A federal appellate court ruled Wednesday that execution in California's gas chamber is unconstitutional.
The decision, the first appellate opinion anywhere to strike down a specific method of execution, was a resounding victory for death-penalty foes, who have lost previous fights to ban execution by methods including hanging and shooting.Ironically, though, it could make it harder for "Freeway Killer" William Bonin to stop his execution this Friday. Bonin, a 49-year-old inmate convicted in the deaths of 14 teenagers, has argued that an order to execute him by lethal injection is illegal because he has a right to choose gas instead.
Three judges of the 9th U.S. Circuit Court of Appeals - J. Clifford Wallace, Alex Kozinski and Melvin Brunetti - scheduled a hearing Thursday to consider that claim and others by Bonin lawyers.
Wednesday's opinion was signed by Brunetti, and judges Harry Pregerson and Thomas Nelson. It cited an 1890 U.S. Supreme Court ruling that forbade punishment involving "torture or lingering death" as a violation of the 8th Amendment ban on "cruel and unusual punishments."
It quoted the findings of U.S. District Judge Marilyn Hall Patel, a federal judge from San Francisco who ruled against further use of the gas chamber at San Quentin after a lengthy trial in 1993.
Patel found in 1994 that inmates put to death there were conscious up to a minute after taking the first breath of gas and fell in and out of consciousness for several more minutes, suffering "intense, visceral pain . . . akin to a major heart attack or to being held under water."
The appeals court called her findings "fully supported" by medical and other records.
The 9th Circuit parted company with federal appellate courts in New Orleans and Richmond, Va., which have upheld execution by gas in other states. Those opinions weren't based on the extensive records that were available in California, the 9th Circuit said.
Few states still have gas chambers, and North Carolina was the last state to use one, in June 1994.