, highly credible evidence that a significant risk of decapitation exists under Washington’s protocol. Campbell’s expert witnesses had studied the mechanics of judicial hanging, as well as past hangings which led to decapitation, and they fully and persuasively explained why hanging — even under the Washington protocol— created a risk that prisoners’ heads would be cut off. The state’s witnesses simply testified in conclusory terms that hanging in Washington would not present such a risk. Yet they had absolutely no basis for these conclusions — they were not familiar with the protocol, the medical literature, or historical examples of hangings which caused decapitation. Once this information was brought to the attention of the state’s experts, they uniformly admitted that the risk of decapitation was greater than they had earlier thought. It was the state which failed to present credible evidence, not Campbell. The district court’s findings to the contrary were clearly erroneous.
Dr. Deryk James, senior registrar in forensic pathology at the Wales Institute of Forensic Medicine, testified that it is “very likely” that the Washington hanging protocol will produce one or more instances of decapitation if it is implemented regularly over the next ten or twenty years. Transcript at 120. Dr. James, who conducted a groundbreaking study of the mechanisms of death in judicial hanging, 45 reached this conclusion by comparing the Washington protocol with those hanging protocols which have led to decapitation in the past:
[I]f one looks at the drops that have previously caused decapitation and the weights of the people involved, the thickness of the rope, then if, for example, those people *719 that were hanged then were hanged now, using the table given, I think one of them would have been given a longer drop, the other would have been a slightly shorter drop, but I think both of those would be at a high risk of decapitation.
Transcript at 121.
Dr. Allen F. Tencer elaborated on Dr. James’s conclusions. Dr. Tencer is Director of the Biomechanics Laboratory at Harbor-view Hospital, as well as a professor in the University of Washington’s Departments of Orthopedic Surgery and Mechanical Engineering and its Center for Bioengineering. He specializes in the biomechanics of the spine and spinal trauma. See generally Transcript at 458-62. After studying the details of the Washington hanging protocol, 46 Dr. Tencer concluded that a possibility of decapitation remained. Transcript at 477. Indeed, he explained, the Washington protocol actually enhanced the possibility of decapitation by requiring the rope to be treated to remove its elasticity. 47 As he explained on direct examination:
Q. And what is the effect if the rope is treated, as it is recommended to be, as set forth in the Washington protocol, to the end that as much elasticity as possible is removed from the rope?
A. Well, what happens in your system, if the rope is stiffer, more energy and higher force is delivered to the spine.
Q. Does that have any impact on the likelihood that a decapitation would occur in a judicial hanging?
A. Yes, because when you’re trying to achieve the injury that apparently is being achieved here, that is, to pull the spine apart, as soon as you do it, there isn’t very much else there to guarantee that the neck will stay together. It’s just musculature.
What I’m really trying — you’re walking a very fine line here between having enough energy and enough force to pull things apart, but not too much energy or too much force to create a catastrophic, quote, injury, which would be the neck— the head actually coming off. The reason is the spine itself is the structure that absorbs by far the greater amount of the energy.
Q. And is the protocol set forth in the Washington state manual, the weight and length of drop, sufficient to assure that fine balance that you’ve just spoken of?
A. No.
Transcript at 490-91.
By contrast with the detailed testimony of Doctors James and Tencer, which was quite evidently based on a good deal of study and knowledge concerning judicial hanging and the processes by which it causes death, the testimony of the state’s experts was simply not credible. For example, Dr. Ross Zum-walt, the chief medical examiner for the state of New Mexico, testified that decapitation was not “absolutely impossible,”
But I don’t see how it could happen based on that length of drop, the noose diameter as described and policy used by the Washington state criminal system.
Transcript at 236-37. Yet Dr. Zumwalt did not explain what it was about the drop length or noose diameter that led him to this conclusion.
