II. The Merits
A. General Concepts
The eighth amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, Robinson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1962), prohibits "cruel and unusual punishments." U.S. Const. amend. VIII. The Amendment "embodies 'broad and idealistic concepts of dignity, civilized standards, humanity and decency'" against which forms of punishment must be measured. Estelle v. Gamble, 429 U.S. 97, 102, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)). It "expresses the revulsion of civilized man against barbarous acts -- the 'cry of horror' against man's inhumanity to his fellow man." Robinson v. California, 370 U.S. 660, 676, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1962) (Douglas, J., concurring).
The eighth amendment's restrictions on the ability of a state to impose punishment "aim . . . to protect the condemned from fear and pain . . . or to protect the dignity of society itself from the barbarity of exacting mindless vengeance." Ford v. Wainwright, 477 U.S. 399, 410, 91 L. Ed. 2d 335, 106 S. Ct. 2595 (1986) (plurality opinion). Fundamentally, the amendment stands to safeguard "nothing less than the dignity of man." Trop v. Dulles, 356 U.S. 86, 100, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958).
The amendment has traditionally been interpreted to proscribe torturous punishments, such as disembowelment, drawing and quartering, public dissection, and burning alive. Wilkerson v. Utah, 99 U.S. 130, 136, 25 L. Ed. 345 (1878). However, the amendment is not tethered to modes of punishment that were thought to be cruel and unusual at the time the Bill of Rights was adopted. See, e.g., Weems v. United States, 217 U.S. 349, 373, 54 L. Ed. 793, 30 S. Ct. 544 (1910) ("a principle, to be vital, must be capable of wider application than the mischief which gave it birth"). Instead, the reach of the amendment has long been interpreted in a "flexible and dynamic manner." Gregg v. Georgia, 428 U.S. 153, 171, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976) (joint opinion of Stewart, Powell & Stevens, JJ); see also Trop, 356 U.S. at 100-01 (scope of the amendment is "not static"). The eighth amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop, 356 U.S. at 101. As the concepts of dignity and civility evolve, so too do the limits of what is considered cruel and unusual.
B. Campbell v. Wood
The Supreme Court has rarely addressed the question of whether a specific mode of execution violates the eighth amendment. See Campbell, 18 F.3d at 681 (citing cases).
The Ninth Circuit, however, recently addressed this issue at some length in Campbell, a challenge to the State of Washington's method of execution by hanging. It is difficult at times to decipher the Campbell opinion. This court nonetheless must attempt to do so, since the issue in the instant case is directly analogous to the relevant issue in Campbell. The court will therefore review the Campbell opinion in some detail.
The Campbell court began by noting that recent eighth amendment decisions have focused initially on whether the challenged punishment was considered unacceptable at the time of the adoption of the Bill of Rights. Campbell, 18 F.3d at 681. An affirmative answer would end the eighth amendment inquiry. See Ford v. Wainwright, 477 U.S. 399, 405-06, 91 L. Ed. 2d 335, 106 S. Ct. 2595 (1986). Because it was undisputed that hanging was considered a lawful method of execution at the time of the Bill of Rights, the Campbell court moved quickly to the second, "more difficult" question of how to determine whether a punishment that may have been acceptable to the Framers of the Constitution nonetheless now violates society's civilized standards. Campbell, 18 F.3d at 682.
Addressing this second question, the court explained that its mission was to "look to objective factors to the maximum extent possible." Id. (citing Stanford v. Kentucky, 492 U.S. 361, 369, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989)). One of the objective factors to be considered is legislation passed by elected representatives. Id. Although the Campbell court specifically noted this factor, it was not swayed by the evidence before it that there was a trend "among several states" to move from execution by hanging to execution by lethal injection. Id.
Campbell had apparently relied on such cases as Coker v. Georgia, 433 U.S. 584, 53 L. Ed. 2d 982, 97 S. Ct. 2861 (1977), and Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982), for the proposition that "when the number of states exacting a given punishment dwindles, the punishment drops beneath the constitutional floor." Campbell, 18 F.3d at 682. In Coker, the Supreme Court held that the death penalty was a disproportionate punishment for the crime of rape, relying heavily on the fact that few states authorized capital punishment for rape. Coker, 433 U.S. at 593-96. Similarly, in Enmund, the Court found unconstitutional the sentence of death for a defendant who aids and abets a felony during which a murder is committed by co-felons. Enmund, 458 U.S. at 801. Again, the Court focused on the fact that few states allowed for such a sentence. Id. at 792.
The Campbell court held that there is a "critical" distinction between cases such as Enmund and Coker, which challenge the proportionality of a given sentence, and cases such as Campbell's, which contest a particular method of execution. Campbell, 18 F.3d at 682. The court held that "methodology" cases, such as the one before it, must "focus more heavily on objective evidence of the pain involved in the challenged method." Id. The court then rejected Campbell's evidence of legislative trends as unhelpful and turned to an analysis of the pain inflicted by Washington's method of execution.
In discussing the pain suffered by an inmate executed by hanging, the Campbell court repeatedly focused on how long the inmate remained conscious during the execution, ultimately finding that Washington's method of hanging "results in rapid unconsciousness and death." Id. at 684. The one execution carried out according to the challenged protocol, the execution of Westley Allan Dodd, supported this finding. The attending physician noted that:
when Mr. Dodd's body dropped through the trap door there simply was no significant activity, there was no twisting, turning, no swinging. I carefully observed his chest and abdomen and I believe that there was one minimal effort at inspiration, breathing in, and following that, within several seconds, there may have been a small second inspiratory action.