The Last Gasp

by Scott Christianson

  As a result of the decision, more than six hundred prisoners who had been sentenced to death between 1967 and 1972 had their death sentences lifted—the greatest mass reprieve in U.S. history.25 But Furman had left the door open to more contentious debate, making capital punishment what some scholars later called “the central doctrinal conflict of the 1970s.”26

  Conservatives rallied to make the death penalty a hot-button political issue. Governor Ronald Reagan, who wanted to run for president, said he was “deeply shocked and disappointed” by the California court’s action, calling it “one more step toward totally disarming society in its fight against violence and crime.” Other Republicans teamed with law enforcement groups to restore the death penalty in the state by public referendum.27 Then the reaction to Furman added more fuel to the fire. All over the country, tough-on-crime politicians attacked “lenient” judges, and Democrats and Republicans alike scrambled to outdo themselves in supporting severe punitive penalties. In the wake of Furman, legislators in many states soon began to write new death penalty laws that would comply with the ruling. Within four years, thirty-four states responded by passing new capital punishment laws, and death rows around the country swelled to more than six hundred condemned prisoners—back to where it had been before. During the backlash to the Furman decision, only one state—Rhode Island—drafted its new death penalty statute with the gas chamber as its new method of execution. (Nobody was executed in it, and Rhode Island eventually abolished its death penalty in 1979.)28

  But lethal gas, electrocution, hanging, and the firing squad all had a significant history in the United States. Their methods of administration were more than a line in the statute books—they had actually been carried out, and each method left its own paper trail. Some of the evidence showing exactly how executions had been performed could be found in the states’ own archival files. Like the Watergate tapes, such records had been compiled and kept by the government itself, and the evidence had never left state custody. Because of this unbroken chain, the evidence could prove particularly incriminating for the state. Evidence of botched, cruel, or torturous executions might make a specific method of execution susceptible to constitutional challenge on Eighth Amendment grounds.

  California’s Governor Reagan was well aware of the realities of capital punishment, having experienced both the legal and political turmoil over the death penalty issue, and the messiness of an actual lethal gas execution. He had not forgotten about Aaron Mitchell. And as an experienced image maker he recognized the public’s distaste for the gas chamber in particular. But Reagan wanted to champion the death penalty, so he devised a smart political move.

  Just as Vice President Spiro Agnew was about to resign on corruption charges and before President Nixon selected Representative Gerald Ford as his replacement, Reagan slyly suggested an alternative execution method that might overcome a variety of problems. “Being a former farmer and horse raiser,” he said, “I know what it’s like to try to eliminate an injured horse by shooting him. Now you call the veterinarian and the vet gives him a shot and the horse goes to sleep—that’s it.” (In addition to avoiding any explicit reference to lethal gas, Reagan’s example about killing a horse instead of a small animal such as a cat or dog avoided an obvious link to the gas chamber, since the usual method vets used to euthanize them was to put them in a portable gas chamber, not to give them a shot. A horse, however, was too big to fit in a veterinarian’s gas chamber.) Reagan continued, “I myself have wondered if maybe this isn’t part of our problem [with capital punishment], and maybe we should review and see if there aren’t even more humane methods now—the simple shot or tranquilizer.” In closing, he left another clue that he had not forgotten about the gas chamber and its eugenic ideals, saying, “I think maybe there should be more study of this to find out, if there’s a more humane way, can we still improve our humanity.”

  Reagan’s remarks were picked up by Time magazine in October 1973 and widely circulated among conservatives.29 They not only buttressed his credentials as a conservative supporter of capital punishment, thereby possibly aiding his political ambitions, but they also offered the pro–death penalty movement a useful suggestion for a new stratagem to employ in their revised death penalty statutes. His comments appeared just as Israel was responding to being attacked in the Yom Kippur War.

  After Furman, the pro–death penalty campaign continued to turn public opinion back in favor of executions. In 1976, in considering Gregg v. Georgia, the U.S. Supreme Court revisited the death penalty, upholding Georgia’s new capital-sentencing procedures when it concluded that Georgia officials had sufficiently reduced the problem of arbitrary and capricious imposition of death associated with earlier statutes. The plurality opinion specifically addressed “the basic contention that the punishment of death for the crime of murder is, under all circumstances, ‘cruel and unusual’ in violation of the Eighth and Fourteen Amendments,” and concluded “the punishment of death does not invariably violate the Constitution.”30 In its plurality opinion, the Court held, “Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe.”31

  Given the rising tide of political agitation in favor of the death penalty, the decision left no doubt that executions would be resumed. Soon after the new Gregg ruling, what had been a nearly ten-year national voluntary moratorium on executions ended with the firing-squad killing of Gary Gilmore in Utah on January 17, 1977. To call Gilmore a “volunteer” for execution was an understatement: he had waged a vocal campaign demanding to be put to death. 32 Like the breaking of a taboo, the moratorium was smashed. The huge backlog of prisoners facing execution on death row quickly overwhelmed the resources of the LDF, the American Civil Liberties Union, and other capital defenders, prompting fears of a “blood bath.”33

  Amid the ensuing turmoil, several states contemplated whether to retain their existing method of execution or to switch from the electric chair or lethal gas to the latest alternative: lethal injection.34 Texas and Oklahoma legislators vied to become the first to adopt the new method. Oklahoma’s governor David Boren signed it into law on May 11, 1977, with Texas following the very next day. “I would like to see this [legal execution] carried out in a nice clean room, something that doesn’t look like a prison,” the Texas Department of Corrections Protestant chaplain was quoted as saying in June 1977. “I hesitate to use the word pleasant, but it would be just like going in, laying down and going to sleep.”35

  As legal analysts debated how to craft or challenge new death-penalty statutes to meet constitutional muster, the realities of death by lethal gas would finally begin to come into sharper focus.

