The Last Gasp

by Scott Christianson

  The U.S. Supreme Court later vacated the Ninth Circuit’s decision in light of the California legislature’s subsequent amendment of the state’s death penalty statute allowing lethal injections to be used unless the capital defendant specifically requested to die by lethal gas.61 But since the ruling by the District Court in Fierro, neither the federal Circuit Court of Appeals nor the U.S. Supreme Court had faulted the argument that death by lethal gas amounted to cruel and unusual punishment.

  On January 30, 1998, after another North Carolina prisoner waived his appeals, the state prepared to execute him by lethal gas at Central Prison. Ricky Lee Sanderson had been on death row for ten years after he was sentenced for the rape and murder of a sixteen-year-old girl. Sanderson was a drug addict with a long criminal record, but his case was unusual in that he had come forward and confessed to the murder after the police had mistakenly charged another man in the case. A born-again Christian, Sanderson said he had come to believe he deserved to die for his crime and he didn’t want to put the victim’s family through any more grief by fighting his execution.

  Martin Kady II was one of the reporters who appeared in Raleigh to witness the execution. When the guards pulled back the gas chamber curtains, Kady was surprised to see in the bright light a chubby, grayhaired man clad in a diaper and boxer shorts. Sanderson’s eyes appeared to convey a sense of “eerie serenity.” The murdered girl’s father sat in front of Kady in the witness room. As the execution team prepared the death chamber, Sanderson called out from his chair, loudly thanking Jesus. As the white plume filled the chamber, Sanderson’s skin turned beet red and he strained against the leather straps. “The executioners,” Kady noted, “had placed a grim, medieval looking leather hood over his face. His eyes were covered so we couldn’t look him in the eye as he died, but nostril holes ensured the deadly gas would be properly inhaled. As he squirmed, white fluid flowed from his nose. His chest heaved as the gas infiltrated his lungs and rendered them obsolete.”

  After ten minutes, the warden opened the door. “Ladies and gentlemen,” he announced, “the judgment of the courts has been carried out. Time of death, 2:19 A.M.”62

  CHAPTER 12

  THE LAST GASP

  The last gasp of the American gas chamber came in 1999 in Florence, Arizona. Ironically, and fittingly some might think, the case involved the United States and Germany.

  Two brothers, Walter LaGrand, born in 1962, and Karl LaGrand, born in 1963, were German nationals who had moved to the United States with their mother in 1965. In 1982 both were sentenced for stabbing to death a bank manager during a botched robbery.1 After the case went all the way to the U.S. Supreme Court, which denied review, the LaGrands filed petitions for writs of habeas corpus. Arizona law gave the condemned the right to choose between lethal injection or lethal gas as their method of execution. Both brothers chose gas in the hope that the courts would find the method unconstitutional.

  When this tactic failed, Karl accepted a last-minute offer of a lethal injection, and he was executed on February 24, 1999.2 Walter, however, said he would prefer lethal gas as a means of protesting the death penalty, even though it was said to be more painful.

  The possibility of executing a German in the gas chamber evoked potent images. One of the claims Walter LaGrand raised in his habeas petition was that execution by lethal gas constituted cruel and unusual punishment under the Eighth Amendment to the Constitution. But the U.S. District Court found the claim to be procedurally defaulted because LaGrand had failed to raise it either on direct appeal or in his petition for state postconviction relief.

  Less than an hour before he was supposed to be put to death in the gas chamber, however, Walter’s execution was delayed when the Ninth Circuit Court of Appeals found that death by lethal gas was “cruel and unusual punishment.” As part of its order, the Ninth Circuit stayed his execution and enjoined Arizona from executing him “or anyone similarly situated, by means of lethal gas.”3

  Like his brother, Walter had filed a petition for writ of habeas corpus challenging lethal gas as a cruel and unusual form of execution. On March 3, 1999, the U.S. Supreme Court granted Arizona’s application to lift the Ninth Circuit’s order enjoining the use of lethal gas, granted certiorari, and summarily reversed the prior decision without oral argument.

