The Last Gasp Read online

  Even Earl Liston, the once-proud designer of Eaton gas chambers, who had since retired from the company, seemed to have changed his tune with regard to the appeal of gas executions. After Oregon voters turned out against the death penalty in a November 1964 referendum, a Portland bar owner was seeking to acquire the old gas chamber as a novelty attraction. Liston professed his disdain. “I’d put that thing on a ship and dump it five hundred miles at sea,” he said. “I don’t believe in capital punishment and I never have.”55

  CHAPTER 10

  THE BATTLE OVER CAPITAL PUNISHMENT

  By the early 1960s American capital punishment was being attacked on several fronts. The stream of books, movies, and news reports against the death penalty continued, and some churches and other religious organizations also voiced their opposition. Numerous Western nations continued to pressure the United States to end its executions, and America’s cold war adversaries and their proxies had a field day harping on inequities and excesses in American criminal justice. These factors contributed to changing public attitudes. After 1953, Gallup polls began to show a continuing decline in public support for capital punishment, from 70 percent in 1953 to a low of 42 percent in 1966.1

  The change in attitudes was also reflected in an expanding multipronged campaign to abolish the death penalty. Although Governor Brown’s legislative attempt had failed in California, other lawmaking efforts of the era were more successful. Delaware ended hanging in 1958 but restored it in 1961. Kansas observed a moratorium in the late 1950s and early 1960s, when its Republican governor said, “I just don’t like killing people.” In 1964 Oregon voters strongly supported a referendum ending capital punishment in that state. New York’s lawmakers moved to establish a moratorium in 1965, and some other states followed suit. A legislative campaign to abolish the death penalty in New Mexico was also successful. From 1964 to 1966, five states either totally abolished capital punishment or severely limited its use, bringing to thirteen the number of states that had effectively repealed the death penalty, and several more followed closely. In 1966 a constitutional amendment abolishing capital punishment was rejected in Colorado. The federal government had carried out only one execution in ten years, and Senator Philip A. Hart of Michigan had a bill pending to abolish it for all federal crimes.

  Many judges, prosecutors, and juries had become more reluctant to impose the death penalty than they had been in the past. Compared to a total of 158 persons received on American death rows in 1935, the number had dropped to 75 each year in 1944 and 1945, during World War II, and to 79 in 1950, at the start of the Korean conflict. In the wake of the Chessman execution, the number dropped from 140 to 103 from 1961 to 1962, and in 1965 it fell to 86 as 62 prisoners were reprieved from their death sentences. At the end of 1965 there were 331 prisoners awaiting execution in the United States, and the average length of time they were spending on death row was rapidly increasing.2 American executions plummeted dramatically, from 56 in 1960 to 42 in 1961, 47 in 1962, 21 in 1963, 15 in 1964, 7 in 1965, and only 1 in 1966.3 Lynching had also become almost extinct. For the first time in American history it seemed likely that the death penalty was about to become a thing of the past.

  On April 12, 1967, however, these hopes appeared to be in jeopardy as California prepared to carry out its first gassing in four years. Protesters completed an all-night vigil outside the home and office of Brown’s conservative Republican replacement, Governor Ronald Reagan, trying to get him to grant executive clemency to Aaron Mitchell, a thirty-seven-year-old black man convicted of slaying a Sacramento policeman during a robbery in 1963. Reagan staunchly refused. “Here was a case in which every legal avenue had been tried—the U.S. Supreme Court twice, the California Supreme Court twice,” he said. “The law is the law, and it must be upheld.”4

  Five hundred demonstrators gathered outside San Quentin, some of them fastening flowers to the gate and singing mournful folk songs. George Lincoln Rockwell, the American Nazi leader, caused a fracas when he appeared with a sign supporting the execution. Amid the furor, the fifty-eight official witnesses were let in to assume their posts. California’s Episcopal bishop, C. Kilmer Myers, had requested churches throughout the state toll their bells at the scheduled hour of Mitchell’s execution. Media organizations rushed to prepare background features.

