The Last Gasp Read online

  So, with two of America’s dominant methods of execution subject to ongoing constitutional assault, some legal scholars have wondered if lethal gas might somehow reemerge to fill the vacuum. That doesn’t appear very likely—for reasons this book makes plain. Simply put, the gas chamber has lost its legitimacy.

  The nature of a society’s system of criminal punishment reveals a great deal about that society’s values and power structure. Several books have examined the strange birth of the electric chair as a gimmick in the epic battle between Thomas Edison and George Westinghouse for dominance in the electrical power industry, and scores of articles and monographs probe the strange history of the even more medicalized alternative execution method of lethal injection (which was first implemented by the Nazis).14 Yet no such attention has been given to the American invention of the gas chamber, even though its unfolding is more illuminating and far-reaching. Surprisingly, even death-penalty scholars have neglected lethal gas. I hope that this book will stimulate further study.

  Very few penologists have offered any hypotheses to explain why a society tends to adopt a specific form and degree of criminal punishment at a certain time. Some of the more persuasive theories have focused on the nature of the social structure in which the new punishment was introduced. Georg Rusche and Otto Kirchheimer in Punishment and Social Structure (1939) contended that fiscal motives have shaped the punishments developed in modern society, arguing that “every system of production tends to discover punishments which correspond to its productive relationships.” In another related work, Rusche, a Jewish Communist who had fled Nazi Germany, went so far as to claim that “the history of the penal system is… the history of relations [between] the rich and the poor.”15

  Theories of class struggle and capitalist profit seeking may help to explain the origin of the electric chair at the dawn of the electrical age in tumultuous industrial America. Such interpretations might also serve to account in part for the rise of the lethal chamber that had been championed by upper-class intellectuals for use against the “unfit” at a time when powerful chemical companies were dominating the modern industrial age, changing the nature of warfare, and championing the extermination of pests. But as far as the introduction of the gas chamber is concerned, Rusche and Kirchheimer’s approach seems to be too economically deterministic and neat to fully explain why and how the new execution method of lethal gas originated, spread, and died out.

  What is clear is that neither punishment, the electric chair nor the gas chamber, arose simply as a response to crime, and indeed, there appears to have been little relationship between the nature of the penalties and the crimes that they were meant to punish. As Rusche and Kirchheimer have pointed out, “Punishment is neither a simple consequence of crime, nor the reverse side of crime, nor a mere means which is determined by the end to be achieved.” Their writing proved prophetic. The Nazis rendered individual guilt irrelevant. For the victims of the Holocaust, there was no connection between crime and punishment; the prisoners had not committed any criminal offense, and many were helpless children. According to Rusche and Kirchheimer, “Punishment must be understood as a social phenomenon freed from both its juristic concept and its social ends. We do not deny that punishment has specific ends, but we do deny that it can be understood from its ends alone.”16

  Rusche and Kirchheimer were rightly skeptical that humanitarian motives had ever been primarily responsible for determining changes in punishments such as methods of execution. Such wariness seems warranted, even though in the case of the lethal chamber much of the early impetus for its use came in the shape of calls for euthanasia that would end needless suffering and rid society of unwanted animals or persons who were deemed to be better off dead. Notions of “humane” treatment, humanitarianism, benevolence, tenderheartedness, philanthropy, and the effort to ease the pain and suffering of the oppressed gained considerable respectability in the early twentieth century—particularly as the world was reeling from the effects of the Great War and other traumas that were antithetical to these qualities.

  This movement toward “humane executions” did not occur in a vacuum. At the precise moment when reformers in Nevada were enacting the “Humane Execution Law” to put criminals to death by means of poison gas, the renowned Alsatian philosopher and physician Albert Schweitzer was delivering his first lectures and publications introducing his philosophy of “reverence for life.” And in 1936, as intellectual support for gas euthanasia was high, the great humanist Schweitzer was characterizing the “modern age [as a time] when there are abundant possibilities for abandoning life, painlessly and without agony.”17

  The rise of the gas chamber also grew out of the birth of modern warfare, with its growing willingness to decimate civilian populations by chemical warfare and other means as part of a program of total war. Confronted by the fact that civilian noncombatants were relatively innocent and therefore shouldn’t be subjected to the same treatment as warriors, some military and political leaders advocated chemical attacks that would exterminate the enemy civilian population, but in a “kind” way that would reduce pain and suffering.

