Campbell v. Wood, 938931

• Decision Date: 26 May 1994
• Docket Number: 938931
• Parties: Charles Rodman CAMPBELL, petitioner, v. Tana WOOD, Superintendent, Washington State Penitentiary, et al
• Court: U.S. Supreme Court

114 S.Ct. 2125

128 L.Ed.2d 682

Charles Rodman CAMPBELL, petitioner,

v Tana WOOD, Superintendent, Washington State Penitentiary, et al.

No. 93-8931.

Supreme Court of the United States

May 26, 1994

On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

The application for stay of execution of sentence of death scheduled for May 27, 1994, presented to Justice O'CONNOR and by her referred to the Court is denied. The petition for a writ of certiorari is denied.

Justice BLACKMUN, dissenting.

In 1853, hanging was the "nearly universal form of execution" in the United States, State v. Frampton, 95 Wash.2d 469, 492, 627 P.2d 922, 934 (1981), and 48 States once imposed death by this method. Today, only Washington and Montana still employ judicial hanging. Montana has not executed anyone by hanging in over 50 years, and no one who has contested the sentence has been lawfully hanged in the United States in more than three decades.¹ Petitioner Charles Rodman Campbell, who is scheduled to be executed "by hanging by the neck" in Washington this week,² contends that his hanging will constitute a cruel and unusual punishment. I agree, and accordingly, even if I believed that the death penalty could be applied constitutionally, see Callins v. Collins, 510 U.S. ----, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994) (BLACKMUN, J., dissenting), I would vote to grant the application for stay and the petition for certiorari in this case.³

This Court has accepted that the Eighth Amendment's prohibition against cruel and unusual punishments "draw[s] 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), and that the best evidence of these evolving standards "is the legislation enacted by the country's legislatures." Penry v. Lynaugh, 492 U.S. 302, 331, 109 S.Ct. 2934, 2953, 106 L.Ed.2d 256 (1989); see also Stanford v. Kentucky, 492 U.S. 361, 370, 109 S.Ct. 2969, 2975, 106 L.Ed.2d 306 (1989) (citations omitted) (" '[F]irst' among the 'objective indicia that reflect the public attitude toward a given sanction' are statutes passed by society's elected representatives"); Ford v. Wainwright, 477 U.S. 399, 408-410, 106 S.Ct. 2595, 2601-2602, 91 L.Ed.2d 335 (1986). The public condemnation of hanging is overwhelming. Not only have 46 of the 48 States that once regularly imposed hanging abandoned the practice, but many state legislatures rejected the practice because it was perceived as inhumane and barbaric, precisely the concern that lies at the core of the Eighth Amendment. See, e.g., Furman v. Georgia, 408 U.S. 238, 296-297, 92 S.Ct. 2726, 2756, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring) ("[S]ince the development of the supposedly more humane methods" of lethal gas and electrocution, "hanging and shooting have virtually ceased"); Malloy v. South Carolina, 237 U.S. 180, 185, 35 S.Ct. 507, 509, 59 L.Ed. 905 (1915) (noting that 11 states altered their practice based on "a well-grounded belief that electrocution is less painful and more humane than hanging"). But see Glass v. Louisiana, 471 U.S. 1080, 105 S.Ct. 2159, 85 L.Ed.2d 514 (1985) (Brennan, J., dissenting) (arguing that death by electrocution is cruel and unusual). Even as the death penalty's popularity has increased in recent years, toleration for hanging has steadily declined. Of the eight States that provided for judicial hanging by the time of the Furman decision, see 408 U.S., at 297, n. 50, 92 S.Ct., at 2756, n. 50 (Brennan, J., concurring), all but two have abolished it. Today, the only three jurisdictions in the English-speaking world that impose state-sponsored hangings are Washington, Montana, and South Africa.⁴ App. to Pet. for Cert. A-38.

Moreover, the States' rejection of hanging has been much more universal than that of practices this Court previously has found to be cruel and unusual. Compare Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (invalidating capital punishment for offenders under age 16 where almost two-thirds of state legislatures rejected the practice); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (striking down the death penalty for vicarious felony murders where only eight States still authorized the punishment); Coker v. Georgia, 433 U.S. 584, 595-596, 97 S.Ct. 2861, 2867-2868, 53 L.Ed.2d 982 (1977) (abolishing the death penalty for rape where only Georgia imposed death for rape of an adult and only three States imposed the penalty for any rape), with Stanford v. Kentucky, 492 U.S., at 371, 109 S.Ct., at 2976 (upholding the death penalty for 16-year-olds since "a majority of States that permit capital punishment authorize" the practice). If the Eighth Amendment represents anything other than a prohibition against punishments that have been entirely abolished, a punishment once universally practiced and then abandoned specifically due to its inhumanity must qualify as cruel and unusual.

In a 6-5 en banc opinion, the Court of Appeals for the Ninth Circuit disregarded this overwhelming evidence of state practice, holding that such evidence is relevant to consideration only of the proportionality of a death sentence. Where the method of execution is contested, the majority reasoned, the Eighth Amendment prohibits only "the unnecessary and wanton infliction of pain." App. to Pet. for Cert. A-20. Because hanging does not inflict "purposeful cruelty," the method is constitutional. Id., at A-25. The Ninth Circuit's analysis is surprising given that this Court never has held that pain is the exclusive consideration under the Eighth Amendment, nor distinguished between challenges to the proportionality and the method of capital punishment. To the contrary, we have suggested that "[a] penalty must also accord with the 'the dignity of man,' which is the 'basic concept underlying the Eighth Amendment,' " Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.), a suggestion supported by our recognition that painless, post mortem punishments such as public display, drawing and quartering, and mutilation also violate the Eighth Amendment. Wilkerson v. Utah, 99 U.S. 130, 135-136, 25 L.Ed. 345 (1879).

But the en banc panel's emphasis on pain also fails on its own terms. Under the most "ideal" of circumstances, hanging kills by breaking the spine. "When the victim is dropped from a sufficient height his vertebrae are dislocated and his spinal cord crushed; unconsciousness is immediate and death follows a short time later." App. to Pet. for Cert. A-49 (Reinhardt, J., dissenting), quoting Gardner, Executions and Indignities—An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 39 Ohio St.L.J. 96, 120 (1978). Hanging, however, is a crude and imprecise practice, which always includes a risk that the inmate will slowly strangulate or asphyxiate, if the rope is too elastic or too short, or will be decapitated,...