  In an 8–1 per curiam opinion, the Court rejected Walter LaGrand’s argument of ineffective assistance of counsel and held that, by his actions, he had waived his claim that execution by lethal gas is unconstitutional. According to the Court, “On March 1, 1999, Governor Hull of Arizona offered Walter LaGrand an opportunity to rescind this decision and select lethal injection as his method of execution. Walter LaGrand, again, insisted that he desired to be executed by lethal gas. By declaring his method of execution, picking lethal gas over the state’s default form of execution—lethal injection—Walter LaGrand has waived any objection he might have to it.” The Court also found that his claims were procedurally defaulted because he hadn’t challenged the unconstitutionality of lethal gas quickly enough. According to the Court’s tortured legal logic:

  At the time of Walter LaGrand’s direct appeal, there was sufficient debate about the constitutionality of lethal gas executions that Walter LaGrand cannot show cause for his failure to raise this claim. Arguments concerning the constitutionality of lethal gas have existed since its introduction as a method of execution in Nevada in 1921. See H. Bedau, The Death Penalty in America 16 (1982). In the period immediately prior to Walter LaGrand’s direct appeal, a number of states were reconsidering the use of execution by lethal gas, see Gray v. Lucas, 710 F.2d 1048, 1059–61 (CA5 1983) (discussing evidence presented by the defendant and changes in Nevada’s and North Carolina’s methods of execution), and two United States Supreme Court Justices had expressed their views that this method of execution was unconstitutional, see Gray v. Lucas, 463 U. S 1237, 1240–44 (1983) (Marshall, J., joined by Brennan, J., dissenting from denial of certiorari). In addition, lethal gas executions have been documented since 1937, when San Quentin introduced it as an execution method, and studies of the effect of execution by lethal gas date back to the 1950s. See Bedau, supra, at 16.

  Justice John Paul Stevens dissented, saying, “The answer to the question whether a capital defendant may consent to be executed by an unacceptably torturous method of execution is by no means clear. I would not decide such an important question without full briefing and argument.”4

  By then the Walter LaGrand case had become the subject of an international furor over American capital punishment. Germany, which did not have the death penalty, asked Arizona’s Governor Jane Dee Hull to halt the execution, but she refused, saying the death penalty was popular in her state. She rejected appeals from German chancellor Gerhard Schröder and Foreign Minister Joschka Fischer. Germany asked the world court to intervene, and German officials contended that Arizona had failed to advise the LaGrand brothers of their right to consular assistance at their trials, as state officials were required to do under the Vienna Convention on Consular Relations.

  Ultimately the case was heard by the International Court of Justice in The Hague as Case Concerning the Vienna Convention on Consular Relations (Germany v. United States of America), General List No. 104 (March 3, 1999). Although the international court had no enforcement powers, Judge Christopher Weeramantry of Sri Lanka urged the United States government to use “all the measures at its disposal” to prevent the executions.5 President Bill Clinton turned a blind eye. The U.S. Department of State conveyed the wishes of the International Court of Justice to Governor Hull of Arizona without comment, and the Arizona clemency board recommended she grant a stay on the basis of the pending international case. But Governor Hull ignored the recommendation.

  On March 3, 1999, Walter LaGrand, a prisoner who was both German and American, became the next person in history to be put to death in an American gas chamber. Minutes before he was killed, he apologized for his actions. He also said, “To all my loved ones, I ho
pe they find peace. To all of you here today, I forgive you and I hope I can be forgiven in my next life.”

  Eighteen minutes after the cyanide pellets were dropped, he was pronounced dead.6 LaGrand turned out to be the last person to be executed by lethal gas in the twentieth century. The lethal chamber had taken its final victim.

  Afterward, many Germans accused the United States of “barbarism” and flouting international law, and ultimately the International Criminal Court ruled in favor of Germany and against the United States.7 The roles from Nuremberg had been reversed, and now it was the Americans who were found guilty.

