The opinion of the court was delivered by: MARILYN HALL PATEL
II. Statutory Authorization For Executions In California
III. Procedures For Execution By Lethal Gas In California
VI. Effects Of Hydrocyanic Gas On The Human Body -- Overview of the Theories
B. Lethal Doses Of Inhaled Cyanide
C. San Quentin Observations
1. Execution Of Robert Harris
2. Execution of David Mason
VIII. Additional Findings
IX. Legislative Trends In The United States Regarding Execution Methods
Plaintiffs are inmates at San Quentin State Prison in San Quentin, California who have been sentenced to death under the laws of the State of California. They brought this action on April 17, 1992, on behalf of themselves and all others similarly situated, challenging the constitutionality of California's method of execution by lethal gas.
The court has jurisdiction under 28 U.S.C. § 1343. Venue is proper under 28 U.S.C. § 1391(b) since defendants reside in the State of California and a substantial part of the conduct giving rise to this action occurred and will occur in the Northern District of California.
Trial was held for eight days. Plaintiffs presented their case through eight witnesses: 1) the Reverend Martin Leon Harris, a witness to the execution of Robert Alton Harris, one of the named plaintiffs and Reverend Harris' cousin; 2) Dr. Kent Russell Olson, an expert in medical toxicology, emergency medicine, and the treatment of poisoning, including cyanide poisoning; 3) Mr. Donald Cabana, former warden of a state prison in Mississippi, who presided over two executions by lethal gas; 4) Warden Daniel Vasquez, Warden of San Quentin State Prison at the time of trial, who presided over two executions by lethal gas at San Quentin, including the execution of Robert Alton Harris, one of the named plaintiffs in this action; 5) Professor Franklin E. Zimring of the University of California at Berkeley Law School at Boalt Hall, an expert in criminal justice policy; 6) Dr. John Friedberg, an expert in neurology; and 7) Dr. Richard Traystman, an expert in the areas of hypoxia and its effects on the heart and the brain. The testimony of Dr. Robert Kirschner, former pathologist with the Cook County Medical Examiner's Office in Chicago, Illinois, was presented through videotape, by stipulation of the parties.
Defendants presented their case through the testimony of two witnesses: 1) Dr. Alan H. Hall, medical toxicologist and an expert on cyanide and emergency medicine; and 2) Dr. Steven I. Baskin, expert in pharmacology and toxicology.
Following the trial, counsel submitted post-hearing briefs, and oral argument was heard. Counsel also filed supplementary briefs addressing the impact on this action of the recent Ninth Circuit decision in Campbell v. Wood, 18 F.3d 662 (9th Cir.) (en banc), reh'g and reh'g en banc denied, 20 F.3d 1050 (1994).
Having considered the testimony and evidence presented at trial, the oral arguments and briefs of counsel, and for the reasons set forth below, the court now enters the following Findings of Fact and Conclusions of Law in accordance with its obligations under the Federal Rules of Civil Procedure. See Fed. R. Civ. Proc. 52(c) (A judgment under Rule 52(c) "shall be supported by findings of fact and conclusions of law as required by subdivision (a) of this rule.").
Defendant James Gomez is Director of the California Department of Corrections. Defendant Arthur Calderon is Warden of San Quentin State Prison. He is the successor in that position to Daniel Vasquez, who was originally a defendant in this action.
Defendants are employees of the State of California and at all times relevant to this action were acting as employees within the scope of their employment with the State of California.
II. Statutory Authorization For Executions In California
California has provided for execution by means of lethal gas since 1937; before that time, executions in the state were carried out by hanging. See People v. Righthouse, 10 Cal. 2d 86, 72 P.2d 867 (1937); Ex. 103 (California legislative materials). Between 1937 and 1967, California carried out numerous executions in the gas chamber. See Ex. 102 at 5, 11 (National Prisoner Statistics Bulletin) (reporting 292 executions between 1930 and 1970).
In 1972 in Furman v. Georgia, the Supreme Court set aside the death penalty, as it was then administered, on eighth amendment grounds. Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972). Subsequently, the Supreme Court reinstated the death penalty, holding that revised statutes did not violate the eighth amendment. Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976).
