NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 1: Capital Punishment Handbook: Constitutionality And Other General Considerations

        1.8  Method Of Execution
               1.8.1  Electrocution
               1.8.2  Lethal Gas
               1.8.3  Lethal Injection
               1.8.4  Hanging
               1.8.5  Firing Squad
               1.8.6  Choice Of Method Of Execution        

Of the current methods used to impose the death penalty in America–electrocution, lethal gas, lethal injection, hanging, and firing squad–the Supreme Court has specifically found electrocution and the firing squad to be constitutional as not violative of the Eighth Amendment prohibition against cruel and unusual punishment. The Court also has denied certiorari on claims that lethal injection and hanging areunconstitutional.

The Ninth Circuit has held that lethal injection and hanging are both constitutional execution methods. Although the Ninth Circuit has ruled more than once that execution by lethal gas is unconstitutional, the Supreme Court has vacated the Ninth Circuit decisions on nonsubstantive grounds. In Fierro v. Gomez, 77 F.3d 301 (9th Cir. 1996), the Ninth Circuit affirmed the district court’s ruling that execution by lethal gas is cruel and unusual punishment. However, the Supreme Court vacated that opinion, in light of a 1996 statutory amendment to California’s execution law, allowing death row inmates a choice between execution by lethal gas and lethal injection, with lethal injection as the default procedure. Gomez v. Fierro, 519 U.S. 918 (1996). On remand, the Ninth Circuit determined that the petitioners lacked standing to challenge the constitutionality of lethal gas since they had not chosen execution by that method. Fierro v. Terhune, 147 F.3d 1158 (9th Cir. 1998).  

In LaGrand (Karl) v. Stewart, 173 F.3d 1144 (9th Cir. 1999), the Ninth Circuit held that petitioner did not waive his challenge to the constitutionality of execution by lethal gas by voluntarily choosing gas over the default lethal injection method of execution. The court also ruled execution by lethal gas unconstitutional and enjoined Arizona from performing any executions by lethal gas. However, the Supreme Court immediately lifted the Ninth Circuit’s stay. One week later, in a per curiam decision as to the codefendant’s petition, the Supreme Court ruled that petitioner Walter LaGrand had waived his right to challenge execution by lethal gas because he opted for it. Stewart v. LaGrand (Walter), 526 U.S. 115 (1999) (per curiam).

In the Ninth Circuit, Montana, Oregon, and Nevada provide for execution exclusively by lethal injection. California and Arizona provide for execution by lethal injection unless the prisoner chooses lethal gas. Washington imposes a capital sentence by lethal injection unless the inmate chooses hanging. Idaho provides for execution by lethal injection or by firing squad if lethal injection is impractical.

Pursuant to 28 C.F.R. §§ 26.1–26.5, the federal government’s method of execution is lethal injection at a federal institution. However, 18 USC 3596 provides that the method of implementing the death penalty for a federal conviction will follow that of the state in which it is imposed, and, if there is no state death penalty, then that of another state designated by the judge. Section 3597 of Title 18 provides for the use of state facilities to carry out a federally imposed death penalty.

Hill v. Crosby, 126 S. Ct. 1189 (2006) (mem.) (granting certiorari and a stay of execution, with the following questions presented: “1. Whether a complaint brought under 42 USC 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the chemicals utilized for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 USC 2254?; 2. Whether, under this Court's decision in Nelson [v. Campbell], a challenge to a particular protocol the State plans to use during the execution process constitutes a cognizable claim under 42 USC 1983?”).  

Nelson v. Campbell, 541 U.S. 637 (2004) (without reaching the question of how to categorize method-of-execution claims generally, holding that 42 USC 1983 is an appropriate vehicle for petitioner’s Eighth Amendment claim seeking a temporary stay and permanent injunctive relief and alleging that the use of a “cut-down” procedure requiring an incision into his arm or leg to access his severely compromised veins constituted cruel and unusual punishment).

Stewart v. LaGrand (Walter), 526 U.S. 115 (1999) (per curiam) (holding that petitioner waived right to challenge constitutionality of execution by lethal gas by opting for execution by lethal gas).

Gomez v. Fierro, 519 U.S. 918 (1996) (vacating Ninth Circuit opinion declaring lethal gas unconstitutional, remanding in light of Cal. Penal Code § 3604 providing lethal injection as execution method unless inmate chooses death by lethal gas).