  Meanwhile, in the holding cell, Mitchell’s behavior had turned bizarre. The guards found him stark naked, and his left arm was covered with blood where he had cut himself. His eyes were wild, and his hair, which had always been neatly combed, stood up at odd angles. “The state never executes the person who committed the crime,” the prison chaplain who was with him later observed. “The one who finally steps into the gas chamber is by no means the same person who entered death row years earlier. To believe so is to ignore the terrible forces that mold, strengthen, shatter a man in the surrealistic world of the condemned.”

  When Chaplain Byron Eshelman entered Mitchell’s cell and inquired about his condition, the doomed prisoner replied, “You’re not Jesus Christ,” and he later kept saying, “I am Jesus Christ, this is the blood of Jesus Christ. I am Jesus Christ, this is the blood of Jesus Christ.” The doctor and three psychiatrists examined him in the cell and held up his bloody arm to test for catatonic tension. When they left him, he asked, “Can I put my arm down?” to which one doctor simply replied, “Put your arm any way you want.” Later guards came in, wrestled him down, and pulled on his clothes. When they tried to cover his wound, he resisted, saying, “You don’t want to help me, you just wanna kill me.” As they dragged him to the gas chamber he let out a piercing shriek that chilled the witnesses gathering in the nearby room. The guards thrust him into the chair and slapped on the eight thick straps, binding him tight. Then the escorts stepped out and the heavy Eaton door was clamped shut, leaving him to twist and squirm. “I am Jesus Christ!” Mitchell said.

  Moments later, the lever clicked, releasing the poison pellets into the acid, and blowers began sucking the lethal gas upward all around him. Outside the prison some demonstrators wailed or cheered as smoke curled from the chimney above the death chamber that some called “the smokehouse.”5

  Howard Brodie, a veteran news artist, had received permission from Warden Lawrence Wilson to attend the execution. Now he found himself just across the glass from Mitchell’s struggling body. Working as fast as he could, Brodie summoned all his skill and composure to hurriedly sketch the sight just four feet away. “I did not want to believe what was happening in front of me,” Brodie later declared. “His mouth was constantly moving. Bubbles of saliva formed on his lips. His chest was heaving…. His clenched hands showed the extraordinary duress that he suffered. Aaron sat tense, heart pounding, and mouth opening and closing, for many minutes, long enough to burn into my memory the images that I used for my drawing, images which have remained with me for 25 years.”6 Another witness, who had been told by prison authorities that the proof of a painless death could be spotted in a person’s hands, was shocked to note that Mitchell died “with clenched fists, the skin taut over his knuckles,” adding, “I don’t believe those hands ever relaxed.”7

  Figure 13 Gas chamber execution of Aaron Mitchell, San Quentin, April 12, 1967. Eyewitness drawing by Howard Brodie. Courtesy of Howard Brodie.

  California’s gas chamber had become an agonizing crucible for prison staff as well. James W.L. Park, a clinical psychologist, was one of those who participated in Mitchell’s execution. “I find that people who function fairly calmly in tight situations have a little tape recorder in their heads that records all this stuff,” he said, “then they have to work through it later.” After the Mitchell ordeal, Park’s first reaction was that once the lever went forward and the gas was released, nobody could stop an execution, underscoring the fact that the whole action was “irrevocable… and whatever potential that person may have had was never realized. Any possibility of redemption is gone.” Park said his second observation was how “task-oriented” he and the other par
ticipants became. “I wasn’t concerned with taking Mitchell’s life,” he told an interviewer, “I was concerned with, ‘Was that phone on the wall going to ring? Was I going to have to answer some judge’s or governor’s question?’ And so I was totally focused on the task—not on the fact that a man was being killed.”8

  Mitchell’s execution set off waves of revulsion and exultation among death penalty opponents and supporters. Details were reported worldwide. A month and a half after Mitchell’s execution, Colorado carried out a gassing of its own. Republican governor John Arthur Love, a former navy pilot and federal prosecutor, refused to grant clemency. A forty-eight-year-old Puerto Rican car salesman, Luis J. Monge, was about to enter the history books. He stood convicted of killing his pregnant wife and three of the couple’s ten children after his wife had discovered he’d had an incestuous relationship with one of their daughters. In Denver, demonstrators wearing black armbands paraded in front of the statehouse, while outside the prison in Cañon City an encampment of picketers protested the impending execution.

