Rupe v. Wood, C91-1635Z.

• Decision Date: 19 September 1994
• Docket Number: No. C91-1635Z.,C91-1635Z.
• Citation: 863 F. Supp. 1307
• Parties: Mitchell Edward RUPE, Petitioner, v. Tana WOOD, Superintendent of Washington State Penitentiary, and Kenneth O. Eikenberry, The Attorney General of the State of Washington.
• Court: U.S. District Court — Western District of Washington

863 F. Supp. 1307

Mitchell Edward RUPE, Petitioner, v. Tana WOOD,¹ Superintendent of Washington State Penitentiary, and Kenneth O. Eikenberry, The Attorney General of the State of Washington.

No. C91-1635Z.

United States District Court, W.D. Washington, Northern Division, at Seattle.

September 19, 1994.

David Allen, Richard A. Hansen, Todd Maybrown, Allen & Hansen, Seattle, WA, Kathryn Lund Ross, Jones, Ross, Besman & Connolly, P.S., Lynnwood, WA, for petitioner.

Mitchell Edward Rupe, pro se.

John Scott Blonien, John M. Jones, Paul Douglas Weisser, John Joseph Samson, Atty. Gen. Office, Corrections Div., Olympia, WA, Daniel G. Steele, U.S. Dept. of Justice, Environmental and Natural Resources Div., Washington, DC, for respondents.

FINDINGS OF FACT AND CONCLUSIONS OF LAW RE HANGING

ZILLY, District Judge.

This matter comes before the Court in connection with Mitchell Edward Rupe's petition for habeas corpus pursuant to 28 U.S.C § 2254, alleging that Petitioner's hanging would constitute cruel and unusual punishment because of his peculiar circumstances (Claim S.5.23). Petitioner contends that because of his excessive weight, he is likely to be decapitated if judicially executed in accordance with the State's protocol for hanging. (Pretrial Order, docket no. 228 at page 2). The Respondent has moved for summary judgment, docket nos. 112 and 168, relating to this claim. The Court held a hearing commencing on July 11, 1994, to hear testimony on this and other remaining issues. The Court has considered the testimony presented at the hearing and the briefs and other pleadings filed by the parties and now enters its Findings of Fact and Conclusions of Law relating to Claim S.5.23.

FINDINGS OF FACT

1. Petitioner Mitchell Rupe has been sentenced to death under Washington State law.

2. Pursuant to RCW 10.95.180, the punishment of death in Washington shall be inflicted by hanging by the neck or, at the election of the defendant, by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death. P.T.O. ¶ 3.

3. As of September 2, 1993, Mitchell Rupe weighed 409¼ pounds and measured 6' ¼" in height. P.T.O. ¶ 2. Petitioner has struggled with weight problems throughout most of his life. After 8½ years of military service, Petitioner was honorably discharged in December, 1980 because he could not lose enough weight to meet new army regulations. Petitioner's obesity presents an unusual and exceptional circumstance which is likely to dramatically affect the execution process.

4. In Washington, execution by judicial hanging is carried out at the Washington State Penitentiary in Walla Walla, and is generally conducted pursuant to the Washington Field Instruction 410.500 ("Washington Field Instruction"). P.T.O. ¶ 4; Exhibit 15. The Washington Field Instruction requires use of manila hemp rope of a diameter between ¾ inch and 1¼ inches. The rope is soaked and then stretched. The knot is treated with wax, soap, and clear oils to ensure a smooth sliding action. P.T.O. ¶ 5.

5. The Washington Field Instruction uses a "long drop" method of hanging, in which the condemned person is dropped a particular distance based on his or her weight. The Washington Field Instruction contains altering drop lengths for persons ranging from 120 pounds to 220 pounds. Under the Washington Field Instruction, persons weighing more than 220 pounds will be dropped a distance of five (5) feet unless the Superintendent of the Washington State Penitentiary exercises the authority to deviate from the Field Instruction. P.T.O. ¶ 7.

6. Tana Wood is the Superintendent of the Washington State Penitentiary and the person who is now responsible for the preparation and carrying out of executions in the State of Washington. On December 7, 1993, Superintendent Wood testified during her deposition that Mitchell Rupe would be dropped a distance of five feet, as is set forth in the Washington Field Instruction, if judicially hanged at the weight of approximately 409 pounds. Superintendent Wood also testified, however, that she might consult with experts and the drop distance might be changed based on such consultation. P.T.O. ¶ 8.