Indeed, the cross-examination made quite clear that Dr. Zumwalt had no basis whatsoever for his conclusions. On cross, Dr. Zum-walt stated that his conclusion regarding the rareness of decapitations in judicial hanging *720 was based on two sources: Ms experience in performing autopsies on automobile accident victims who had been decapitated, and the “calculation and consideration of what forces I think would occur in a judicial hanging.” Transcript at 267. Yet Dr. Zumwalt admitted that his experience with automobile accident victims actually gave him no ability to determine how much force is sufficient to produce decapitation. 48 Dr. Zumwalt also admitted that he had made no attempt to investigate any of the facts or medical literature regarding decapitations wMch had occurred in previous hangings. See Transcript at 270-73. When a colleague informed Dr. Zumwalt that a decapitation had occurred during the hanging of Black Jack Ketchum in Dr. Zumwalt’s home state of New Mexico, he did not make even the slightest effort to acquaint himself with the facts of that case. When, at the hearing, Campbell’s counsel showed Dr. Zumwalt several photographs of the Ketchum decapitation — the first time Dr. Zumwalt had seen them — Dr. Zumwalt altered his earlier opmion of the decápitation risks inherent in hanging. Noting that Ket-chum’s hanging involved a similar drop length and rope width to that in the Washington protocol, Dr. Zumwalt admitted that there was a greater risk of decapitation than he had earlier thought. Transcript at 271-73. 49
The testimony of Dr. Donald Reay, King County’s chief medical examiner, was if anything even more baseless and conclusory. Dr. Reay testified that it was unlikely that the Washington state execution protocol would lead to decapitation:
Q. Doctor, directing your attention once again to Respondent’s ExMbit No. 1, which is the execution protocol. If the provisions of that policy are followed relative again to weaving the noose, et cetera, and the appropriate drop length is determined, how likely' do you think it is that a decapitation will occur?
A. I don’t think decapitation is likely, certainly. Doing — examining the neck, and I did this twice today already, it’s a very resilient structure, the body is quite resilient.
Q. But you don’t deny though, sir— excuse me, Doctor, that some decapitations have occurred as a result of judicial hangings?
A. It could have happened. I think you could fashion a circumstance where it might happen. You could choose the victim’s physical stature; the structure would ' make a difference.
*721 Q. Doctor, the drop lengths that are provided for in Respondent’s Exhibit 1, page seven, as it relates to a corresponding body weight, do you believe that executing a person of those weights and dropping them the corresponding lengths is likely to result in decapitation?
A. No, I don’t think those drops would produce decapitation.
Transcript at 322-23. Dr. Reay gave no further explanation.
Given his responses, one might expect that he had actually reviewed the Washington state protocol or perhaps done some research regarding the effects of different drop lengths on people of different weights. Yet he did not perform any of this necessary preparation:
Q. Doctor Reay, have you had an opportunity prior to coming to Court today to review the drop lengths that correlate to the weights set forth on page seven of the exhibit?
A. They have been available to me. I have not studied them.
Q. You have not studied them. Have you conducted any type of research into correlating body weight to drop length in judicial hangings?
A. I have not done any drop lengths, anything of that sort.
Transcript at 311. 50 Like Dr. Zumwalt, then, Dr. Reay had absolutely no basis for his conclusion that the Washington state hanging protocol would not create a risk of decapitation. He had not seriously reviewed the protocol, and he had not consulted any of the literature on judicial hanging or done any of his own research on the subject. 51
Dr. Boyd Stephens, the San Francisco medical examiner, had at least reviewed some of the medical literature on judicial hanging, but his testimony was also the most equivocal of all of the state’s experts. On direct examination, he stated that he thought that decapitation would be “a very unlikely event” under the Washington protocol. 52 It became clear on cross-examination, however, that Dr. Stephens’s opinion was based on a misunderstanding of the details of the Washington protocol. In coming to his conclusion regarding the risks under the Washington protocol, Dr. Stephens had relied on what he thought was the fact that the protocol provided for variations in the drop length based on anatomical differences of the prisoner. On cross-examination, he admitted that he had been mistaken. 53 Finally, Dr. Stephens forthrightly acknowledged that the data on judicial hanging are so limited that all of his *722 conclusions entailed a good measure of uncertainty. Transcript at 448-49.
The district court also improperly excluded photographs of the execution of Black Jack Ketehum, who was hanged in New Mexico in 1901. ■ These photographs clearly showed that Ketehum had been decapitated. The district court excluded these photographs under Federal Rule of Evidence 403, which allows a court to exclude relevant evidence if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Becausé Campbell did not know the exact drop length, rope width, and so forth, used in the Ketehum hanging, the district court concluded that the relevance of the photographs was substantially outweighed by countervailing considerations.