  Even after the end of the twentieth century, the U.S. Supreme Court of the United States still would not bring itself to address the question whether execution in the gas chamber amounted to cruel and unusual punishment in violation of the Constitution.8 No amount of evidence could convince it otherwise.

  But in the court of world opinion, the gas chamber represented one of modernity’s worst crimes; it was an instrument of torture that first had been disguised as a humane alternative to pain and suffering. What originally had seemed to be such a noble and practical idea turned out to be something else entirely.

  Dreamers, scientists, soldiers, merchants, lawmakers, lawyers, physicians, governors, journalists, wardens, keepers—and, of course, the condemned prisoners—all made their unique contribution to the rise and fall of the gas chamber. But the creation of a “painless and humane” method of killing proved elusive. Despite all of their utopian schemes, laboratory experiments and mathematical formulas, blind obedience, commercial arrangements, legislative clauses, legal briefs, stopwatches, stethoscopes, death warrants, witnesses peering into peepholes, execution protocols, and public relations pronouncements, America’s use of lethal gas as a method of capital punishment ended with the close of the twentieth century. But its awful legacy will continue for a long time to come.

  APPENDIX 1

  EARL C. LISTON’S PATENT APPLICATION

  Patented Sept. 12, 1939 2,172,768

  UNITED STATES PATENT OFFICE

  2,172,768

  LETHAL GAS CHAMBER

  Earl C. Liston, Denver, Colo.

  Application October 16, 1937, Serial No. 169,359

  2 Claims. (CI. 128—303)

  This invention relates to a lethal gas chamber for the execution of condemned criminals and has for its principal object the provision of a complete efficient assembly which will provide a

  5 gas tight chamber equipped with death chairs, gas generating equipment, gas exhaust equipment, and gas counteracting equipment, all under the control of one man located at one point so that a complete control can be had of

  10 the gas generation and the gas elimination from the executioner’s position.

  Another object of the invention is to so construct the above mechanism so that it will form a complete unit which can be efficiently built into

  15 a building structure to provide rooms for the witnesses, warden, doctor, and executioner, all grouped about the complete single unit.

  Another object of the invention is to provide a neat, compact, mechanism which will humanely

  20 execute the criminal or criminals with the least possible delay and confusion, and which will allow quick entry after the execution without danger to the attendants.

  Other objects and advantages reside in the

  25 detail construction of the invention, which is designed for simplicity, economy, and efficiency. These will become more apparent from the following description.

  In the following detailed description of the

  30 invention reference is had to the accompanying drawings which form a part hereof. Like numerals refer to like parts in all views of the drawings and throughout the description.In the drawings—

  35 Fig. 1 illustrates a front elevation of the lethal gas chamber and gas generating pit.

  Fig. 2 is a detail view of the gas exhaust valve.

  Fig. 3 is a. plan view of the chamber.

  Fig. 4 is a horizontal section, taken on the line

  40 4—4, Fig. 1.

  Fig. 5 is a detailed section, taken on the line 5—5, Fig. 4.

  Fig. 6 is a detail view illustrating an alternate form of gas generator.

  45 Fig. 7 is a detail view of the cyanide crystal valve.

  Fig. 8 is a detail view of the ammonia distributing screen.

  The invention comprises a vertical cylindrical

  50 metallic cell 10 closed at its top with a conical roof 11, the central portion of which is flattened to provide a fan platform 12.

  The cell is provided with a series, preferably five, of gas-tight glass windows 13 and with a

  55 door 14 swung from suitable hinges 15, The door, when closed, is clamped against a sealing gasket 16 through the medium of a clamping latch mechanism 17. The hinges and the latches are of the usual heavy duty refrigerator type.The cell is sealed at its bottom with a metal

  5 floor 18. The floor, walls, and roof are all preferably welded together to form a hermetically sealed structure.One or more death chairs 19 are secured to the floor 18 by means of suitable stud bolts 20. In

  10 the cell illustrated, two chairs are employed. These chairs are of metal throughout and are provided with wire screen seats through which the lethal gas may pass.In the form illustrated in Figs. 1 and 4, a generating

  15 pit 21 is excavated below the cell 10. This pit contains two lead lined, gas generating pots 22 for containing hydrochloric acid. A gas pipe 23 leads upwardly from each of the generating pots 22 and opens through the floor 18 directly

  20 below each of the chairs. The flow of gas through these pipes is controlled by the means of gas valves 24 which are actuated in unison from a connecting rod 25. A gas waste pipe 26 leads from the upper portion of each pot through a

  25 control valve 27 which is also connected with the connecting rod 25. The relation of the valves 24 and 27 is such that when the former are opened the latter will be closed.

