ON APPLICATION TO VACATE STAY
Rehnquist, White, Blackmun, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas.
Harris claims that his execution by lethal gas is cruel and unusual in violation of the Eighth Amendment. This case is an obvious attempt to avoid the application of McCleskey v. Zant, U.S. (1991), to bar this successive claim for relief. Harris has now filed four prior federal habeas petitions. He has made no convincing showing of cause for his failure to raise this claim in his prior petitions.
Even if we were to assume, however, that Harris could avoid the application of McCleskey to bar his claim, we would not consider it on the merits. Whether his claim is framed as a habeas petition or § 1983 action, Harris seeks an equitable remedy. Equity must take into consideration the State's strong interest in proceeding with its judgment and Harris' obvious attempt at maniplulation. See In re Blodgett, U.S. (1992); Delo v. Stokes, U.S. (1990) (KENNEDY, J., concurring). This claim could have been brought more than a decade ago. There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.
The application to vacate the stay of execution of death is granted, and it is ordered that the orders staying the execution of Robert Alton Harris entered by the United States Court of Appeals for the Ninth Circuit in No. 92-70237 on April 20, 1992 are vacated.
JUSTICE STEVENS, with whom Justice BLACKMUN joins, dissenting.
In a time when the Court's jurisprudence concerning the imposition of the death penalty grows even more complicated, Robert Alton Harris brings a simple claim. He argues that California's method of execution--exposure to cyanide gas--constitutes cruel and unusual punishment and therefore violates the Eighth and Fourteenth Amendments. In light of all that we know today about the extreme and unnecessary pain inflicted by execution by cyanide gas, and in light of the availability of more humane and less violent methods of execution, Harris' claim has merit. I would deny the State's application to vacate the stay imposed by the Court of Appeals and allow the courts below to hear and rule on Harris' claim.
Execution by cyanide gas is "in essence asphyxiation by suffocation or strangulation."*fn1 As dozens of uncontroverted expert statements filed in this case illustrate, execution by cyanide gas is extremely and unnecessarily painful.
"Following inhalation of cyanide gas, a person will first experience hypoxia, a condition defined as a lack of oxygen in the body. The hypoxic state can continue for several minutes after the cyanide gas is released in the execution chamber. During this time, a person will remain conscious and immediately may suffer extreme pain throughout his arms, shoulders, back, and chest. The sensation may be similar to pain felt by a person during a massive heart attack."*fn2
"Execution by gas . . . . produces prolonged seizures, incontinence of stool and urine, salivation, vomiting, retching, ballistic writhing, flailing, twitching of extremities, [and] grimacing."*fn3 This suffering lasts for 8 to 10 minutes, or longer.*fn4
Eyewitness descriptions of executions by cyanide gas lend depth to these clinical accounts. On April 6, 1992, Arizona executed Don Eugene Harding.
When the fumes enveloped Don's head he took a quick breath. A few seconds later he again looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight. Don then took several more quick gulps of the fumes.
"At this point Don's body started convulsing violently. . . .His face and body turned a deep red and the veins in his temple and neck began to ...