However, Campbell did provide a great deal of - information about the procedures used in the Ketehum hanging. While this information was not as specific as the Washington Field Instruction, it did indicate that the procedures used in the Ketehum hanging were quite similar to those used in Washington today. For example, Campbell was able .to discern the knot placement in the Ket-chum execution, as well as to provide general parameters for the rope width and drop length, as well as a general estimate of Ket-chum’s weight. Transcript at 272, 283.
This information would have allowed the court to compare the procedures that were employed in the Ketehum execution with those that are employed in Washington. Because of the similarities between these two procedures, the photographs would have been relevant — although not dispositive — evidence that a hanging protocol like that adopted in Washington state entailed a risk of decapitation. Aside from the state’s own autopsy of Westley Alan Dodd, practically no other evidence of the results of past hangings exists. Under these circumstances, the district court abused its discretion in refusing to admit the photographs.
Taken as a whole, the testimony admitted at the hearing made clear that hanging entails a significant risk of decapitation, even as practiced in Washington. The Ketehum photographs would have made this fact even more clear. The state’s baseless and conclu-sory testimony to the contrary simply did not deserve any weight in the District Court’s decision.
B. The Risk of Slow, Painful Death
The district court concluded that “hanging under the Washington procedure would result in occlusion of the carotid arteries, causing unconsciousness within 6 to 12 seconds, and thereafter causing a quick and painless death.” Findings of Fact and Conclusions of Law at 6. However, the district court ignored the persuasive and unrefuted testimony that the Washington protocol would not cause sufficient arterial occlusion to lead to nearly immediate unconsciousness in all cases. This testimony made clear that a risk of asphyxiation remains, and that death through a pathway involving asphyxiation might take several minutes.
The district court heard testimony that unconsciousness would occur within .six to twelve seconds if the hanging caused a complete occlusion of the carotid arteries, 54 The six to twelve second figure came from experiments the state’s expert Dr. Reay conducted using the so-called “carotid sleeper- hold.” The carotid sleeper hold is a form of choke-hold used by law enforcement personnel to subdue suspects. The officer places the individual’s neck between the arm and forearm, with the elbow facing away from the suspect’s face. The officer applies pressure to both carotid arteries but leaves the airway unobstructed. This procedure is designed to occlude both carotid arteries rapidly. Transcript at 300-01. Dr. Reay conducted exper *723 iments with the carotid sleeper hold on several FBI agents and found that the agents all became unconscious within six to ten seconds of the time their carotid arteries were occluded. Transcript at 301.
For the district court to have concluded that hanging causes unconsciousness within six to ten seconds, it must necessarily have concluded that hanging under the Washington protocol would reliably lead to rapid, complete occlusion of both carotid arteries. However, according to the unrefuted testimony of Dr. James, the Washington state judicial hanging protocol does not maximize the possibility that such occlusion will occur. The protocol calls for the knot to be placed high on the neck, snugly under the left ear. As a result of this knot placement, the bulk of the energy from the drop will be transferred to the right side of the prisoner’s neck. While the right carotid will certainly be occluded, it is far less likely that the left carotid will be. Transcript at 111-14. The occlusion of only one carotid is insufficient to cause rapid unconsciousness, however, because the other carotid and the two vertebral arteries will compensate. Transcript at 112-13.
The testimony makes clear that the Washington judicial hanging protocol cannot reliably be counted on to cause rapid occlusion of both carotid arteries. See Transcript at 111-14; Graney Deposition at 29, 34, 37; Longstreth Deposition at 16. 55 As likely, the protocol could cause a spinal injury which paralyzes the prisoner yet leaves him conscious. In such a case, the prisoner would die of asphyxiation, after up to two minutes of conscious suffering. Longstreth Deposition at 42, 51. The district court thus clearly erred in determining that hanging under the Washington protocol would lead to rapid unconsciousness and death in virtually all cases.
The district court and the majority also rely much too heavily on the results of West-ley Alan Dodd’s autopsy, which they construe as showing that he died quickly and painlessly. 56 This reliance is misplaced, for several reasons. First, as both Campbell’s experts and the state’s experts explained, it is impossible to generalize from any single hanging to predict what the results of a future hanging will be. There are simply too many possible pathways to death, and too many variables that determine what pathway or pathways will occur in a particular case, to use any one case as a predictor for all future cases. See, e.g., Transcript at 445, 450-51 (testimony of the state’s expert, Dr. Stephens). Thus, even if Westley Alan Dodd was killed quickly and painlessly, this is anything but a guarantee that Charles Campbell or any other prisoner will not suffer a lingering death.