Morales v. Hickman, 438 F.3d 926 (9th Cir. 2006) (per curiam) (holding that the district court did not abuse its discretion in modifying a lethal injection protocol to give State of California the option of allowing an anesthesiologist to monitor and verify that inmate remained unconscious throughout the execution procedure).

Beardslee v. Woodford, 395 F.3d 1064 (9th Cir.) (per curiam) (affirming the district court’s order denying prisoner’s motion for a preliminary injunction and denying a motion for a stay of execution in a § 1983 action alleging that prisoner’s execution pursuant to California’s lethal injection protocol would violate his Eighth Amendment right to be free from cruel and unusual punishment, the court held that given the undisputed evidence that death or unconsciousness is likely to occur prior to the administration of pancuronium bromide and the lack of a showing of any unique risk to him in the limited record, the district court did not abuse its discretion in applying the appropriate balancing tests in the context of the case and denying the preliminary injunction; as to the prisoner’s First Amendment claim that the administration of pancuronium bromide would prevent him from audibly expressing his pain, holding that prisoner failed to establish that he would be conscious when the final two drugs were administered; further holding that claim that prisoner’s rights under the First and Eighth Amendments would be violated was more properly considered as a “conditions of confinement” challenge, which is cognizable under § 1983, rather than as a challenge that would implicate the legality of his sentence and thus be appropriate for federal habeas review), cert. denied, 125 S. Ct. 982 (2005).

LaGrand (Karl) v. Stewart, 173 F.3d 1144 (9th Cir.) (holding petitioner did not waive his challenge to the constitutionality of execution by lethal gas by voluntarily choosing gas over the default lethal injection method of execution; holding execution by lethal gas unconstitutional), stay vacated, 525 U.S. 1173, cert. dismissed, 526 U.S. 1061 (1999).

Fierro v. Terhune, 147 F.3d 1158 (9th Cir. 1998) (holding, on remand, that petitioners lacked standing to assert unconstitutionality of lethal gas because amended state statute provided for execution by lethal gas only by choice, and petitioners had not chosen lethal gas as means of execution).

Poland v. Stewart, 117 F.3d 1094 (9th Cir. 1997) (holding Eighth Amendment claim Fierro v. Gomez, 77 F.3d 301 (9th Cir.) (holding § 1983 proceeding proper vehicle for challenging constitutionality of execution method; holding execution by lethal gas cruel and unusual punishment), vacated and remanded, 519 U.S. 918 (1996).

Thorburn v. California Dep’t of Corrections, 66 Cal. App. 4th 1284, 78 Cal. Rptr. 2d 584 (1998) (holding physician participation in executions is not unprofessional conduct within meaning of the California Business and Professional Code).

18 USC 3596 (2000) (providing federal death penalty carried out in manner prescribed by state in which sentence imposed).

18 USC 3597 (2000) (providing for use of state facilities for implementing federal death sentence).

28 C.F.R. §§ 26.1–26.5 (2002) (establishing procedures for carrying out federal death sentence at federal institution; providing lethal injection as execution method).

Ariz. Rev. Stat. Ann. § 13-704 (2001) (providing lethal injection, or, for those sentenced before November 23, 1992, choice of lethal injection or lethal gas).

Cal. Penal Code § 3604 (West 2000) (providing lethal injection, unless inmate chooses lethal gas).

Idaho Code § 19-2716 (2004) (providing lethal injection, or, if impractical, firing squad).

Mont. Code Ann. § 46-19-103(3) (2005) (providing lethal injection as execution method).

Kristina E. Beard, Comment, Five Under the Eighth: Methodology Review and the Cruel and Unusual Punishments Clause, 51 Miami L. Rev. 445 (1997) (analyzing each method of execution under standards used by Supreme Court in deciding constitutionality of punishments under the Eighth Amendment in reviewing challenges other than method of execution).

Julian Davis Mortenson, Earning the Right to be Retributive: Execution Methods, Culpability Theory, and the Cruel and Unusual Punishment Clause, 88 Iowa L.Rev. 1009(2003) (arguing that tort cause of action exists in cases of botched executions and analyzing Cruel and Unusual Punishment Clause of Constitution to methods of  execution).

