The Last Gasp

by Scott Christianson

  46. William L. O’Neill, Coming Apart: An Informal History of America in the 1960s (Chicago: Quadrangle Books, 1971), pp. 276–77.

  47. Hamm, Rebel and a Cause, pp. 137–44.

  48. Homer Bigart, “Eichmann’s Tape Depicts Killings,” NYT, April 20, 1961. See also Eichmann Interrogated: Transcripts from the Archives of the Israeli Police, ed. Jochen von Lang in collaboration with Claus Sibyll, trans. Ralph Manheim (New York: Vintage Books, 1984).

  49. Homer Bigart, “Eichmann to See Preview of Death-Camp Films,” NYT, May 28, 1961; Homer Bigart, “Eichmann Is Unmoved in Court as Judges Pale at Death Films,” NYT, June 9, 1961.

  50. H. R. Trevor-Roper, “‘Eichmann Is Not Unique,’” NYT, September 17, 1961.

  51. Hannah Arendt, Eichmann in Jerusalem: The Banality of Evil (New York: Viking, 1963).

  52. Albert Camus, “Reflections on the Guillotine,” in Resistance, Rebellion and Death, trans. Justin O’Brien (New York: Modern Library, 1960).

  53. Novick, Holocaust in American Life.

  54. James W. L. Park, quoted in Gray and Stanley, Punishment in Search of a Crime, p. 128.

  55. “Bar Owner Wants to Purchase Death Unit,” (Eugene, OR) Register-Guard, January 14, 1965.

  10. THE BATTLE OVER CAPITAL PUNISHMENT

  1. Robert M. Bohm, “American Death Penalty Opinion, 1936–1986: A Critical Examination of the Gallup Polls,” in The Death Penalty in America: Current Research, ed. Robert M. Bohn (Cincinnati, OH: Andersen Publishing, 1991), p. 116, table 8.1.

  2. Margaret Werner Cahalan, Historical Corrections Statistics in the United States, 1850–1984 (Rockville, MD: U.S. Department of Justice, December 1986), p. 18, table 2–7; President’s Commission on Law Enforcement and the Administration of Justice, The Challenge of Crime in a Free Society (New York: Avon Books, 1968), p. 352; “Stirrings on Death Row,” Time, April 21, 1967.

  3. Like earlier gassings, these executions were not pretty either. An Arizona corrections officer and former Korea combat war veteran who witnessed the execution of Pat McGee on March 8, 1963, later reported it was “one of the most vicious and inhumane acts I have ever witnessed… pure agony,” and said he became a heavy drinker to try to forget it. Affidavit of Carl Behrens, April 15, 1992, exhibit 4, vol. 1, Fierro v. Gomez.

  4. “Stirrings on Death Row.”

  5. Ibid.; Chaplain Byron E. Eshelman, quoted in Ian Gray and Moira Stanley, A Punishment in Search of a Crime: Americans Speak Out Against the Death Penalty (New York: Avon Books, 1989), p. 154. For more on Mitchell’s execution, see “Mitchell Executed as Pickets March; Controversy Rages over Death Issue,” Chico Enterprise Record, April 12, 1967; “Mitchell Yells, Dies in Gas Cell,” OT, April 12, 1967; “Killer Dies in Gas Chamber; Suicide Try Fails,” Redwood City Tribune, April 12, 1967; “Killer Dies Shouting; Carried to San Quentin Gas Chamber,” SFE, April 12, 1967; “Pleas Fail—Mitchell Goes to Death,” The Independent, April 12, 1967; “Mitchell Is Executed for Killing Officer,” SB, April 12, 1967; “Police Slayer Dies in Gas Chamber: Execution State’s First Since ’63,” LAT, April 13, 1967; “58 Watch Execution of Policeman’s Killer,” SDU, April 13, 1967; “Execution!” Santa Cruz Sentinel, April 13, 1967; “Mitchell Collapses at the Gas Chamber,” SFC, April 13, 1967; “Police Slayer Dies in Gas Chamber,” LAT, April 13, 1967.

  6. Declaration of Howard Brodie, April 11, 1992, exhibit 8, vol. 1, Fierro v. Gomez. I deeply appreciate Mr. Brodie’s courtesy and cooperation in allowing me to reproduce one of his drawings in this book.

