The Last Gasp
Page 9
The new law required that a suitable cell be constructed for inflicting the death penalty by gas, and it specified that the warden, a competent physician, and six other citizens must witness the execution. The news wire reported, “It is planned that when the condemned man is asleep the air valves shall be closed and others, admitting lethal gas, be opened, life being taken without the prisoner awakening.”59 Several suggestions were made for ways to carry out the gassing when the prisoner was asleep. “It is anticipated the gas will be administered much as gas is administered to a patient in a dental chair or to a person preparing for a surgical operation,” one local newspaper reported. “In other words, it will be a form of anesthesia, and the administrator will probably be an expert anesthetist chosen from among physicians or male nurses. Those who favor this method of dealing death declare it is absolutely painless.”60
Nevada’s innovation received worldwide publicity. An editorial in the New York Times commented, “The electric chair is not modern enough for the Nevadans, apparently, or else it displeases them in some way, and their law calls for the use of putting of condemned murderers to death in what is called in euphemistic terms a ‘lethal chamber’—a room that can be made airtight and into which at will can be introduced through hidden conduits a suffocating gas.”61 Nevada’s lethal gas approach provided further dramatic testimony in support of Amos Fries’s vision: gas would act as a powerful deterrent to America’s public enemies while serving as the “most humane” weapon of war yet devised.
Meanwhile, Nevada’s cyanide machinations continued to be bound up in economics and politics. In May 1922, the United States Senate was taking up the tariff issue. Senator Reed Smoot, a Republican from Utah and a Mormon apostle who was strongly protariff, attacked Roessler & Hasslacher as being the sole agent of the German cyanide cartel in the United States. Smoot said the firm had made “unconscionable” profits from its sale of cyanide; however, he still argued for the 10 percent duty proposed by the committee on the grounds that without it the cyanide industry in the United States would be destroyed, and as a result Germany and Canada would control the American market. Then, Smoot said, he had no doubt that the Germans would force the Canadian company (American Cyanamid) out of business and impose ruinous prices on American consumers as it had done in the past.
On the other hand, Senator Key Pittman (the Nevada Democrat who represented Tonopah mining interests) argued that the proposed duty was in the interest of only one company and its subsidiaries, Roessler & Hasslacher, adding that with it the firm would charge “what the citrus fruit growers and the miners of this country can afford to pay.” Pittman charged that two days before the United States entered the war against Germany, Roessler & Hasslacher’s owners had transferred stock to German-American citizens in order to conceal the company’s true German ownership.
But Senator Theodore Frelinghuysen, a Republican from New Jersey (site of Roessler & Hasslacher’s headquarters), declared that Roessler & Hasslacher was now American-owned and therefore subject to tariff protection.62 In the end, the tariff act of 1922 brought tariff barriers to new heights, guaranteeing U.S. manufacturers in several fields a monopoly of the domestic market. But the Senate, on the motion of Senator Tasker L. Oddle, Republican of Nevada, voted to make cyanide duty-free.63 The Fordney-McCumber Tariff signed by President Harding on September 21, 1922, created an average duty of 14 percent on all imports, and an average of 38.5 percent on dutiable imports, but cyanide was an exception, which resulted in a considerable increase in imports of that material.64 The tariff act created a chemical division of the United States Tariff Commission to investigate production costs and other factors in the competitive situation regarding various commodities, and some of the commission’s surveys contained information about trade secrets and cost data of individual manufacturers.65 The tariff exemption saved the mining industry a great deal of money and in the process benefited American Cyanamid as well as German interests. “The action on the part of the Senate is very gratifying to the mine operators of Nevada and the entire West,” said the secretary of the Nevada Mine Operators Association.66 In its aftermath, the purveyors of cyanide jockeyed to take advantage of the changes to come.