Second, to put it bluntly, the evidence regarding the Dodd execution has been manipulated by the state. It is a well-understood fact in American law that expert opinions often conflict and always serve the interests of the parties who seek to introduce them in court. We ordinarily understand that the truth is most readily uncovered when each party has equal access to the evidence and its own expert witness to examine and interpret the relevant facts. The court or jury can then weigh the expert opinions against one another and determine which is more credible.
Here, however, the state completely controlled all of the information relating to the Dodd execution, as well as to past executions. The state limited access to the Dodd execution to people of its own choosing and allowed only one expert — its own — to conduct an autopsy on Dodd. Not surprisingly, that expert testified that Dodd died quickly and painlessly. In addition, the district judge in this case prevented Campbell from develop *724 ing any of his own independent evidence relating to the Dodd execution by refusing his request to videotape Dodd’s hanging so that a fair record could be made. Dodd did not object to Campbell’s request — only the state did. See Campbell v. Blodgett, 982 F.2d 1356 (9th Cir.1993). Had the state allowed Campbell’s expert to conduct an autopsy — or had the district court granted Campbell’s motion to videotape Dodd’s hanging — the district court would have been presented with a fuller, fairer analysis of what the results of that hanging actually were.
The state’s manipulation of evidence regarding hangings extends beyond the Dodd execution. Between 1909 and 1982, it was a misdemeanor in the state of Washington for anyone to publish the details of any execution. See former Wash.Rev.Code § 9.68.020. In addition, prior to the Dodd execution, no autopsy of a hanged inmate had ever been done in Washington state. Thus, only a very small universe of evidence existed regarding the results of hanging, in large part due to the state’s suppression of information. The district court only exacerbated the problem caused by this paucity of evidence by excluding various evidence of two hangings which resulted in slow, painful deaths — one ordeal taking thirteen minutes. Although Campbell did not know all of the details of the procedures employed in these hangings, he did know that they occurred after the long drop had become universally employed. Thus, the evidence of these hangings was relevant and highly probative to show that a risk of lingering death remained even after adoption of the long drop. Because this was practically the only evidence available on these risks, the district court abused its discretion in refusing to admit it.
C. The Washington Hanging Protocol
As I explained in the body of this opinion, the district court clearly erred in relying on the Washington state hanging protocol (also called the Field Instruction) to conclude that hangings in Washington will not be subject to the strangulation and decapitation risks that have afflicted hangings throughout history. The Field Instruction is a 12-page typed document that is devoted largely to administrative details such as media relations, crowd control, and the last meal. Less than two and a half pages of the Field Instruction set forth the actual procedure for hanging condemned inmates. Of these pages, only three instructions had anything to do with the risk of decapitation: the chart which determined a prisoner’s drop length, 57 the instruction which set forth the width and treatment of the rope, and the instruction which stated that the knot would be placed behind the prisoner’s left ear. All of these instructions — including the drop chart — came from a military execution manual prepared in 1959. See Transcript at 175 (testimony of Tana Wood).
Superintendent Wood oversaw the drafting of the Field Instruction. Transcript at 160. As she testified, the state simply lifted the crucial portions of its protocol directly out of the 1959 military execution manual. The state did not look to any other information regarding hanging procedure, nor did it do any research regarding prior executions in Washington, nor did it seek any advice from medical professionals. It just copied the procedures the military had adopted in 1959. Superintendent Wood explained that, although she had no idea how the military execution manual was prepared — or even whether the military had ever hanged anybody according to the procedures in the man *725 ual (it had not) — she relied on the manual “[b]ecause it came from the military.” Transcript at 178.