  Likewise, in industry at that time, the purveyors of deadly chemicals sought to employ their manufactured poisons in every conceivable way, particularly as pesticides that would eradicate insects and rodents that destroyed crops and spread disease. Adverse consequences for human beings or the ecosystem were never seen as a problem.

  The particular lethal gases selected for executions in the twentieth century were originally billed as “humane” agents that would kill very quickly without causing the person being killed pain and suffering, and thus would finally spare the executioners and witnesses as well—something that had not previously been achieved by any other method of execution. That cyanide was already used to extract gold, toughen steel, and exterminate pests—vermin and insects that were subhuman and contrary to the interests of man—further enhanced its penal appeal. This was not only because the poison supposedly killed quickly and painlessly, but also because it put condemned humans in the same category as bothersome insects and rats, for which polite society was not bound to feel any sympathy, and because it conjured up images of producing pure gold or manufacturing the strongest steel. And yet, from the time of its earliest use, experience showed that cyanide was not nearly as quick, painless, or humane as was originally claimed; it also polluted the environment and poisoned the body politic. But states would nevertheless continue to use it, and the Nazis embraced it as an optimal tool for genocide.

  The gas chamber, then, represented a great social laboratory in which one could control and study the mechanisms of death and dying, possibly leading to new discoveries that would remove the element of painful suffering and maybe even enable scientists to find the key to life itself. In short, gassing provided a gateway into all sorts of areas that had nothing to do with responding to crime.

  • • •

  Postmodern philosophers and social theorists have injected more penetrating insight into the philosophical discussion about criminal punishment. In the 1970s Michel Foucault’s critique of the ways in which new modes of criminal punishment became rationalized as technologies of power within modernity began to offer a way to analyze changing historical definitions of the “proper” relationship between the individual and the state. In Discipline and Punish (1977) Foucault examined the birth of the prison from the perspective of the body as social subject, arguing that the move from corporal punishment to imprisonment that occurred after the Enlightenment reflected an important change by which the direct infliction of pain was replaced by an increased spiritualization of punishment. Foucault characterized the “disappearance of torture as a public spectacle” and the “elimination of pain” (a “gentle way in punishment”) as specific features of post-Enlightenment modernity and governmentality, features that were subsumed in new discursive regimes of criminality, science, and the self.

  Although Foucault didn’t mention lethal gas per
se, many of these discourses formed the underpinning for twentieth-century visions of the lethal chamber. Who were its designated “beneficiaries” of humane punishment? They were the criminal and defective classes, whose lives were not worth living, whose elimination would preserve the health of the social body, and whose deaths could conceivably be carried out without pain or suffering through medical regulation and scientific execution. Some executioners rationalized their use of lethal gas as the agent of needed “cleansing” and “euthanasia”—not as a form of retributive execution.

  As if building on Franz Kafka’s great short story “In the Penal Colony,” Foucault immersed himself in what David Garland has described as “the minutiae of penal practice and the intricacies of institutional life in a way which recalls—and goes beyond—the classic [sociological] studies of prison life offered by [Donald] Clemmer, [Gresham] Sykes and [Erving] Goffman.”18 In doing so, Foucault raised, among other things, an important issue for the study of capital punishment: that modern legal executions of prisoners are carried out in prisons, not in the public square. Foucault’s close attention to the environmental aspects of the formalized killing process and the meticulous regulatory practices whereby modern criminal subjects are created has opened important new pathways for thought. His analysis not only captures the essence of the modern penal apparatus. It also indicates why the notion of capital punishment as a “commonsense” solution for crime is inherently flawed.