  7. Declaration of Charles Raudenbaugh, April 15, 1992, exhibit 28, vol. 1, Fierro v. Gomez.

  8. James W. L. Park, quoted in Gray and Stanley, Punishment in Search of a Crime, pp. 126–27.

  9. “No. 77,” Time, June 9, 1967.

  10. Gary P. Stiff II, “Executive Log,” Time, June 23, 1967.

  11. Deborah W. Denno, “Getting to Death: Are Executions Constitutional?” Iowa Law Review 82 (1996–97): 321.

  12. Weems v. United States, 217 U.S. 349 (1910).

  13. Margaret J. Radin, “The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause,” University of Pennsylvania Law Review 126 (1978): 997.

  14. Trop v. Dulles, 356 U.S. 86, 101 (1958).

  15. Rudolph v. Alabama, 375 U.S. 889, 890, 891 (1963).

  16. For a discussion of how the legal revolution affected prisoners and vice versa, see Scott Christianson, With Liberty for Some: 500 Years of Imprisonment in America (Boston: Northeastern University Press, 1998), pp. 252–58.

  17. Chaplain Eshelman, in Gray and Stanley, Punishment in Search of a Crime, p. 153.

  18. See Steven C. Tauber, “On Behalf of the Condemned? The Impact of the NAACP Legal Defense Fund on Capital Punishment Decision Making in the U.S. Courts of Appeals,” Political Research Quarterly 51(1) (1998): 191–219.

  19. Maxwell v. Bishop, 385 U.S. 690 (1967); Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme Court (New York: Simon & Schuster, 1979), pp. 205–6, 210.

  20. Anthony Amsterdam, quoted in “The Death Penalty: Cruel and Unusual?” Time, January 24, 1972. For an excellent profile of Amsterdam, see Nadya Labi, “A Man Against the Machine,” NYU Law School Magazine, Autumn 2007.

  21. Michael Meltsner, Cruel and Unusual: The Supreme Court and Capital Punishment (New York: Random House, 1973), pp. 281–82.

  22. Furman v. Georgia, 408 U.S. 238 (1972).

  23. Ibid. (Brennan, J., with the majority).

  24. Ibid. at 404 (Burger, C. J., dissenting).

  25. For a follow-up study on what happened to the inmates who were resentenced, see James W. Marquart and Jonathan R. Sorensen, “A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society from Capital Offenders,” Loyola of Los Angeles Law Review 23(1) (November 1989): 5–28.

  26. Franklin E. Zimring and Gordon Hawkins, “Capital Punishment and the Eighth Amendment: Furman and Gregg in Retrospect,” U.C. Davis Law Review 18(4) (Summer 1985): 927.

  27. Bertram H. Wolfe. Pileup on Death Row (Garden City, NY: Doubleday, 1973), p. 384; Gottschalk, The Prison and the Gallows: The Politics of Mass Incarceration in America (New York: Cambridge University Press, 2006), p. 219.

  28. 1973 R.I. Pub. Laws 280 § 1 (lethal gas). The 1973 law made the death penalty mandatory for anyone who committed murder while confined in an adult correctional institution or state reformatory for women.

  29. “They Shoot Horses, Don’t They,” Time, October 8, 1973.

  30. Gregg v. Georgia, 428 U.S. 153, 168–69 (1976).

  31. Ibid., at 186–87.

  32. See Norman Mailer, The Executioner’s Song (New York: Warner Books, 1980), a masterpiece about the place of Gilmore’s execution in American culture.

  33. Gottschalk, Prison and the Gallows, pp. 224–25.

  34. For a study of the constitutionality of various execution methods and the rise of lethal injection, see Denno, “Getting to Death”; and “When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says about Us,” Ohio State Law Journal 63(1) (2002): 63–260. Also see the following early articles about lethal injection: Scott Christianson, “Needle Executions: The ‘Civilized’ Way to Kill,” Pacific News Service, September 26, 1977; “This Won’t Hurt a Bit,” Mother Jones, January 1978, p. 6; “Execution by Lethal Injection,” Criminal Law Bulletin, January–February 1979, pp. 69–78; and “Killing with Kindness,” Playboy, April 1979, p. 65.