Since the death penalty was reinstated in 1976, California has executed two inmates, Robert Alton Harris and David Mason. The State of California, through its agents Gomez and then-Warden Vasquez, executed plaintiff Harris on April 21, 1992, by administration of lethal gas. The sentence was carried out pursuant to California Penal Code section 3604, which at the time of that execution provided:
§ 3604. Method. The punishment of death shall be inflicted by administration of a lethal gas.
Cal. Penal Code § 3604 (1982).
California Penal Code section 3604 was amended in 1992 by the Legislature of the State of California. It currently provides:
§ 3604. Method of execution; election
(a) The punishment of death shall be inflicted by the administration of a lethal gas or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, by standards established under the direction of the Department of Corrections.
(b) Persons sentenced to death prior to or after the operative date of this subdivision shall have the opportunity to elect to have the punishment imposed by lethal gas or lethal injection. This choice shall be made in writing and shall be submitted to the warden pursuant to regulations established by the Department of Corrections. If a person under sentence of death does not choose either lethal gas or lethal injection within 10 days after the warden's service upon the inmate of an execution warrant issued following the operative date of this subdivision, the penalty of death shall be imposed by lethal gas.
(c) Where the person sentenced to death is not executed on the date set for execution and a new execution date is subsequently set, the person again shall have the opportunity to elect to have punishment imposed by lethal gas or lethal injection, according to the procedures set forth in subdivision (b).
Cal. Penal Code § 3604 (1994).
Between January 1, 1993 and October 14, 1993, twenty-four condemned inmates were served with execution warrants allowing them to elect lethal gas or lethal injection. Sixteen inmates refused to make a choice; seven selected lethal injection; and one selected lethal gas. See Ex. A-1 (Decl. of Denise Dull and attached choice forms).
David Mason, a condemned inmate at San Quentin, was served with an execution warrant but was one of the sixteen who refused to choose a method of execution. He was executed on August 24, 1993 by means of lethal gas. See Ex. 54A (Mason Execution Record).
Named plaintiff David Fierro was served with an execution warrant on February 9, 1993; he refused to select a method of execution. See Ex. A-1 (Fierro choice form). The record does not reflect that named plaintiff Ruiz has ever been served with an execution warrant.
Because one inmate has already been executed by lethal gas after refusing to choose a method of execution, and because other inmates, including plaintiff Fierro, have elected not to choose a method of execution or may in fact select lethal gas, the court finds that it is likely that inmates will be executed by the administration of lethal gas pursuant to California Penal Code § 3604(b), absent a ruling from this court.
III. Procedures For Execution By Lethal Gas In California
Executions by means of lethal gas in California are carried out in the gas chamber at San Quentin State Prison. Testimony of Warden Daniel Vasquez, 2 RT 59-60.
The lethal gas used in the gas chamber at San Quentin is hydrogen cyanide, or hydrocyanic, gas. See Ex. 93A (redacted protocol); 2 RT 184, 121 (Vasquez); Testimony of Steven Baskin, 6 RT 61.
The procedures for such executions are detailed in San Quentin Institution Procedure No. 769 ("Lethal Gas Chamber, San Quentin State Prison"). See Ex. 52A (redacted protocol); Ex. 93A (redacted protocol); 2 RT 75 (Vasquez). Warden Vasquez testified that these procedures "are an outline" of the process and that there were slight deviations from the protocol in both of the recent California executions, that of Robert Harris and that of David Mason. 2 RT 143-44, 149-51 (Vasquez). The execution procedures were developed in the early 1980s by Warden Vasquez and his staff. In developing the procedures, Vasquez drew on the procedures that had been used for lethal gas executions at San Quentin from 1937 to 1967. 2 RT 85-86 (Vasquez). Neither Warden Vasquez nor his staff consulted scientific experts or medical personnel in formulating the execution protocol, nor did they examine records from previous California executions. 2 RT 85, 87, 89 (Vasquez).
The gas chamber at San Quentin is a modified octagonal structure, approximately seven and one-half feet in diameter. See Ex. 41 at 3 (Decl. of Russell Stetler). The door to the chamber takes up one side; the other seven sides contain windows. Id.; Ex. 51 (floor plan of gas chamber).