Leaving aside the fact that military procedures are hardly known for their accuracy or humanity, and leaving aside, the fact that Superintendent Wood has no idea how or even whether the military personnel who put together the execution manual sought to minimize the risk of decapitation, the state ought to have been particularly wary of blindly adopting the military execution manual’s procedures for hanging. The manual was, after all, prepared in 1959, and it adopted a drop chart that was quite similar to the one employed in Britain in the late 19th Century. Yet scientists have learned a great deal about the biomechanics of judicial hanging since 1959. Until Dr. James’s groundbreaking study, the conventional expert wisdom held that hanging usually caused death by breaking the prisoner’s neck. Thus, those designing hanging procedures sought to create enough force to break the neck, in order to avoid death by slow strangulation. Dr. James’s research proved, however, that breaking of the neck is not a very common pathway to death in judicial hanging. See Transcript at 446-47 (testimony of state’s witness Dr. Boyd Stephens). Thus, someone designing a hanging procedure today might seek to transfer less kinetic energy to the neck and hence decrease the risk of decapitation. Because the Washington state procedures were adopted from a military manual which could not have taken account of any of these developments in medical research, it can hardly be said to minimize the risk of decapitation in light of presently available alternatives. Cf Albert Camus, Reflections on the Guillotine (“The truth is that in an atomic age we kill as we did in the age of steelyards ... science, which has taught us too much about killing, could at least teach us to kill decently.”).
The district court seemed to rely heavily on the fact that the prison staff conducts various rehearsals of the hanging procedure in the weeks preceding an execution. See Findings of Fact and Conclusions of Law at 2-3 (“The Washington judicial hanging procedures are practiced frequently during the weeks prior to a scheduled execution by the staff of the Washington State Penitentiary.”). Yet these rehearsals have virtually nothing to do with reducing the risk of decapitation.
Like the Field Instruction itself, the rehearsals are tailored primarily to the institutional goals of aiding'a government agency in administering a complex procedure, rather than the medical goals of reducing the risk of mutilation of the prisoner. Thus, prior to the Dodd execution prison officials rehearsed the positioning of the witnesses and law enforcement personnel during the execution. Using a stand-in, they determined how long it took for the prisoner to walk from the cell to the death chamber. They also practiced opening and closing the curtains, as well as making sure the doors were locked. Most relevantly, they practiced putting on the hood, leg restraints, and noose, and they conducted at least one practice hanging using a sand bag in place of a person. Transcript at 162-66. None of these acts of rehearsal could significantly reduce the risk of decapitation, however, because they could not tell the prison officials anything about the ease with whieh the particular prisoner’s head would come off.
The district court also seemed to rely on its finding that “[t]he Superintendent of the Washington State Penitentiary has authority to alter the judicial hanging protocol in accordance with the advice of medical experts to accommodate any unusual physical or medical abnormalities of the person to be hanged.” Findings of Fact and Conclusions of Law at 3. 58 This reliance is doubly flawed. First, it is not clear that the Superintendent actually has the authority that the district court concluded she had. Superintendent Wood herself stated that the drop length would always follow the chart, and that the Washington protocol did not provide for adjustments due to the age, health, and muscular condition of the prisoner. See Transcript *726 at 183-86. However, she also stated that she thought that the ability to depart from the drop chart was “implicit in [her] position and authority.” Transcript at 190.
Even if the Superintendent does have the authority to vary the drop length depending on the individual characteristics of a specific prisoner, the district court heard persuasive and unrefuted evidence that the state would be unable to detect those characteristics which made decapitation more likely. Superintendent Wood testified that, prior to the execution, a physician’s assistant would perform a medical “inspection” focusing on the prisoner’s height, weight, and veins. Transcript at 186. Yet as Dr. Tencer testified— and no witness contradicted him on this point — far more than these three variables may determine whether an individual is likely to be decapitated. Other crucial factors include the size of the prisoner’s vertebrae, his bone density, the mineral content of his bones, his lifestyle, and the rate of loading. Transcript at 482-87. Many of these factors could not be detected in a comprehensive examination by a highly trained physician, much less in a cursory “inspection” by a physician’s assistant. 59 Even if the Superintendent can vary the protocol, therefore, this fact does not measurably decrease the likelihood of decapitation. 60
Finally, as noted above, the district court failed to consider the fact that the state’s treatment of the rope to remove all elasticity — a procedure which the state proudly pointed to in arguing that its protocol would lead to a rapid death — actually increased the risk of decapitation. As all of the witnesses understood in this case, there is a tradeoff between increased risk of decapitation and decreased risk of asphyxiation. Yet the district court and the majority here let the state have it both ways by relying on the state’s treatment of the rope in holding that death will be rapid, see ante at 684-85, while stating that the protocol also minimizes the risk of decapitation.