  Each pot 22 carries a cyanide funnel 28 for

  30 holding cyanide crystals. The flow of the crystals to the pots is controlled by means of butterfly valves 29 which are actuated by connecting links 30 from the handles of the valves 24. The relation of the valves 24 and 29 is such that both will

  35 open simultaneously. Each pot is provided with an acid drain cock 31. The connecting rod 25 leads through a bell crank lever 32 and rod 33 to a gas control lever 34 which is hinged on the

  40 side of the cell 10.

  An exhaust fan 35 is mounted on top of the cell and driven from a suitable electric motor 36. The exhaust fan communicates with the interior of the cell through an elbow 53, shown in detail in Fig. 2. The elbow has an exhaust plate valve

  45 37 controlling its opening to the cell. When this valve moves upwardly, it seals against suitable sealing gaskets 38. The plate valve is continuously urged to the closed position by means of a compression spring 39 acting on a valve stem 40.

  50 It is moved to the open position by means of a lever 41 which is actuated by a rod 42 from a second control lever 43.

  Four compressed air pipes 44 lead into the bottom

  55 of the cell 10 from any suitable air supply (not shown). The air pipes are controlled by-gate valves 45. Between each gate valve and the cell is an ammonia container 46 supported upon a drain pipe 47 which leads into the air pipe 44.

  5 The flow of ammonia is controlled by an ammonia valve 48 at each air pipe. Within the latter immediately below the ammonia pipe is an inclined screen 54 which acts to disperse the ammonia in the incoming air. At each air pipe the

  10 handles of the valves 45 and 48 are both connected to a pull rod 49, so that when the rod is pulled upwardly both valves will open simultaneously. The pull rods 49 are suspended from cranks 50 on a series of cranks and linkage 51

  15 positioned on the roof of the cell, which is so arranged that, when operated in one direction, all of the valves 45 and 48 will be opened simultaneously, and when operated in the o
ther direction all will be closed. The linkage is operated

  20 by means of a tie rod 52 connected, to the valve lever 41. Thus, it can be seen that when the second control lever 43 is moved downwardly it will simultaneously open the valves 37, 45, and 48. The waste gas pipe 26 may be connected to

  25 the intake of the exhaust fan 35.

  The operation of the device is as follows: The prisoner (or prisoners) is placed in the chair 19 and strapped thereto. The door 14 is closed and clamped against its gaskets. The lever 34 is

  30 lifted, this opens the valves 29 allowing the cyanide to discharge into the hydrochloric acid to generate the lethal gas. The movement of the lever also opens the valves 24 to allow the gas to flow directly to the cell 10 and closes the waste

  35 valve 27 to prevent the escape of gas from the pots 22.When the prisoner has been pronounced dead, the control lever 34 is lowered to close the gas valves 24 and the cyanide valves 29 and to open

  40 the waste valve 27 allowing the surplus gas to escape through the pipe 28. The second control lever 43 is now pushed downwardly to open all of the air valves 45 and all of the ammonia valves 48 causing ammonia vapor to be forced into the

  45 cell. The movement of the lever 43 also opens the exhaust valve 37 and the fan 34 operates to discharge the neutralized gas. When the lethal gas has been completely neutralized and removed, the lever 43 is raised to shut off the in-

  50 coming air and ammonia and the cell is opened.The particular cylindrical construction of the cell adapts it to a building of the type necessary for its purpose. Per instance, a partition wall can be built up to the cell at the left side of the