  Unlike Mitchell, Monge, who had fired his attorneys, seemed calm and cooperative. After learning that he would not receive a third stay of execution, he handed over his possessions, including a painting of the crucifixion and his pet parakeet, to two of his sons, and he signed papers giving his corneas to a blind boy in Buena Vista. Then, after a short walk to the changing room on the third floor, he stripped to his shorts as directed and walked into the gas chamber.9

  A Denver reporter who witnessed what happened next later wrote, “The public likes to believe that unconsciousness is almost instantaneous, but the facts belie this.” Journalist Gary Stiff noted that the official execution log concluded that unconsciousness came more than five minutes after the cyanide splashed down into the sulfuric acid. “And to those of us who watched,” he said, “this five-minute interlude seemed interminable. Even after unconsciousness is declared officially, the prisoner’s body continues to fight for life. He coughs and groans. The lips make little pouting motions resembling the motions made by a goldfish in his bowl. The head strains backward and then slowly sinks down to the chest. And, in Monge’s case, the arms, although tightly bound to the chair, strained at the straps, and the hands clawed tortuously, as if the prisoner were struggling for air. Any account that leads readers to believe that death comes quickly, painlessly, almost pleasantly, is less than accurate.”10

  Colorado’s execution of Luis Monge in June of 1967 would turn out to be the last execution in the United States for a decade, and the last gas-chamber execution for twelve years. This gassing, and the others preceding it, as well as the thousands of capital punishments carried out by hanging and electrocution, were about to become a legal relic, at least for a while. Now increased attention was being focused on what the U.S. Supreme Court would rule about the constitutionality of the death penalty.

  Until recently, the constitutionality of the death penalty had not been in serious doubt, nor had any of the legal execution methods, including hanging, electrocution, firing squad, and lethal gas. No court had ever found any method to violate the ban against cruel and unusual punishment that the framers of the Constitution had added to the Bill of Rights, and the U.S. Supreme Court had never reviewed evidence concerning whether any method of execution violated the Eighth Amendment.11 As early as 1910 the Court had recognized that the Eighth Amendment’s prohibitions weren’t limited to only those punishments that had been in effect at the time the Bill of Rights was adopted.12 What was or was not “cruel and unusual” remained legally vague.13 In 1958, however, the Supreme Court decided in Trop v. Dulles (356 U.S. 86) that the Eighth Amendment contained an “evolving standard of decency that marked the progress of a maturing society.”14 Although Trop was not a death penalty case, abolitionists argued that the United States had progressed to the point at which its “standard of decency” should no longer tolerate the death penalty. Then, in 1963, Justice Arthur Goldberg, joined by Justices William O. Douglas and William J. Brennan Jr., indicated a willingness to consider the legality of the death penalty on several grounds, at least for rape.15 This signal had contributed to the de facto moratorium on capital punishment that had generally held at the time of the Mitchell and Monge executions and their aftermath.

  Under the Warren Court revolution of the 1960s, the Supreme Court radically transformed the rights of criminal defendants. Virtually all of the prisoners sitting on death row at that time, who had been convicted under the old rules, suddenly found themselves with a legal leg to stand on. Their capital convictions were open to attack because the evidence against them had been illegally obtained, because they had been subjected to the “third degree” or questioned without a lawyer; because nobody had advised them of their legal rights; or because their access to the courts had been obstructed or they had been denied counsel because they were poor—matters that hadn’t troubled the courts before, but which now were suddenly deemed unconstitutional.16 Even if the death penalty itself was not found unconstitutional, the criminal justice practices that had resulted in the convictions were themselves subject to constitutional challenge. Looking back on his more than twenty years as death row chaplain at San Quentin, Reverend Eshelman sadly exclaimed, “It is numbing to realize that all of the 501 persons executed to this point in history by the state of California would have grounds for retrial in light of new decisions brought forth by the courts.”17 In other words, the Court had not only “handcuffed the police,” but it had also detained the executioner.