In sum, the reliance the majority and the district court place on the Field Instruction is misplaced. The district court heard persuasive and unrefuted evidence that the protocol will not decrease the risk of decapitation — in fact, it will increase this risk. The district court’s factual findings to the contrary are clearly erroneous.
Appendix B — The Rejection of Hanging in the United States
The following states abandoned hanging as a method of execution on the following dates:
Alabama — 1923. See 1923 Ala.Acts No. 587 (changing from hanging to electrocution).
Alaska — Alaska has not had the death penalty since statehood.
Arizona — 1933. See Ariz. Const, art. 22, § 22 (approved October 3, 1933) (changing from hanging to lethal gas).
Arkansas — 1913. See 1913 Ark. Acts No. 55 (changing from hanging to electrocution).
California — 1937. See 1937 Cal.Stat. ch. 172, § 1 (changing from hanging to lethal gas).
*727 Colorado — 1933. See 1933 Colo.Sess.Laws ch. 61, § 1 (changing from hanging to lethal gas).
Connecticut — 1935. See 1935 Conn.Pub. Acts ch. 161, 266 (changing from hanging to electrocution).
Delaware — 1986. See 65 Del.Laws ch. 281, § 1 (1986) (changing from hanging to lethal injection)'.
Florida — 1923. See 1923 Fla.Laws ch. 9169 (changing from hanging to electrocution).
Georgia — 1924. See 1924 Ga.Laws 195, § 1 (changing from hanging to electrocution).
Hawaii — Hawaii has not had the death penalty since statehood.
Idaho — 1978. See 1978 Id.Laws ch. 70 (changing from hanging to lethal injection).
Illinois — 1927. See 1927 Ill.Laws 400 § 1 (changing from hanging to electrocution).
Indiana — 1913. See 1913 Ind.Acts ch. 315 (changing from hanging to electrocution).
Iowa — 1965. See 1965 Iowa Acts ch. 435, 436 (abolishing the death penalty at a time when the state employed hanging as a method of execution).
Kansas — 1977. Although hanging has not been formally abolished as a method of execution, there is no longer any offense for which capital punishment is authorized in that state.
Kentucky — 1938. See 1938 Ky.Aets ch. 132, § 1137 (changing from hanging to electrocution).
Louisiana — 1940. See 1940 La.Aets No. 14 (changing from hanging to electrocution). See also State ex rel. Pierre v. Jones, 200 La. 808 , 9 So.2d 42, 43 (1942) (noting that the state justified the change on the grounds that “electrocution is recognized as a more humane and less painful manner or means of carrying out the death penalty than by hanging”); Helen Prejean, Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States 18 (1993) (“Louisiana used to hang its criminals until the state legislature in 1940 decided that electrocution would be more humane and efficient.”).
Maine — 1887. See 1887 Me.Laws eh. 133 (abolishing the death penalty at a time when the state retained hanging as the method of execution).
Maryland — 1955. See 1955 Md.Laws ch. 625 (changing from hanging to lethal gas).
Massachusetts — 1898. See 1898 Mass.Aets ch. 326, § 6 (changing from hanging to electrocution); see also In re Storti, 178 Mass. 549 , 60 N.E. 210 , 210 (1901) (Holmes, C.J.) (stating that the change from hanging to electrocution was “devised for the purpose of reaching the end proposed as swiftly and painlessly as possible”).
Michigan — 1963. See 1963 Mich.Pub.Acts No. 119 (abolishing the death penalty at a time when the state retained hanging as the method of execution).
Minnesota — 1911. See 1911 Minn.Laws ch. 387 (abolishing the death penalty at a time when the state retained hanging as the method of execution); see also Grant Moos, Newspaper Details of 1906 Hanging Made it State’s Last, Minneapolis Star Tribune, March 26, 1992, p. 19A (stating that “the gruesome, slow death” of William Williams, who was hanged in 1906 and took 14jé minutes to die, “began a six-year movement in the Minnesota Legislature to abolish the death penalty, which finally succeeded in 1911”).
Mississippi — 1940. See 1940 Miss.Laws ch. 242 (changing from han

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9486504. Public record. Not legal advice.