  35. Reverend Clyde Johnston, quoted in Austin American-Statesman, June 12, 1977.

  11. “CRUEL AND UNUSUAL PUNISHMENT”?

  1. Schwarzschild, in Ian Gray and Moira Stanley, A Punishment in Search of a Crime: Americans Speak Out Against the Death Penalty (New York: Avon Books, 1989), 291–98.

  2. See David von Drehle, Among the Lowest of the Dead: The Culture of Death Row (New York: Times Books, 1995).

  3. Ann Salisbury, “‘I’m Not Afraid. I’m Jesse Bishop,’” LAHE, August 23,
1979; Associated Press, “Prison Psychiatrist Counsels Patients at a Gas Chamber,” NYT, May 11, 1978.

  4. Wallace Turner, “Murderer in Casino Executed in Nevada,” NYT, October 23, 1979.

  5. Declaration of Tad Dunbar, exhibit 14, vol. 1, Fierro v. Gomez.

  6. Gray v. Lucas, 463 U.S. 1237 (1983).

  7. Quoted in James Gomez and Daniel Vasquez v. United States District Court for the Northern District of California et al., “On Application to Vacate Stay” (April 21, 1992), Supreme Court of the United States (Docket No. A-767), Justices Stevens and Blackmun dissenting.

  8. E. R. Shipp, “Killer of 3-Year-Old Mississippi Girl Executed after Justices Reject Plea,” NYT, September 3, 1983; Associated Press, “Father Says Execution Won’t Erase His Memories,” NYT, September 3, 1983.

  9. Ivan Solotaroff, The Last Face You’ll Ever See: The Private Life of the American Death Penalty (New York: HarperCollins, 2001), pp. 56–57.

  10. United Press International, “Mississippi’s Gray Steel Chamber Was Built in 1955 to Replace a Traveling Electric Chair and Executioner T. Berry Bruce Has Been on Hand Every Time It Was Used,” September 1, 1983. See also “Eerie, Emotional, Unsettling; For All Who Asked, a Diary of Gray’s Execution,” CLJDN, September 4, 1983; “After Years of Legal Delays, Death Came in Just Minutes,” CLJDN, September 2, 1983; “Eyewitness Account—He Fought It,” CLJDN, September 2, 1983; “Killer of Girl, 3, Dies in Gas Chamber,” SFC, September 2, 1983; “Mississippi Looks for Ways to ‘Refine’ Execution Process,” Chicago Sun-Times, September 3, 1983; “Gray Died Quickly, Officials Maintain,” CLJDN, September 3, 1983; “Gray’s Lawyer Calls Gas Death Cruel,” Post Herald, September 3, 1983; “Prison Official Calls for Reform after Witnessing Grisly Execution,” LADJ, September 5, 1983; United Press International, “Southern Horizons,” September 14, 1983; Solotaroff, Last Face You’ll Ever See.

  11. Affidavit of Dennis N. Balske, April 13, 1992, vol. 1, exhibit 2, Fierro v. Gomez.

  12. Solotaroff, Last Face You’ll Ever See, p. 90.

  13. Affidavit of Daniel Lohwasser, April 15, 1992, vol. 1, exhibit 21, Fierro v. Gomez.

  14. 1979 N.M. Laws 150 §8 (lethal injection); N.M. Stat. Ann. §31–14–11 (Michie 1978). The 1979 law expressly did not apply to offenses committed prior to July 1, 1979. See 1979 N.M. Laws 150 § 10; 1983 Nev. Stat. 601 § 1 (lethal injection); 1983 N.C. Sess. Laws 678 §1 (lethal gas, or lethal injection at the condemned’s election; lethal gas if the condemned fails to choose a method); N.C. Gen. Stat. §15–187 (1983). Quote of Representative Warner from Guy Munger, “The Grim History of N.C. Executions,” RNO Perspective, March 4, 1984. Nev. Rev. Stat. 176 §176.355(1) (1983) (amended 1995). The 1983 law did not expressly indicate retroactivity. See State v. Quinn, 623 P.2d 630 (Or. 1981), in which the Oregon Supreme Court found the state law unconstitutional. Then in 1984 Oregon adopted lethal injection. 1984 Or. Laws 3 §7 (lethal injection); Or. Rev. Stat. §137.473(1) (1985). The 1984 law did not expressly indicate retroactive operation. 1984 Miss. Laws 448 §2 (lethal injection; lethal gas if the condemned’s death sentence was imposed prior to the Act’s effective date); 1984 R.I. Pub. Laws 221 §1 (death penalty abolished); 1984 Wyo. Sess. Laws 54 §1 (lethal injection); Wyo. Stat. Ann. §7–13–904(a) (Michie 1984). The 1984 act did not expressly indicate retroactivity. See 1988 Colo. Sess. Laws 113 §1 (lethal injection); 1988 Mo. Laws p. 985 §A (lethal gas or lethal injection; statute leaves unclear at whose election); Mo. Rev. Stat. §546.720 (1988). The 1988 law also did not expressly indicate retroactivity.