  The filing of a large number of lawsuits in the late 1960s contributed to a voluntary moratorium on executions from June 2, 1967, to 1972, as the Supreme Court wrestled with the issues. No state attempted to conduct an execution during this period. The legal moratorium was largely the work of the NAACP Legal Defense Fund (LDF), led by Stanford University law professor Anthony Amsterdam, who mounted a full-scale attack on the death penalty that succeeded in blocking all executions for five years, creating a death-row logjam. The LDF, founded in 1940, had handled a number of landmark racial discrimination cases and worked closely with the Reverend Martin Luther King Jr. and other civil rights activists.18 Amsterdam, a descendant of a long line of rabbis and former law clerk to Associate Justice Felix Frankfurter, had drafted briefs in several important criminal cases, including Miranda v. Arizona, and soon established himself as the most brilliant legal strategist in capital punishment. In the fall of 1967 he successfully argued the case of Maxwell v. Bishop before the Eighth Circuit, leading the Supreme Court to strike down the Arkansas death penalty and require a separate postconviction hearing on sentencing.19 In that case, the LDF utilized America’s most respected criminologist, Marvin E. Wolfgang of the University of Pennsylvania, to present data showing the impact of racial discrimination.

  During the 1968 presidential campaign, the Republican candidate Richard M. Nixon made crime one of his benchmark issues and the Supreme Court his whipping boys. Upon his election in 1969, Nixon appointed Warren E. Burger to replace Earl Warren as chief justice and the Court became increasingly conservative. By early 1972 the liberal bloc was down to three justices, and some observers wondered if they would adopt an abolitionist position, even though world opinion seemed to have turned against capital punishment. But Amsterdam devised webs of intricate arguments designed to tie up the Court on several fronts for years to come. In January 1972 he returned to the Court to argue a major death penalty case, Furman v. Georgia. William Furman was a burglar whose pistol accidentally went off when he was fleeing a home, the bullet tearing through a screen and killing the owner. “If a penalty is generally, fairly and uniformly enforced,” Amsterdam argued, “then it will be thrown off the statute books as soon as the public can no longer accept it. But when the penalty is enforced for a discriminatorily selected few, then all the pressures which normally exist to strike an indecent penalty off the books no longer exist. The short of the matter is that when a penalty is so barbaric that it can gain public acceptance only by
being rarely, arbitrarily and discriminatorily enforced, it plainly affronts the general standards of decency of the society.”20

  A month after oral arguments had been heard in Furman, but before the final outcome of the case was announced, the California Supreme Court ruled 6–1 that the state’s capital punishment statute violated the state constitution’s ban on “cruel and unusual punishment,” and it vacated 107 death sentences.21 Some activists at the time concluded that there would never again be an execution in the United States. Soon they seemed to be proven right. The U.S. Supreme Court announced its decision in Furman on June 29, 1972, stunning many legal observers. It struck down the death penalty for the first time in U.S. history, invalidating all death penalty laws that existed at the time throughout the country. The nation’s entire capital punishment system was found unconstitutional. For the first time, the Court held that the death penalty laws as written violated the “cruel and unusual punishment” provision of the Eighth Amendment and the due process guarantees of the Fourteenth Amendment. The Court found the death penalty had been administered in such a discriminatory, capricious, and arbitrary manner as to violate the Constitution, and two members of the majority held that the death penalty itself was unconstitutional regardless of how it was administered. Georgia was an electric chair state, and Justice Byron (“Whizzer”) White observed that Furman’s sentence seemed so freakishly arbitrary and capricious that he likened it to being struck by lightning.

  The Supreme Court’s decision in Furman was the longest and most complex pronouncement in high court history, with each of the nine justices penning his own opinion. Finding points of agreement required the services of legal experts with a lot of time on their hands. By a 5–4 margin the Court did not rule the death penalty itself to be unconstitutional for all crimes and all circumstances, only under the specific laws by which it was applied.22 One justice, Brennan, who went the farthest in rejecting capital punishment per se, held that “death is an unusually severe and degrading punishment; there is a strong probability that it is inflicted arbitrarily; its rejection by contemporary society is virtually total; and there is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment.”23 Nixon’s appointees formed a solid bloc in defense of the death penalty. In his lead dissent Chief Justice Burger referred to the “worldwide trend toward limiting the use of capital punishment, a phenomenon to which we have been urged to give great weight,” but he said the Court had to rely on its “written Constitution.”24