Martin R. Gardner, Executions and Indignities–An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 39 Ohio St. L.J. 96 (1978) (analyzing constitutionality of various methods of execution, in light of Supreme Court opinions, meaning of “cruel and unusual,” and witness descriptions of each method).

Poyner v. Murray, 508 U.S. 931 (1993) (denying certiorari to Fourth Circuit decision upholding constitutionality of Virginia’s electric chair).

Glass v. Louisiana, 471 U.S. 1080 (1985) (denying certiorari to Louisiana Supreme Court decision upholding constitutionality of electrocution).

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) (holding repeated electrocutions due to initial failure not cruel and unusual punishment).

In re Kemmler, 136 U.S. 436 (1980) (holding electrocution not cruel and unusual punishment).

Deborah W. Denno, Is Electrocution Unconstitutional Method of Execution?, 35 Wm. & Mary L. Rev. 551 (1994) (analyzing in detail constitutionality of electrocution both in theory and practice).

Lonny J. Hoffman, The Madness of the Method: The Use of Electrocution and the Death Penalty, 70 Tex. L. Rev. 1039 (1992) (reviewing constitutionality of electrocution, arguing Kemmler and Francis were misapplied and mistakenly expanded, and should not be relied upon as authority for upholding electrocution).

Stewart v. LaGrand (Walter), 526 U.S. 115 (1999) (per curiam) (holding that petitioner waived right to challenge constitutionality of execution by lethal gas by opting for execution by lethal gas).

Gomez v. Fierro, 519 U.S. 918 (1996) (vacating Ninth Circuit opinion declaring lethal gas unconstitutional, remanding in light of amended state statute, providing for lethal injection as execution method unless inmate chooses death by lethal gas).

Gomez v. United States Dist. Ct. for the N. Dist. of Cal., 503 U.S. 653 (1992) (holding California inmate Robert Alton Harris’ claim that lethal gas constitutes cruel and unusual punishment is procedurally barred).

LaGrand (Karl) v. Stewart, 173 F.3d 1144 (9th Cir.) (holding execution by lethal gas unconstitutional), stay vacated, 525 U.S. 1173, cert. dismissed, 526 U.S. 1061 (1999).  

Fierro v. Gomez, 77 F.3d 301 (9th Cir. 1996) (holding lethal gas is cruel and unusual punishment), vacated and remanded, 519 U.S. 918 (1996) (for further consideration in light of Cal. Penal Code § 3604), on remand sub nom. Fierro v. Terhune 147 F.3d 1158 (9th Cir. 1998) (dismissing cause of action for lack of standing).

Fierro v. Gomez, 865 F. Supp. 1387 (N.D. Cal. 1994) (ruling that lethal gas is cruel and unusual punishment), aff’d, 77 F.3d 301 (9th Cir. 1996), vacated and remanded, 519 U.S. 918 (1996), on remand sub nom. Fierro v. Terhune, 147 F.3d 1158 (9th Cir. 1998) (dismissing cause of action for lack of standing).

See Generally:

Note, Constitutional Law–Eighth Amendment–Ninth Circuit Holds California’s Lethal Gas Method of Execution Unconstitutional.–Fierro v. Gomez, 110 Harv. L. Rev. 971 (1997) (summarizing Fierro).

Heckler v. Chaney, 470 U.S. 821 (1985) (upholding FDA decision not to exercise its enforcement power to ban unapproved drugs used in lethal injections; FDA decision not subject to judicial review).

Beardslee v. Woodford, 395 F.3d 1064 (9th Cir.) (per curiam) (holding that given the undisputed evidence that death or unconsciousness is likely to occur prior to the administration of pancuronium bromide and the lack of a showing of any unique risk to the prisoner in the limited record, the district court did not abuse its discretion in applying the appropriate balancing tests in the context of the case and denying the preliminary injunction; as to the prisoner’s First Amendment claim that the administration of pancuronium bromide would prevent him from audibly expressing his pain, holding that prisoner failed to establish that he would be conscious when the final two drugs were administered), cert. denied, 125 S. Ct. 982 (2005).

Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004) (affirming the district court’s order denying prisoner’s motion for preliminary injunction in his action under 42 USC 1983, seeking to prevent his execution in accordance with California’s lethal injection protocol, the court held that prisoner failed to show that he was subject to an unnecessary risk of unconstitutional pain or suffering such that his execution by lethal injection must be restrained; see also concurring opinion of Browning, J. noting that the court’s review of the denial of preliminary injunctive relief is limited and deferential, and that the court’s review of the district court’s merits decision--if it is appealed--would be more rigorous).

Poland v. Stewart, 117 F.3d 1094 (9th Cir. 1997) (rejecting claim that lethal injection is cruel and unusual method of execution), cert. denied, 523 U.S. 1082 (1998).

Lambright v. Lewis, 932 F. Supp. 1547 (D. Ariz. 1996) (agreeing with LaGrand that lethal injection–other Arizona method of execution–is not unconstitutional), aff’d in part and remanded en banc sub nom. Lambright v. Stewart, No. 191 F.3d 1181 (9th Cir. 1999).

LaGrand v. Lewis, 883 F. Supp. 451 (D. Ariz. 1995) (holding execution by lethal injection is not unconstitutional method of execution), aff’d sub nom. LaGrand (Karl) v. Stewart, 133 F.3d 1253, 1264–65 (9th Cir.), cert. denied, 525 U.S. 971 (1998).

See generally:

Bob Egelko, Wider Access to Executions Upheld, San Francisco Daily Journal, August 6, 1996 (reporting Ninth Circuit upholding of Northern District of California order allowing California execution witnesses to see entire lethal injection procedure, starting with insertion of needles into prisoner).

Langford v. Day, 110 F.3d 1380, 1393 (9th Cir. 1996) (refusing to overturn en banc Campbell decision and rejecting argument for reconsideration of constitutionality of hanging based on South Africa’s elimination of death penalty), cert. denied, 522 U.S. 881 (1997).

Campbell v. Wood, 18 F.3d 662 (9th Cir.) (holding hanging not cruel and unusual punishment), cert. denied, 511 U.S. 1119 (1994) (including Blackmun, J., dissent arguing hanging is cruel and unusual).

Rupe v. Wood, 863 F. Supp. 1315 (W.D. Wash. 1994) (finding, although hanging is not generally unconstitutional, where there is significant risk of decapitation in hanging of obese inmate, hanging violates Eighth Amendment), aff’d, Rupe v. Wood, 93 F.3d 1434 (9th Cir. 1996) (finding issue moot because of change in Washington capital statute), cert. denied, 519 U.S. 1142 (1997).

Gary E. Hood, Note, Campbell v. Wood: The Death Penalty in Washington State: “Hanging” on to a Method of Execution, 30 Gonz. L. Rev. 163 (1994-1995) (analyzing Campbell rationale).

Wilkerson v. Utah, 99 U.S. 130 (1878) (holding execution by shooting not cruel and unusual punishment; stating “cruel and unusual” includes that of “torture” and “unnecessary cruelty”).

Several circuits, including the Ninth, have held that a statute creating a choice between two methods of execution is constitutional. The Ninth Circuit has also held that a capital inmate has no “significantly protectable right” in the mode of execution or in the right to choose between methods under a state statute.

Poland v. Stewart, 117 F.3d 1094 (9th Cir. 1997) (rejecting claim that presenting prisoners with a choice of method of execution is unconstitutional), cert. denied, 523 U.S. 1082 (1998).

Bonin v. Calderon, 77 F.3d 1155 (9th Cir.) (holding defendant does not have state created liberty interest under California law to choose between lethal injection and gas chamber methods of execution), cert. denied, 516 U.S. 1143 (1996).

Hunt v. Nuth, 57 F.3d 1327 (4th Cir. 1995) (holding statute allowing choice between lethal injection or lethal gas not unconstitutional), cert. denied, 516 U.S. 1054 (1996). 

Fierro v. Grant, 53 F.3d 338 (9th Cir. 1995) (unpublished) (affirming district court’s denial of death row inmate’s motion to intervene in Fierro v. Gomez because condemned inmate has no “significantly protectable interest” in method of execution).

Campbell v. Blodgett, 978 F.2d 1502 (9th Cir.) (holding statute providing choice between death by hanging or lethal injection not cruel and unusual), reh’g granted, 978 F.2d 519 (9th Cir. 1992).