  15. William B. Lindsey, “Zyklon B, Auschwitz, and the Trial of Dr. Bruno Tesch,” Journal of Historical Review 4(3) (1983): 261–303.

  16. Documents regarding this case may be found at www.shamash.org/holocaust/denial/mervsIHR.txt (accessed May 2, 2009).

  17. Mark Weber, “William Lindsey,” Journal of Historical Review 13(3) (1992): 21.

  18. “An Englishman Abroad,” in Gray and Stanley, Punishment in Search of a Crime, pp. 171–86; United Press International, “The Mississippi Executioner,” May 17, 1987; “Johnson Execution Places Media in Newsmaker Role,” The Panolian, May 27, 1987; Christopher Hitchens, “Minority Report,” The Nation, August 29, 1987, p. 150.

  19. “Evans Is Executed at Parchman,” CLJDN, July 8, 1987; Associated Press, “Texas and Mississippi Executions Are Carried out after Pleas Fail,” NYT, July 9, 1987.

  20. Solotaroff, Last Face You’ll Ever See, pp. 169–70.

  21. Affidavit of Robert R. Marshall, April 14, 1992, exhibit 23, vol. 1, Fierro v. Gomez.

  22. United Press International, “Edwards Executed for Convenience Store Murder,” June 21, 1989; Associated Press, “Man Who Called His Trial Unjust Is Executed for Mississippi Killing,” NYT, June 22, 1989. See also “Miss. Robber Executed,” Newsday, June 22, 1989, pp. 16, 18; “Mississippi Store-Clerk Executed,” Facts on File World News Digest, July 14, 1989; Solotaroff, Last Face You’ll Ever See, pp. 178–79.

  23. Martin Garbus, Courting Disaster: The Supreme Court and the Unmaking of American Law (New York: Times Books, 2002), pp. 50–51.

  24. McCleskey v. Kemp. 107 S.Ct. 1756 (1987).

  25. David C. Baldus, George Woodworth, and Charles A. Pulaski Jr., “Monitoring and Evaluating Contemporary Death Sentencing Systems: Lessons from Georgia,” University of California at Davis Law Review 18(4) (Summer 1985): 1401.

  26. McCleskey v. Kemp, at 1765, 1769.

  27. People v. Anderson, 493 P.2d 880, 889 (Cal. 1992) (declaring the state’s death penalty law unconstitutional under the state prohibition against cruel and unusual punishment). The new law enacted was 1992 Cal. Stat. 558 §2 (lethal gas or lethal injection at the condemned’s election; lethal gas if the condemned fails to choose a method); Cal. Penal Code §3604(a–c) (West 1941) (amended 1992). Ariz. Const. Art. XXII, §22 (1992) (lethal injection or lethal gas at the condemned’s election if the condemned was sentenced to death for an offense committed prior to the act’s effective date; lethal injection if the preenactment condemned fails to choose a method); Ariz. Rev. Stat. Ann. §13–704(a–b) (1978) (amended 1993). In Maryland, 1994 Md. Laws 5 §1 (lethal injection); 1994 Md. Laws 5 §2 (lethal injection, or lethal gas at the condemned’s election, if the condemned’s death sentence was imposed prior to the act’s effective date; lethal injection if the preenactment condemned fails to choose a method); Md. Ann. Code, art. 27, §71 (1957) (amended 1994); Md. Ann. Code art. 27 §627 (1957) (amended 1994).