By the time the conservative Quaker lawyer and staunch Republican William Brown Bell became head of American Cyanamid in 1922, the company had already branched out to begin making cyanide from cyanamid, and it had also started to produce hydrocyanic acid, which would prove an especially important ingredient in the vulcanization of rubber. By the mid-1920s the cyanide end of its product line had helped to propel American Cyanamid into a period of substantial growth. One of the hallmarks of Bell’s administration was that he provided little information to his stockholders or anyone else about the company’s activities or revenue sources, while at the same time he studied his competitors’ elaborate reports as a means of sharpening his competitive edge.67
By 1923 the alien property custodian had been confiscating German patents and German-controlled businesses in the United States, and Roessler & Hasslacher was under intense scrutiny that prompted it to cloak its German ties. In one of its most important expanding markets, Southern California, new cyanide plants were going up. One of these plants was started near Cudahy City. Its manufacturer was the newly established California Cyanide Company, a corporation chartered in Delaware in April 1923. The company was a subsidiary of the Air Reduction Company, an enterprise that sold oxygen and other gases, and which had been started by Percy A. Rockefeller, a nephew of John D. Rockefeller. The directors of the California Cyanide Company included a collection of East Coast and West Coast industrialists and bankers: Charles Edward Adams, a banker (and later a member of the Federal Reserve) who headed the Air Reduction Company; Samuel F. Pryor, the president of Remington Arms and a director of the German Hamburg-Amerika Line, who would later be called before a congressional committee to testify about his involvement with the IG Farben cartel; Colonel Leonor Fresnel Loree, the railroad tycoon; and Frederick W. Braun of Los Angeles, a prominent California businessman and developer who had long served as the West Coast sales agent for Roessler & Hasslacher Chemical Company and the Pacific R & H Chemical Corporation in Los Angeles.68
Deaths caused by the rampant introduction of poisons into so many sectors of American society were now and then reported, as when cyanide-laced mooring ropes cost seamen their lives, or when citizens inspired by what they read in the newspaper turned on the gas to commit suicide or laced their husband’s coffee with cyanide.69 But in an era before strict government regulation, incidents such as these were often overlooked, and they seldom resulted in any serious follow-up.
Fries and his supporters didn’t seem to be troubled by the dangers chemicals posed. Instead, they railed against the “menace” resulting from a “rising tide” of nonwhite immigration. One of his former captains in the Chemical Warfare Service, Representative Albert Johnson, chairman of the powerful Committee on Immigration and Naturalization, led the charge in Congress to restrict the immigration influx. Like Fries, Johnson was a transplanted Midwesterner who had ended up in Washington state, and his politics were extremely conservative, nativist, white supremacist, and antisocialist.70 Exclusionary immigration acts were enacted in 1921 and 1924. In 1921 China and Japan were portrayed as restless enemies of the United States, and fears of the “yellow peril” ran especially high in the Western states of California, Oregon, Washington, and Nevada.71
After Germany’s defeat in the war, Fries focused his greatest scorn on those he considered America’s newest threat—the Reds. Like Attorney General A. Mitchell Palmer, J. Edgar Hoover, and other anti-Communist zealots, Fries did his part in the Red Scare. Although the United States had signed the treaty at the Washington Conference on the Limitation of Armament, Fries also warned that other governments were secretly preparing poisonous chemicals for war purposes.72
In July 1922, at the same time that congressional agreement was reached on exempting cyanide from the Tariff Act, the War Depa
rtment announced that the manufacture of poison gas for the army was being discontinued. Under the pact, however, limited quantities for research and development of gas-defense appliances would still be produced. The secretary of war directed General Pershing to sign the order shutting down the production of poison gas.73 After the international treaty prohibiting the use in war of asphyxiating, poisonous, or other gases and all analogous liquids, materials, or devices, was signed, the U.S. Senate ratified it by a vote of seventy-two to zero.74