  CHAPTER 11

  “CRUEL AND UNUSUAL PUNISHMENT”?

  By the late 1970s American public opinion was swinging ever more strongly in favor of the death penalty. Although the public’s appetite for gas chambers had diminished, eleven states—Arizona, California, Colorado, Maryland, Mississippi, Missouri, Nevada, New Mexico (until 1978), North Carolina, Rhode Island, and Wyoming—still clung to that method of capital punishment. But the legal battle over the constitutionality of lethal gas executions, and the rise of the new method of lethal injection, were just beginning to take hold.

  Henry Schwarzschild, the director of the American Civil Liberties Union Capital Punishment Project—and a German émigré who had worked both in U.S. counterintelligence during World War II and the antiwar movement during the Vietnam War—served as one of the key national players in the anti–death penalty movement in the late ’70s. Schwarzschild, like the NAACP Legal Defense Fund (LDF), was based in New York and familiar with all the latest developments involving the death penalty throughout the nation and
beyond. He was a keen political observer and shrewd strategist who spent much of his time dealing with lawyers, scholars, and members of the news media.

  Schwarzschild once told an interviewer, “American self-esteem rode high from the end of World War II to the Vietnam War. It was the century of America. We were the richest, most powerful, most industrialized, most sophisticated, most effective country in the world. That was very much the sense that America had of itself.” But the long Vietnam War proved extremely divisive and resulted in a tremendous blow to American self-esteem. As the war ended, and Watergate further shook many Americans’ faith in their political institutions, the culture became “dominated by a kind of macho reaction,” according to Schwarzschild. Toughness became the “universal solvent to every problem that America face[d] abroad or at home,” and Americans exhibited an overwhelming desire to demonstrate to themselves and everyone else that they were a tough people. They wanted to show that they were hard on crime. They wanted long sentences and harsh prisons. Even though it had been shown that the death penalty did not deter crime or make citizens safer, and although other nations increasingly regarded executions as barbaric, Americans increasingly supported capital punishment.1 In retrospect, Schwarzschild’s analysis appears to have been very astute.

  Once legislatures had passed new death penalty measures that were upheld by the courts, and the nation’s ten-year “voluntary moratorium” on executions had ended, the only remaining question was how the resumption of killings would unfold. At first, the most vulnerable targets for execution appeared to be prisoners who refused to fight for their lives and rejected legal efforts on their behalf.

  John Spenkelink of Florida, however, fiercely contested his electrocution, with urgent assistance from the LDF and others. Beginning in 1977 his case became a cause célèbre, and his portrait was published on the cover of the New York Times Magazine with the headline “Will He Be the First?” He actually became the second person executed in the United States since Gregg when on May 25, 1979, he was put to death in the electric chair. His gruesome execution required three separate jolts of electricity, until death was finally pronounced after five excruciating minutes.2

  After Spenkelink’s execution, attention shifted to Jesse Walter Bishop, who was facing execution by lethal gas in Nevada. Bishop, a white, forty-six-year-old drug addict, was awaiting his execution on Carson City’s death row for fatally shooting a newlywed while robbing a Las Vegas casino two years earlier. Bishop had pleaded guilty and scorned appeals, preferring instead to accept his fate. As his execution date approached, Bishop took refuge in psychiatric treatment, as blond nurses in white dresses brought him plenty of tranquilizers. The Maryland man whose son Bishop had murdered said, “I don’t think killing him will help my son or my feelings…. I just can’t see where it’s going to do any good.” But Bishop was determined to die.3 Bishop got his wish on October 22, 1979, becoming the first person to be executed by lethal gas since Luis Monge in Colorado in 1967.4

  Nevada hadn’t used its gas chamber for eighteen years, and those assigned to carry out the execution weren’t entirely confident about their ability to pull it off without a problem. Some of them warned the witnesses that if they smelled anything “funny,” they should hold their breath and exit the chamber quickly. In the end, the chamber did not leak, but one eyewitness, the TV reporter Tad Dunbar, later said, “I was surprised to see that death did not appear to come quickly or painlessly under that method of execution.”5 Such wrinkles didn’t stop other states from going forward with executions by whatever means they had on their statute books, including lethal gas. But the gas chamber was no longer touted as a “humane” method of execution.

  The tiny platoon of anti–death penalty lawyers kept fighting an unrelenting battle against overwhelming odds, and it wasn’t until September 1983 that the next gas execution became imminent. It happened in Mississippi, a state notorious for its impoverished capital defense.

