658
Stevens, J., dissenting
tive indicia that reflect the public attitude" toward execution by lethal gas, Stanford v. Kentucky, 492 U. S., at 370, clearly exhibit a nearly universal rejection of that means of execution.9 Cf. Enmund v. Florida, 458 U. S. 782, 788-796 (1982); Coker v. Georgia, 433 U. S. 584, 593-597 (1977). All of this leads me to conclude that execution by cyanide gas is both cruel and unusual, and that it violates contemporary standards of human decency.10
More than a century ago, we declared that "[p]unishments are cruel when they involve torture or a lingering death." In re Kemmler, 136 U. S. 436, 447 (1890). In light of our contemporary understanding of the methods of execution and in light of less cruel alternatives presently available, I believe that execution by cyanide gas is "incompatible with 'the evolving standards of decency that mark the progress of a maturing society.' " Estelle v. Gamble, 429 U. S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)).
The State contends that Harris should have brought his claim earlier. This is not reason enough to upset the stay issued by the Court of Appeals and dispatch the considered judgment of the 14 appellate judges who voted to rehear the case en banc. Indeed, although reluctant to recognize
9 Notably, a memorandum prepared by California corrections officials correctly observes that "[l]ethal injection is considered to be more humane than other methods of execution (e. g., hanging, firing squad, lethal gas, or electrocution)." 1 Exhibits, Exh. 11, at 4.
10 In Wilkerson v. Utah, 99 U. S. 130, 135-136 (1879), we ruled that punishments of "unnecessary cruelty" violated the Eighth Amendment, citing the ancient practices of drawing and quartering and "public dissection" as examples. Similarly in In re Kemmler, 136 U. S. 436, 446 (1890), we indicated that "burning at the stake, crucifixion, [and] breaking on the wheel" were as well cruel and unusual. To that list we might have added the garrotte, a device for execution by strangulation developed—and abandoned—centuries ago in Spain. See G. Scott, The History of Capital Punishment 159-160 (1950). To my mind, the gas chamber is nothing more than a chemical garrotte.
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