  28. See “Life of Violence Ends Violently,” TC, April 6, 1992; “Witnessing a ‘Medieval’ Execution,” AR, April 5, 1992; “Where and How an Inmate Is Executed,” AR, April 5, 1992; “Don Harding Put to Death, 1st State Execution Since ’63,” AR, April 6, 1992; “Harding’s Death Raises Questions on Gas Chamber,” AR, April 7, 1992; “Harding’s Slow Death Renews Death Penalty Debate,” PG, April 7, 1992; and “Woods Says He Didn’t See Finger Gesture,” PG, April 7, 1992.

  29. Affidavit of Reverend Ralph Fowler, April 15, 1992, exhibit 15, vol. 1, Fierro v. Gomez.

  30. Affidavit of Donna Leone Hamm, April 14, 1992, exhibit 16, vol. 1, Fierro v. Gomez.

  31. “Arizona Executes Killer; State Gripped by Grisly Accounts,” LAT, April 7, 1992.

  32. “Gruesome Death in Gas Chamber Pushes Arizona Towards Injections,” NYT, April 25, 1992; “Switch to Lethal Injection Gets an OK in Arizona,” SFCE, April 25, 1992; “Arizona Likely to Switch from Gas to Injection: ‘Humane’ Measure Gains Support after Harris Execution,” Sunday San Francisco Examiner/Chronicle, April 26, 1992; “Arizona House Approves Switch in Execution Method,” San Francisco Daily Journal, April 27, 1992; “Bad Luck on Gallows Led State to Replace Hanging,” AR, January 5, 1993; “Lethal Injection: Most Relatives of Victims Don’t Want Killers to Suffer,” PG, February 24, 1993.

  33. The text of some of this correspondence is contained in the Fierro v. Gomez exhibit materials.

  34. Daniel B. Vasquez, “Trauma Treatment: Helping Prison Staff Handle the Stress of an Execution,” Corrections Today
55(4) (July 1993): 70, 72.

  35. Gomez v. United States District Court for the Northern District of California, 503 U.S. 653, 655 (1992).

  36. Gomez v. California, 503 U.S. 653, 654 (1992).

  37. See Charles M. Sevilla and Michael Laurence, “Thoughts on the Cause of the Present Discontents: The Death Penalty Case of Robert Alton Harris,” UCLA Law Review 40(2) (1992): 345–79.

  38. Declaration of Craig W. Haney, Ph.D., exhibit 38, vol. 1, Fierro v. Gomez.

  39. Dan Morain, “Witness to the Execution: A Macabre, Surreal Event,” LAT, April 22, 1992; Larry Hatfield, “Witness’ Report: Banal and Macabre,” SFE, April 22, 1992; Richard Polito, “Harris Saga Finally Ends,” Marin Independent Journal, April 22, 1992; Sam Stanton, “Eyewitness: Harris’ Violent Life Ends Quickly,” SB, April 22, 1992; Tamara Welch, “Writer’s Eyewitness Report,” Bakersfield Californian, April 22, 1992; “San Quentin Pre-Execution Activity Log,” two-page execution summary for Robert Harris from the Warden’s Execution Book, California State Archives.

  40. “Video of a California Execution Is Destroyed,” NYT, February 13, 1994. Dutch filmmakers later made a documentary using testimonials by several witnesses to the Harris execution. Procedure 769 was released in 1996 and shown on public TV in Europe and the United States.

  41. Declaration of Craig W. Haney.

  42. See, e.g., Steven G. Calabresi and Gary Lawson, “Equity and Hierarchy: Reflections on the Harris Execution,” Yale Law Journal 102 (1992): 255; Evan Caminker and Erwin Chemerinsky, “The Lawless Execution of Robert Alton Harris,” Yale Law Journal 102 (1992): 225; Judge Stephen Reinhardt, “The Supreme Court, The Death Penalty, and the Harris Case,” Yale Law Journal 102 (1992): 205; Wendy Lesser, Pictures at an Execution: An Inquiry into the Subject of Murder (Cambridge, MA: Harvard University Press, 1993), pp. 24–187; Deborah W. Denno, “Getting to Death: Are Executions Constitutional?” Iowa Law Review 82 (1996–97): 319.

  43. Affidavit of Paul V. Benko, April 14, 1992, exhibit 7, vol. 1, Fierro v. Gomez.