  Jimmy Lee Gray, a thirty-four-year-old former computer operator who had been on parole for killing his childhood sweetheart, stood convicted of abducting a three-year-old girl, carrying her to a remote area, sexually molesting her, suffocating her in a muddy ditch, and throwing her body into a stream. Gray, not surprisingly, did not engender much public sympathy. In the seven years before his execution, judicial review of the case had been undertaken eighty-two times by twenty-six different state and federal judges. One of his latest arguments was to try to convince the courts that execution by lethal gas amounted to cruel and unusual punishment, in violation of the Eighth Amendment.

  On September 1 the U.S. Supreme Court denied Gray’s request for a stay by a 5–3 vote. “This case illustrates a recent pattern of calculated efforts to frustrate valid judgments after painstaking judicial review over a number of years,” Chief Justice Warren Burger declared. “At some point, there must be finality.”6 However, Justice Thurgood Marshall, with whom Justice Brennan concurred, noted in his dissent that “Petitioner argues that the method by which the state of Mississippi plans to execute him—exposure to cyanide gas—constitutes cruel and unusual punishment. In support of that claim, he submitted to the United States District Court for the Southern District of Mississippi numerous affidavits that described in graphic and horrifying detail the manner in which death is induced through this procedure.” In one of these declarations, Dr. Richard Traystman, director of the Anesthesiology and Critical Care Medicine Research Laboratories at Johns Hopkins Medical School, had described the gassing process as follows:

  Very simply, cyanide gas blocks the utilization of the oxygen in the body’s cells…. Gradually, depending on the rate and volume of inspiration, and on the concentration of the cyanide that is inhaled, the person exposed to cyanide gas will become anoxic. This is a condition defined by no oxygen. Death will follow through asphyxiation, when the heart and brain cease to receive oxygen.

  The hypoxic state can continue for several minutes after the cyanide gas is released in the execution chamber. The person exposed to this gas remains conscious for a period of time, in some cases for several minutes, again depending on the rate and volume of the gas that is inhaled. During this time, the person is unquestionably experiencing pain and extreme anxiety. The pain begins immediately, and is felt in the arms, shoulders, back, and chest. The sensation is similar to the pain felt by a person during a heart attack, where essentially, the heart is being deprived of oxygen. The severity of the pain varies directly with the diminishing oxygen reaching the tissues.

  The agitation and anxiety a person experiences in the hypoxic state will stimulate the autonomic nervous system…. [The person]… may begin to drool, urinate, defecate, or vomit. There will be muscular contractions. These responses can occur both while the person is conscious, or when he becomes unconscious.

  When the anoxia sets in, the brain remains alive for from two to five minutes. The heart will continue to beat for a period of time after that, perhaps five to seven minutes, or longer, though at a very low cardiac output. Death can occur ten to twelve minutes after the gas is released in the chamber.

  Dr. Traystman further testified that the execution by lethal gas is sufficiently painful that it is disfavored in the scientific community as a method of putting animals to sleep. “We would not use asphyxiation, by cyanide gas or by any other substance, in our laboratory to kill animals that have been used in experiments—nor would most medical research laboratories in this country use it.” He continued:

  In my view, if the lethal-gas method operates in the manner described by petitioner, the Court of Appeals clearly erred in ruling that the method is not “cruel” under “present jurisprudential standards.” The Eighth Amendment proscribes “punishments which are incompatible with ‘the evolving standards of decency that mark the progress of a maturing society.’”7

  Gray was known to have become a born-again Christian and taken up writing poetry while on death row. The night before his scheduled execution, he had a final meal of M
exican food, strawberries, and milk. About thirty-five minutes before his final appointment, he was taken from his cell in a maximum-security unit to the “last night room,” a windowless cubicle that adjoins the death chamber, where he received services from several ministers and prepared to meet his maker. Outside the prison, several dozen members of the Mississippi Coalition Against the Death Penalty continued to chant for the governor to grant clemency while the mosquitoes drank their blood. “I’m glad it’s happening,” said Richard A. Scales Jr., the father of the slain girl, Deressa Jean. “It should have happened years ago.”8

  Ivan Solotaroff, the journalist who published The Last Face You’ll Ever See (2001), a vivid account of recent executions in Mississippi, described the six-sided death chamber as “smaller than one would think, roughly four feet square and ten feet high. Almost beautiful, if one is mechanically inclined, it’s also extremely alien looking, like an antique, six-sided diving bell someone painted gray, slathered with petroleum jelly, and jammed into a metal wall that divides two of the three rooms that form the death house.” (The heavy coating of Vaseline on the doorway’s rubber gaskets was intended to prevent any cracking that might allow gas to escape from the seal once the door was shut.) The chamber’s waist-high, wire-reinforced, tinted green windows were embedded on five of the hexagon’s sides, offering a close view of the proceedings. Three windows were for the witnesses, one was for the two physicians who would monitor Gray’s heartbeat with an EKG machine and a stethoscope, and the last, located to the left of the chamber’s heavy door, was for the executioner.9