III. Plaintiffs' Motion for a Temporary Restraining Order
In a motion for a TRO, "a party must show either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in its favor." Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 F.2d 1374 (1985). While this court would evaluate a motion for a preliminary injunction by the first standard, the court finds it a appropriate to consider this motion for a TRO under the less stringent second standard.
B. Serious Questions Going to the Merits
1. Evolving Standards of Decency
The Eighth Amendment proscribes "punishments which are incompatible with 'the evolving standards of decency that mark the progress of a maturing society.'" Estelle v. Gamble, 429 U.S. 97, 102, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958)). In evaluating whether these standards of decency are met the court must consider whether: 1) the punishment is cruel or involves torture or a lingering death, see In re Kemmler, 136 U.S. 436, 447, 34 L. Ed. 519, 10 S. Ct. 930 (1890), and whether 2) it involves the unnecessary and wanton infliction of pain, Gregg v. Georgia, 428 U.S. 153, 173, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). In addition, "no 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, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972) (Rehnquist, J. dissenting)
Only one federal court has upheld the use of lethal gas to carry out the death penalty. Gray v. Lucas, 710 F.2d 1048 (5th Cir. 1983), cert. denied, 463 U.S. 1237, 77 L. Ed. 2d 1453, 104 S. Ct. 211 (1983). Although that court articulated the "evolving standards of decency" doctrine, it concluded by comparing lethal gas to "traditional modes of execution." Id. at 1061. The Gray court based its Eighth Amendment evaluation of the use of lethal gas on largely outdated methods of execution: "Traditional deaths by execution, such as hanging, have always involved the possibility of pain and terror for the convicted person. Although contemporary notions of civilized conduct may indeed cause some reassessment of what degree or length is acceptable, we are not persuaded [to find lethal gas to constitute cruel and unusual punishment]." Id. at 1061. Gray, which involved a Mississippi statute, was decided in 1983. Since that time Mississippi, as well as North Carolina, Wyoming and Oregon have abandoned lethal gas or provided an alternative. Of the states relied upon by Gray as having approved the use of lethal gas only California retains that method of execution.
2. Lethal Gas Cases in California
The two California state cases, cited by Gray, People v. Daugherty, 40 Cal. 2d 876, 256 P.2d 911 (1953), cert. denied, 346 U.S. 880, 98 L. Ed. 387, 98 L. Ed. 2d 387 (1953), and In Re Anderson, 69 Cal. 2d 613, 447 P.2d 117, 73 Cal. Rptr. 21 (1968), cert. denied, 406 U.S. 971, 32 L. Ed. 2d 671, 92 S. Ct. 2415 (1972), uphold the constitutionality of the use of lethal gas.
However, those cases lay out a framework in which that method of execution could be found to be unconstitutional under current standards. The holding in Daugherty was based on the assumption that lethal gas was the most humane method of execution: "We think it fair to assume that our Legislature, in enacting the law in question, sought to provide a method of inflicting the death penalty in the most humane manner known to modern science." Daugherty, 256 P.2d at 895.
While this court recognizes that the Eighth Amendment does not require states to adopt the most humane method of execution, the evidence submitted by plaintiffs suggests that lethal gas may be slow, painful, and torturous in violation of the Eighth Amendment. In fact, the eyewitness descriptions of executions by lethal gas provided in plaintiffs' memoranda are comparable to the descriptions of hanging in State v. Frampton, 95 Wash. 2d 469, 627 P.2d 922, 934-35 (Wash. 1981), a case in which the court found hanging to be an unconstitutional method of execution.
3. Evidence of Contemporary Standards of Decency
The constitutional status of a given punishment "should be informed by objective factors to the maximum possible extent.'" Enmund v. Florida, 458 U.S. 782, 788, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982). One key objective indicator is legislative pronouncements. "The clearest and most reliable evidence of contemporary values is the legislation enacted by the country's legislatures." Penry v. Lynaugh, 492 U.S. 302, 331, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989) (per O'Connor, J.). As Justice Scalia stated on behalf of the Court in Stanford v. Kentucky, 492 U.S. 361, 373, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989), "'First' among the 'objective indicia that reflect the public attitude toward a given sanction' are statutes passed by society's elected representatives." Constitutional infirmities are not avoided by a state's approval of the means used, if the national consensus, determined in the manner described in Stanford, is to the contrary. Id. at 381 (O'Connor, J., concurring). Plaintiffs have submitted substantial evidence of legislative movement away from the use of lethal gas. Of the thirty-eight United States jurisdictions that have the death penalty, only three states prescribe execution by lethal gas, in three other states prisoners may choose between gas and another method of execution. Plaintiffs' Memorandum in Support of Temporary Restraining Order, Ex. 62 ("Memo in support of TRO"). Of the three states which prescribe execution by gas, Maryland, Arizona and California, only Arizona has had an execution in the last twenty five years. Following that execution, on April 6, 1992, the Arizona legislature sought to eliminate the use of lethal gas. Memo in Support of TRO, Ex. 41. In addition, in the past fifteen years at least eight states have abandoned the use of lethal gas in favor of the use of lethal injection. See Memo in Support of TRO at 12-14. Defendants do not dispute these recitations. Indeed, defendants have offered no evidence in rebuttal. Therefore, the court finds that the actions of many state legislatures suggest that evolving standards of decency have lead to the abandonment of the use of lethal gas as a means of execution.
2. Balance of the Hardships
There is little question that the balance of the hardships weighs in plaintiffs' favor. Defendants argue that granting the TRO would necessitate staying the execution of one of the named plaintiffs, Robert Harris, and would require the state to obtain a new death warrant and to set a new date for his execution. However, the inconvenience to the state is inconsequential compared to the certainty that plaintiff Harris' impending execution would go forward without review of his constitutional claims. In addition, an evidentiary hearing on the merits of plaintiffs' claim must take place within 10 days, therefore any delay caused by the TRO grant is minimal.
For the reasons stated above, the court GRANTS plaintiffs' motion for a temporary restraining order.
IT IS SO ORDERED.
Dated: APR 18 1992
MARILYN HALL PATEL
United States District Judge