7. At a telephone conference with counsel on May 9, 1994, the Court ordered the Respondent to determine by June 10, 1994, the drop length to be used for Mr. Rupe's hanging. Minutes, docket no. 203. On June 9, 1994, Superintendent Wood determined that Mr. Rupe would be dropped a distance of 3 feet 6 inches if judicially hanged at the weight of approximately 409 pounds, using a rope with a 7/8 inch diameter. Wood testified at the hearing that this decision was based upon advice given to her by Dr. Bahram Ravani, an engineering expert consultant hired by the State of Washington, as well as her observations of the hanging executions of Westley Allen Dodd ("Dodd") and Charles Rodman Campbell ("Campbell") which have recently been carried out at the Washington State Penitentiary. Wood received no input from medical experts in connection with this decision.

8. Wood testified that she made the decision to reduce the drop length to 3 feet 6 inches and to fix the rope size at 7/8 inch diameter in order to reduce or eliminate the possibility of decapitation.

9. The Washington Field Instruction relating to the drop lengths for persons of different weights is derived from a British study of hanging and the standard United States military drop chart for hanging. Before adopting the Washington Field Instruction, the State of Washington possessed very little information regarding the Army regulations. The source of the Army manual drop chart is unknown. The Army has never conducted a hanging execution pursuant to its regulations. The potential energy in foot-pounds which will result when a person is hanged can be calculated by multiplying the weight of the condemned person by the distance the person will be dropped. For example, a weight of 220 pounds and a drop distance of five feet would result in a potential energy total of 1100 foot-pounds. The British historically sought to utilize an energy level of 1260 foot-pounds during each judicial hanging. The Washington protocol calls for proposed energy levels slightly below the 1260 foot-pound level recommended by the British. Under the Washington protocol for hanging a 220 pound person (the highest weight listed in the protocol) at a drop distance of five feet, the proposed energy level would be 1100 foot-pounds.

10. The goal of judicial hanging is to provide a quick and painless death without causing decapitation. The Washington method, like other "long drop" methods of judicial hanging, attempts to achieve this result by dropping the condemned person a sufficient distance to cause a fracture dislocation of the spinal column and a stretch injury of the spinal cord and lower brain stem, but not so far as to cause a decapitation. To avoid a decapitation, the forces applied must not be so great as to destroy the tissue surrounding the spinal column, which would result in a separation of the head from the body.

11. The potential energy level which would result from hanging Petitioner at a weight of 409¼ pounds using a drop length of 3 feet 6 inches would be 1432 foot-pounds. This is approximately a 30% increase in potential energy in foot-pounds from the level indicated for the highest weight of 220 pounds and drop distance of 5 feet in the Washington Field Instruction.

12. Charles Campbell was judicially hanged by the State of Washington on May 27, 1994. Prior to his death, Campbell was a muscular person who exercised frequently and his neck muscles were well developed and strong. He was in excellent physical shape. At the time of his execution, Campbell weighed 232 pounds.² The State used a 7/8 inch-diameter rope and a drop length of five (5) feet. This resulted in an expected energy level of approximately 1160 foot-pounds. Campbell's hanging resulted in a fracture separation of his cervical vertebrae C2 on C3, and a complete transection of the upper cervical spinal cord. Exhibit A-8. Campbell became unconscious immediately upon reaching the end of the rope, and death occurred very rapidly thereafter. Dr. Donald Reay, the Chief Medical Examiner for the King County, Washington, Medical Examiner's Office, performed the autopsy on Campbell and testified that there was no evidence of decapitation nor did he believe that decapitation was imminent or threatened. There was no transection of skin or musculature. The extent of the injuries to Campbell's musculature could not be fully determined because of significant hemorrhage of the neck muscles. The carotid arteries were intact except for some minimal tears. However, Campbell suffered deep abrasions to the skin about the neck. Campbell's body hung in space for about five (5) minutes after death.

13. Dr. Reay testified and the Court finds that in the event Petitioner is dropped 3 feet 6 inches and the execution protocol contained in the Washington Field Instruction, Exhibit 15, is followed, unconsciousness will definitely occur as a result of occlusion of the carotid arteries in 6 to 10 seconds and that spinal shock will also occur which would virtually assure very rapid, if not immediate, unconsciousness. Dr. Reay did not give any opinion as to the likelihood of decapitation if these procedures are used.

14. The State of Washington contends that there is no risk of decapitation if Petitioner is hanged using a 7/8 inch-diameter rope and a 3 foot 6 inch drop length. The State relies upon tests conducted at the Washington execution chamber at Walla Walla, Washington, by their expert consultant, Bahram Ravani, Ph.D. Ravani holds formal degrees in mechanical engineering and has been involved in engineering aspects of biomechanics since 1979. Ravani has been associated with the Traffic Safety Research Corporation in Sunnyvale, California since 1979 working as a specialist in personal injury mechanics and accident...