At the same time, General Pershing also issued an order granting officers the same right of self-expression as civilians and he encouraged them to exercise their civic duty. Fries used this newfound license to make speeches and write articles attacking pacifist organizations for being part of a worldwide Communist conspiracy. Even after later orders explicitly forbade such activities, Fries used his army resources to conduct a wide-ranging propaganda campaign against his political opponents.75 The American Defense Society, the Lions Club, and other right-wing patriotic groups backed Fries’s efforts, denouncing any critics as “disloyal” stooges of Moscow.76 The National Council for the Prevention of War and other pacifist groups protested these allegations and denied they promoted Communism, but this didn’t stop the printing presses and mailings.77 Fries directed his office librarian, Lucia R. Maxwell, to prepare a detailed graphic using U.S. Army files that purported to show the sinister links between many of the peace organizations that lobbied against chemical warfare and in favor of the League of Nations and the Geneva Convention. Maxwell’s widely circulated “spider-web chart” listed the League of Women Voters, the National Council for Prevention of War, the Women’s Christian Temperance Union, and several other moderate groups as “Reds” who were secretly committed to international socialism. At the bottom of her chart she also included a polemical poem deriding “Miss Bolsheviki.” The Red-baiting chart was printed in Henry Ford’s newspaper as proof of the worldwide Communist conspiracy.78
Both the Chemical Warfare Service and the Military Intelligence Division of the War Department were instrumental in fomenting the Red Scare throughout the early 1920s. Aiding them were the Department of Justice, the American Legion, the Veterans of Foreign Wars, the American Chemical Society, and other groups.79 Fries and his allies also lobbied against America’s support for the Geneva Protocol, which sought to outlaw chemical warfare. He and the chemical industry adamantly opposed restrictions on America’s chemical gas production.80 Led by DuPont, Dow, and other large chemical concerns, the industry mounted a campaign aimed at defending gas warfare on practical and humanitarian grounds.81 They also enlisted civic groups such as chambers of commerce, Rotary Clubs, and the Kiwanis. Together the alliance demanded continued funding of the Chemical Warfare Service, renewed government contracts and subsidies for the chemical industry, and high tariffs to prevent German and other foreign competition from challenging America’s greatly enhanced chemical power. By and large, they got what they wanted.
The League of Nations at Geneva attempted to ban poison gas, and the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, was signed in 1925, but it did not go before the Senate for a vote until late 1926. In the end, thanks to lobbying by Fries and others, the United States did not sign the Geneva Protocol.
CHAPTER 4
STAGING THE WORLD’S FIRST GAS EXECUTION
In order to serve as a deterrent and to demonstrate its humane killing power, Nevada’s new weapon against crime would have to be proven effective, and that meant someone had to be executed. The opportunity arose five months after the enactment of the state’s Humane Execution Law, when prosecutors identified a crime with all the makings of a readymade test case.
It occurred in Mina, a tiny copper mining boomtown gone bust, located about 175 miles south of Reno in Mineral County, not far from Toponah Junction. There on the evening of August 21, 1921, Tom Quong Kee, a seventy-four-year-old laundryman and nominal member of the Bing Kung Tong, answered a knock at his cabin door and was shot twice in the heart with a .38-caliber revolver. Within hours of receiving the report, Deputy Sheriff W. J. (“Jack”) Hammill had sized up the crime scene, traced the footprints of two persons from the cabin entrance to a nearby spot yielding automobile tracks and empty beer bottles, and identified a Greek cab driver who had been spotted in the vicinity at that time buying beer for his passengers. Soon Hammill came to suspect two Chinese men who had been seen being driven toward Reno at about that time, and upon their arrival the pair were quickly apprehended.1
Law enforcement authorities said the killing was part of a wave of tong killings that was sweeping nearby Northern California. Most whites, particularly in the Nevada desert, knew very little about Chinese-on-Chinese gangster violence.2 At the time Chinese immigrants were experiencing intense discrimination, as the “yellow peril.” The crime, therefore, fit the bill as a potential landmark capital case.3
Hughie Sing, aged nineteen, one of the pair nabbed for the Mina killing, had attended grammar school in Carson City, and authorities persuaded him to cooperate. Although he weighed only 105 pounds, he claimed to have been a member of the Hop Sing Tong and an underling in crime to an older and larger accomplice, Gee Jon.4
Gee understood little English, having emigrated from Canton around 1907 and having lived ever since within the confines of San Francisco’s Chinatown.5 Although the cops had no hard evidence against them nor any apparent motive, the Reno police chief managed to convince Hughie to confess and implicate his associate, which the youth did in damning detail. Afterward, the pair were transported back to Mina to be held awaiting trial. An intermediary from San Francisco, W. H. Chang, arranged for them to hire a local lawyer, James M. Frame, to represent both men (something that would not be allowed before American courts today due to a conflict of interest).6 The district attorney, Jay Henry White (an active military official), and Sheriff Fred Balzar (who was also chairman of the Nevada Republican Party), mounted a withering prosecution.