  Foucault introduced into the discussion more attention to the essential notion of resistance. Prior to Foucault, most discussions of penal systems and capital punishment completely left out any consideration of resistance. In doing so, they denied agency on the part of prisoners and their supporters and even their executioners. Foucault’s understanding of the intrinsic link between power and resistance was complex and evolving. He famously said, “Where there is power, there is resistance, and yet, or rather consequently, this resistance is never in a position of exteriority in relation to power.”19 Simply put, he did not ascribe much agency to modern subjects, and many philosophers have taken him to task on this score.

  In this history of the rise and fall of the American gas chamber, on the other hand, acts of resistance are an integral part of the story. What Bryan G. Garth and Austin Sarat in another context have called “the tactics of resistance of disempowered persons” can be seen as taking many forms, including on the prisoners’ part such actions as work stoppages, hunger strikes, attempted escapes and revolts, volunteering to take the place of another condemned person, issuing impassioned speeches and writings, making defiant gestures, and mounting protracted legal appeals, to name a few. Resistance on the part of their allies and advocates is also described. Some of these actions include picketing the prison and governor’s mansion, waging constant legal battles through the courts and legislatures, and organizing movements against capital punishment. Some types of resistance occurred from the beginning; others appear to have increased over time, until finally states were compelled to abandon their use of the gas chamber.

  Resistance to the gas chamber ultimately unmasked hegemonic notions of state-sponsored killing as being naturally just and humane, and finally destroyed its legitimacy as a method of execution. But the fall of the gas chamber went beyond that. In the end the resistance not only destroyed the moral legitimacy of the gas chamber; it also challenged the fundamental legitimacy of capital punishment itself.

  This rise and fall of the gas chamber is problematic and incomplete because the defenders of capital punishment substituted another “rational” technique—lethal injection—in place of the discredited methods, and this replacement method of the poison needle is similarly shrouded in the trappings of bureaucratic management and medical ceremonialization. Lethal injection is hideous in its own right, but it is not a practical tool for mass murder. Unlike gassing, it is too unwieldy and individualized for carrying out genocide.

  Social theories have their strengths and weaknesses. One might say, for example, that Rusche and Kirchheimer’s orthodox Marxist approach overestimates the importance of economic forces in shaping penal practice and underestimates the influence of political and ideological factors, giving little attention to the symbols and social messages conveyed.20 Foucault’s work is less a history of the birth of the prison than it is a structural analysis of the state’s power to discipline and punish, and he devotes considerable attention to knowledge and the body while ignoring other angles of interpretation. Instead of underestimating the role of politics in punishment, Foucault goes so far as to define punishment as “a political technology” and “a political tactic.”21

  Another social theorist whose work is especially pertinent here is the German philosopher and sociologist Jürgen Habermas, who in his youth actually lived in Nazi society. Habermas went on to write of “the cruel features of an age which ‘invented’ gas chambers and total war, state-conducted genocide and terrorism, death camps, brain-washing, and panoptical control of whole populations.” He also noted that the twentieth century “‘produced’ more victims, more dead soldiers, more murdered citizens, more killed civilians and displaced minorities, more dead by torture, maltreatment, hunger, and cold, more political prisoners and refugees than previously were even imaginable. Phenomena of violence and barbarism define the signature of the age.”22 Habermas’s main aim was to develop social theory that would advance the goals of human emancipation while maintaining an inclusive universalist moral framework. His work squarely recognized the horrors of the Holocaust, yet he also held out hope that Germans and others who lived through it may have learned something beneficial from the disasters of the first half of the century.

