To answer the second question first, it is evident that the state has an interest in the orderly carrying out of an execution and suffers an inconvenience in its postponement. At the same time the injury is more psychological and intangible than substantial. The state will get its man in the end. In contrast, if persons are put to death in a manner that is determined to be cruel, they suffer injury that can never be undone, and the Constitution suffers an injury that can never be repaired. The balance of hardships clearly tips in favor of the restraining order.
The serious questions presented to Judge Patel were three:
1. Do Younger v. Harris, 401 U.S. 37, 45, 27 L. Ed. 2d 669, 91 S. Ct. 746, and its progeny require the federal court to abstain from intervening to prevent the execution of a state judgment?
The answer to this question is disputed by the parties. Although Younger itself dealt only with a pending criminal prosecution, it is argued that the doctrine has been extended so that a federal court should not prevent the carrying out of a state judgment. Pennzoil v. Texaco, 481 U.S. 1, 17, 95 L. Ed. 2d 1, 107 S. Ct. 1519 (1987). On the other hand, it is argued that Younger abstention has no place in this kind of case. Younger itself applies where the constitutional defense could be raised during the ongoing state proceeding. Almodovar v. Reiner, 832 F.2d 1138, 1141-42 (9th Cir. 1987). Pennzoil explicitly applies to a case where the state judicial process is still going on -- in that case where an appeal to the state appellate court was pending. Pennzoil, 481 U.S. 1 at 5, 95 L. Ed. 2d 1, 107 S. Ct. 1519, n.14 ("So long as these challenges relate to pending state proceedings, proper respect for the ability of the state courts to resolve federal questions presented in state-court litigation mandates that the federal court stay its hand." Id. at 14).
Taken at its word, the panel's reading of Younger, interpreting judicial proceedings to last through execution, precludes all habeas corpus petitions by death penalty inmates. From the beginning of the prosecution until the moment of death there is no time that Younger would permit a habeas petition.
2. Should the section 1983 action, so far as it affected Robert Harris, be construed as an impermissible evasion of the ordinary requirements for habeas corpus?
In a sense this question is a recasting of the first question but focuses directly on the impact of a TRO on Harris' execution. The State urged that, looking at the realities of the matter, this case was brought only to prevent Harris' execution. In opposition, the plaintiffs asserted that they represented a large group of persons who would be subjected to death by lethal gas and that Harris was one of this number. It would surely be anomalous for the class to have a good cause of action and to have one member of it denied the benefit of the action because relief would come too late in the absence of the restraining order. It was a serious question whether such an anomaly should be permitted.
The general rule is clear that a section 1983 claim cannot be blocked by imposing the exhaustion of state remedy requirement that would be appropriate to habeas relief. Ellis v. Dyson, 421 U.S. 426, 432-33, 44 L. Ed. 2d 274, 95 S. Ct. 1691 (1975); Young v. Kenny, 907 F.2d 874, 875 (9th Cir. 1990). The panel's opinion seems not to acknowledge this rule. Consequently, the panel seems unaware of the serious question that the district court would have to decide if it were to turn this section 1983 action into a habeas petition for Harris and bar it for lack of exhaustion. Wilwording v. Swenson, 404 U.S. 249, 251, 30 L. Ed. 2d 418, 92 S. Ct. 407 (1971), Preiser v. Rodriguez, 411 U.S. 475, 482, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973).
Finally, in suggesting that Harris's Eighth Amendment claim regarding the mode of his execution is only cognizable under habeas corpus, the panel creates a circuit split. No other circuit has so held. Both the Fifth and Eleventh Circuit have considered challenges to the manner of execution as properly raised under section 1983. Sullivan v. Dugger, 721 F.2d 719 (11th Cir. 1983), Byrne v. Roemer, 847 F.2d 1130 (5th Cir. 1988).
3. Is it cruel and unusual punishment to inflict death by lethal gas? In determining whether this is a serious question the court was governed by the following precedents:
(a) As to what constitutes cruel and unusual punishment, it was long ago decided that the standard is not set by what the prevailing norm was in 1789, but rather by an evolving adaptation to new evils. Weems v. United States, 217 U.S. 349, 373, 54 L. Ed. 793, 30 S. Ct. 544 (1909). The standard Weems approved has been repeatedly invoked to permit the application of "evolving standards of decency," e.g., Stanford v. Kentucky, 452 U.S. 264, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1989), quoting TROP v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958)(plurality opinion).
In determining what is the current standard of human decency in these matters, the indicia should be objective, and the best index is the practice of the state legislatures. Stanford, 452 U.S. 370 at 370-371 .
Only three states now authorize death only by means of lethal gas. One of these states, Maryland, has not had an execution since 1961. The second state, Arizona, had such an execution this month, and it was reported to the district court that, in reaction to it, the state legislature was taking steps to change the method of execution. The third state is California, whose statute is in question in this case. Eight states in the last 15 years have abolished execution by lethal gas. A serious question exists as to whether there is not sufficient consensus to establish that its use is cruel and unusual punishment.
(b) The constitutional standard is that any unnecessary suffering caused in the infliction of the death penalty is cruel and unusual. Louisiana ex rel. Francis Resweber, 329 U.S. 459, 463, 91 L. Ed. 422, 67 S. Ct. 374 (1947). The district court was presented with substantial medical evidence in the form of declarations that such unnecessary suffering was inflicted. The State did not choose to respond to this evidence. Clearly a serious question was presented as to whether unnecessary suffering was inflicted.
I respectfully dissent.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
DAVID FIERRO, et al.,
JAMES GOMEZ, et al.,
NO. C-92-1482 MHP
The order of the Ninth Circuit Court of Appeals having issued an order directing this court to vacate the temporary restraining order issued April 18, 1992,
IT IS THEREFORE ORDERED that the temporary restraining order issued by this court on April 18, 1991, be and is hereby vacated.
IT IS SO ORDERED.
DATED: APR 20 1992
MARILYN HALL PATEL
United States District Judge
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES GOMEZ and DANIEL VASQUEZ,
THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
DAVID FIERRO, ROBERT HARRIS, and
ALEJANDRO CILBERT RUIZ,
Real Parties In Interest
[Related to N.D.Cal.
ORDER - April 22, 1992, Filed
Before: ALARCON and BRUNETTI, Circuit Judges.
The issues raised in this petition for a writ of mandamus concerning the validity of the temporary restraining order have become moot by subsequent events. The temporary restraining order will expire ex propria vigore on April 28, 1992. No executions are scheduled in the State of California prior to that date.
Accordingly, the order issuing the writ of mandamus is RECALLED and VACATED. The opinion filed on April 20, 1992 is WITHDRAWN. The petition for a writ of mandamus is DISMISSED as moot.
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