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Ban on Gas Chamber Executions Is Upheld

Court: In rejecting state's appeal, U.S. judges affirm 1993 ruling that method is 'inhumane.'

February 22, 1996|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

In a historic decision, a federal appeals court in San Francisco upheld a ruling Wednesday that executing people in San Quentin's gas chamber is cruel and unusual punishment in violation of the Constitution's 8th Amendment. The court barred further executions by this method.

An ideologically diverse panel of the U.S. 9th Circuit Court of Appeals unanimously upheld an October 1993 decision by U.S. District Judge Marilyn H. Patel in San Francisco that the gas chamber "is inhumane and has no place in civilized society."

Unless the decision is overturned by a larger panel of 9th Circuit judges or the U.S. Supreme Court, the ruling means that executions in California can only be performed by lethal injection.

The decision was issued as the state prepared for its first execution by lethal injection--that of "Freeway Killer" William Bonin scheduled for 12:01 a.m. Friday. There are 438 people facing death sentences in the state.

Patel's ruling, the first by any U.S. court to declare a method of execution unconstitutional, was properly based on evidence by doctors, other witnesses and a review of execution records, according to the 3-0 decision. She rejected the state's contentions that cyanide gas causes virtually instant unconsciousness, saying that the gas is likely to cause excruciating pain for between 15 seconds and several minutes.

Patel said the primary cause of pain is suffocation, experienced as an intense "air hunger" similar to strangulation or hanging.

"The District Court's findings of extreme pain, the length of time this extreme pain lasts, and the substantial risk that inmates will suffer this extreme pain for several minutes require the conclusion that execution by lethal gas is cruel and unusual," wrote Appellate Judge Harry Pregerson of Woodland Hills, a Jimmy Carter appointee. Judges Melvin Brunetti of Reno, a Ronald Reagan appointee, and Thomas G. Nelson of Boise, Idaho, a George Bush appointee, joined in the decision.

Pregerson and Brunetti were on opposite sides of the fence in the April 1992 clash over the pending execution of Robert Alton Harris. Brunetti joined another 9th Circuit judge in rejecting a last-ditch appeal on Harris' behalf. Pregerson issued the last stay granted to Harris, while he was strapped in the gas chamber, before the U.S. Supreme Court voided the stay and ordered that the execution proceed.

Michael Laurence, the lead lawyer representing a group of inmates challenging the use of the gas chamber, lauded the decision:

"The ACLU and I are certainly pleased that the state of California will no longer be able to torture people to death. All the medical evidence, including that from the doctors at San Quentin, proved what we had been saying before Robert Harris' execution--that lethal gas is a barbaric form of execution."

The airtight, octagonal gas chamber was built in the 1930s and was thought at the time to be a humane alternative to hanging, which was then the favored method of execution. The last execution in the chamber was that of David Mason in August 1993, the 196th since the method was first used in the state in 1938.

Patel issued her 1993 ruling after an eight-day trial at which Laurence brought in expert witnesses who testified that condemned inmates suffered excruciating pain in the chamber.

Patel's decision stressed that 10 states, including California, used gas as the sole method of execution in 1970, but that none does so now.

Gov. Pete Wilson decried the decision as "shortsighted and misguided. California should not be prohibited from using the gas chamber to perform executions to society's most brutal and heinous killers." Wilson said he would ask the state attorney general's office to seek review from the U.S. Supreme Court.

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