  Historians criticize many of these aforementioned theories on the basis that their broad generalities are not historically grounded and supported by detailed historical research that is particular to time and place. My own study—although influenced by the general theoretical work of Rusche and Kirchheimer, the classical sociologists, Albert Schweitzer, Foucault, Habermas, and other social theorists and writers about punishment and the Holocaust—essentially takes this position. I have opted for a historical approach rather than offering what might have been primarily a social theory of punishment: the book presents the results of detailed historical research into the rise and fall of the American gas chamber in specific states during the later three-quarters of the twentieth century. I have tried to pay attention to historical antecedents, ideological and political underpinnings, and changing political status over time. I’ve also sought to place these developments in their economic and social context, showing how the technology of gas-chamber executions evolved in response to scientific and political concerns.

  Until now there has not been a book or even a single major article exploring this dreadful history. This book tells the story of the American gas chamber from its early imaginings to its nightmarish last gasp, with an attempt to place the developments in a historical context. The investigation takes us into several different arenas of modern science, war, industry, medicine, law, politics, and human relations, marshaling evidence from many quarters.

  There remains much to learn for those willing to probe for it. Studying this subject has been a painful and demanding experience, but criminal punishments and crimes against humanity, I have long believed, can reveal many things about a civilization, and the tragic saga of the rise and fall of the lethal chamber is full of the stuff philosophers and tragedians dwell upon—and fools ignore at their own peril.

  PART ONE

  THE RISE Of THE LETHAL CHAMBER

  CHAPTER 1

  ENVISIONING THE LETHAL CHAMBER

  The history of the gas chamber is a story of the twentieth century.

  But an earlier event that would subsequently figure into its evolution occurred one day in 1846, when a French physiologist, Claude Bernard, was in his laboratory studying the properties of carbon monoxide (CO), a colorless, odorless, and tasteless gas that would eventually be recognized as
the product of the incomplete combustion of carbon-containing compounds. By that time the substance was already suspected of somehow being responsible for many accidental deaths, but nothing was known about the mechanism of its poisoning. Bernard therefore set out to explore its mysterious lethality by means of scientific experiment.

  Bernard forced a dog to breathe carbon monoxide until it was dead, and immediately afterward opened the creature’s body to examine the result. The Frenchman observed the blood of the lifeless canine spilling onto the table. As he examined the state of the organs and the fluids, what instantly attracted his attention was that all of the blood appeared crimson. Bernard later repeated this experiment on rabbits, birds, and frogs, always finding the same general crimson coloration of the blood.

  A decade later Bernard conducted additional experiments with the gas in his laboratory–turned–killing chamber, carefully recording each of his actions as he proceeded. In one instance he passed a stream of hydrogen through the crimson venous blood taken from an animal poisoned by carbon monoxide, but he could not displace the oxygen in the dead creature’s venous blood. What could have happened to the oxygen in the blood, he wondered?

  Bernard continued with other experiments designed to determine the manner in which the carbon monoxide could have made the oxygen disappear. Since gases displace one another, he naturally thought that the carbon monoxide could have displaced the oxygen and driven it from the blood. In order to confirm this, he tried to place the blood in controlled conditions, which would permit him to recover the displaced oxygen. He then studied the action of carbon monoxide on the blood by artificial poisoning. To do this he took a quantity of arterial blood from a healthy animal and placed it under mercury in a test tube containing carbon monoxide. He then agitated the entire setup in order to poison the blood while protecting it from contact with the outside air. After a period of time he looked to see if the air in the test tube that was in contact with the poisoned blood had been modified, and he determined that it was notably enriched with oxygen, at the same time that the proportion of carbon monoxide was diminished. It appeared to Bernard after repeating these experiments under the same conditions that there had been a simple exchange, volume for volume, between the carbon monoxide and the oxygen in the blood. But the carbon monoxide that had displaced the oxygen in the blood remained fixed in the blood corpuscles and could no longer be displaced by oxygen or any other gas, so that death occurred by the death of the blood corpuscles, or, to put it another way, by the cessation of the exercise of their physiological property that is essential to life.1 Not long after performing one of these experiments, Bernard’s health suddenly deteriorated, perhaps, in part, as a consequence of the poison carbon monoxide gas to which he was exposed during his morbid experiments.