The chamber is equipped with two chairs, referred to as Chair A and Chair B. See Ex. 51 (floor plan). During the execution of a single inmate, Chair B is used. 2 RT 71 (Vasquez). Chair B is to the left of Chair A when looking into the chamber from the door. See Ex. 51 (floor plan). Both Robert Harris and David Mason were executed in Chair B. 2 RT 95, 124 (Vasquez). There are straps on the back of each chair, which cross the inmate's chest and upper abdomen. Id. at 72. The chair also has two straps for each leg and three straps for each arm. See id. at 71-72; see also Ex. 89 (drawing of chair).
A Witness Observation Area surrounds the chamber on approximately five of the eight sides. Ex. 51 (floor plan). A circular railing rings the chamber. Id. The warden's official witnesses are allowed to stand at this railing, which is only a few feet from the chamber itself. See Ex. 51 (floor plan); Ex. 41 at 3-4 (Decl. of Russell Stetler); Ex. 42 at 5 (Decl. of David K. Li). Other witnesses stand on two-tiered risers, also located in the witness area, approximately six to eight feet removed from the chamber. See Ex. 51 (floor plan); Testimony of Martin Leon Harris, 1 RT 26. The views from the Witness Observation Area are of the inmate's side and back. Id. Media witnesses are on risers that afford a view of the right side of the inmate; the inmate's witnesses are placed on risers that provide a left-side view of the inmate. Ex. 41 at 4 (Decl. of Russell Stetler); 1 RT 26 (Harris); Ex. 39 at 4 (Decl. of Michael Kroll).
The Physicians' Observation Area encompasses the remaining area around the chamber -- namely, the door to the chamber and two additional windows. Ex. 51 (floor plan); 2 RT 62 (Vasquez). Inside the Physicians' Observation Area is a manometer, which measures pressure in order to ensure that there is a lower pressure inside the chamber than outside, thus preventing leakage of the lethal gas from the chamber. 2 RT 66-67 (Vasquez). Below the manometer, and immediately next to the chamber, is a red lever called the immersion lever. Ex. 88 (diagram of chamber); 2 RT 70 (Vasquez). When the lever is pushed, the armature beneath the chair lowers the cheesecloth bag of sodium cyanide crystals into the sulfuric acid mixture under the chairs. 2 RT 67, 74 (Vasquez).
Behind and to the side of the Physicians' Observation Area is the Mixing Room, where the chemicals for the lethal gas solution are prepared. See Ex. 51 (floor plan); Ex. 87 (drawing of controls); 2 RT 63 (Vasquez). It contains two mixing bowls that are used to mix the sulfuric acid and distilled water. 2 RT 64-65 (Vasquez). The bowls are connected by pipe to the reservoirs under the chairs inside the chamber; one bowl empties into each of the two reservoirs. Id.6
Prior to an execution, a solution of one gallon and one pint of distilled water and two quarts and one pint of sulfuric acid is mixed in the mixing bowls. Ex. 93A (redacted protocol); 2 RT 93 (Vasquez). One pound of sodium cyanide crystals, wrapped in cheesecloth, is suspended above the reservoirs on the armature. Ex. 93A (redacted protocol).
The inmate is then strapped tightly into Chair B by prison guards. 1 RT 27 (Harris); 2 RT 95-96 (Vasquez); Ex. 93A (redacted protocol). Once the inmate is strapped to the chair, he or she can move only his or her head slightly from side to side and forward, and his or her fingers. 1 RT 30-31 (Harris). The acid/distilled water mixture is then released from the mixing bowls and carried, through a pipe, to the reservoirs under each chair. Ex. 93A (redacted protocol).
During the execution process, certain members of the "execution team" are present in the Physician's Observation Area, including the Warden and two physicians. 2 RT 101-04 (Vasquez). During the execution, one member of the team pushes the immersion lever, lowering the crystals into the acid-water mixture. Ex. 93A (redacted protocol). This produces hydrocyanic gas, which rises and is inhaled by the prisoner.