Without question, race played a central role in the case. Many white Nevadans at the time harbored considerable prejudice against Asians, and the local press referred to the defendants as “Chinese coolies,” demanding that the state make an example of the Chinese tongs from San Francisco who had brought their murderous ways to peace-loving Nevada.7 Hughie tried to recant his confession, but his fate was sealed. After a brief trial, on December 3, 1921, a jury convicted the two men of first-degree murder. Judge J. Emmett Walsh sentenced both to death, making them the first defendants eligible for execution under the world’s first lethal-gas statute.8
The special nature of the case, especially the required imposition of a new method of legal execution, ensured there would be lengthy appeals, and besides, no death apparatus had yet been put into place to carry out the gassings. Their lawyer moved for a new trial, but his motion was denied, after which he prepared an appeal in state supreme court, arguing that execution by lethal gas constituted cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution.9 Whether the punishment thus inflicted was “cruel” was open to debate, a writer for the New York Times commented, “but that it is ‘unusual’ seems undeniable. Is it therefore unconstitutional? The counsel of the condemned Nevadans say it is, but the electric chair also was ‘unusual’ a few years ago, and yet it has come and remained with the sanction of the courts.”10 Until the courts could sort this out, their executions were delayed, pending the outcome of the appeals. In January 1923 the state court affirmed the convictions and held that execution by lethal gas was not cruel and unusual punishment.11 To satisfy the Constitution, one commentator observed, all that was needed was for the gas chamber to be “modern and scientific.”12
Frame filed another appeal in state supreme court, which was also denied. So he and his partner, Fiore Raffetto, applied for a writ of certiorari in the U.S. Court of Appeals in San Francisco, on multiple grounds.13 But these
actions, too, went nowhere.14 As a last resort, the legal team presented a petition for a writ of error to Associate Justice Joseph McKenna and then to Chief Justice William Howard Taft of the U.S. Supreme Court, but they refused to permit the petition to be filed, indicating that the nation’s highest court wished to wash its hands of the matter of death by lethal gas.15
Eventually the lawyers appealed to the state board of pardons to spare the lives of the two condemned men, arguing that there were mitigating factors and adding, “We feel the extreme penalty should not be exacted and think that commutation of the sentence to life imprisonment would fully vindicate the law and subserve public good and avoid the horror of taking human life by administration of lethal gas, a new and untried method.”16 To support their campaign they gathered more than five hundred letters of support from prominent citizens and civic organizations, including the League of Women Voters in Reno, and sent them in to the pardon board and newspapers.17
With Boyle gone from the governor’s office in 1922, Nevada’s new chief executive was another Democrat, James G. Scrugham, the former state engineer. His opponents called him “Gasoline Jimmy.” Scrugham had served in the war as a lieutenant colonel in the army reserves. He was also one of the founders of the American Legion, of which he had served as the national vice commander in 1920, a position that had put him in close contact with General Amos Fries, Senator Key Pittman, and representatives of the American Chemical Society.18