Reagan’s remarks were picked up by Time magazine in October 1973 and widely circulated among conservatives.29 They not only buttressed his credentials as a conservative supporter of capital punishment, thereby possibly aiding his political ambitions, but they also offered the pro–death penalty movement a useful suggestion for a new stratagem to employ in their revised death penalty statutes. His comments appeared just as Israel was responding to being attacked in the Yom Kippur War.
After Furman, the pro–death penalty campaign continued to turn public opinion back in favor of executions. In 1976, in considering Gregg v. Georgia, the U.S. Supreme Court revisited the death penalty, upholding Georgia’s new capital-sentencing procedures when it concluded that Georgia officials had sufficiently reduced the problem of arbitrary and capricious imposition of death associated with earlier statutes. The plurality opinion specifically addressed “the basic contention that the punishment of death for the crime of murder is, under all circumstances, ‘cruel and unusual’ in violation of the Eighth and Fourteen Amendments,” and concluded “the punishment of death does not invariably violate the Constitution.”30 In its plurality opinion, the Court held, “Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe.”31
Given the rising tide of political agitation in favor of the death penalty, the decision left no doubt that executions would be resumed. Soon after the new Gregg ruling, what had been a nearly ten-year national voluntary moratorium on executions ended with the firing-squad killing of Gary Gilmore in Utah on January 17, 1977. To call Gilmore a “volunteer” for execution was an understatement: he had waged a vocal campaign demanding to be put to death. 32 Like the breaking of a taboo, the moratorium was smashed. The huge backlog of prisoners facing execution on death row quickly overwhelmed the resources of the LDF, the American Civil Liberties Union, and other capital defenders, prompting fears of a “blood bath.”33
Amid the ensuing turmoil, several states contemplated whether to retain their existing method of execution or to switch from the electric chair or lethal gas to the latest alternative: lethal injection.34 Texas and Oklahoma legislators vied to become the first to adopt the new method. Oklahoma’s governor David Boren signed it into law on May 11, 1977, with Texas following the very next day. “I would like to see this [legal execution] carried out in a nice clean room, something that doesn’t look like a prison,” the Texas Department of Corrections Protestant chaplain was quoted as saying in June 1977. “I hesitate to use the word pleasant, but it would be just like going in, laying down and going to sleep.”35
As legal analysts debated how to craft or challenge new death-penalty statutes to meet constitutional muster, the realities of death by lethal gas would finally begin to come into sharper focus.
CHAPTER 11
“CRUEL AND UNUSUAL PUNISHMENT”?
By the late 1970s American public opinion was swinging ever more strongly in favor of the death penalty. Although the public’s appetite for gas chambers had diminished, eleven states—Arizona, California, Colorado, Maryland, Mississippi, Missouri, Nevada, New Mexico (until 1978), North Carolina, Rhode Island, and Wyoming—still clung to that method of capital punishment. But the legal battle over the constitutionality of lethal gas executions, and the rise of the new method of lethal injection, were just beginning to take hold.
Henry Schwarzschild, the director of the American Civil Liberties Union Capital Punishment Project—and a German émigré who had worked both in U.S. counterintelligence during World War II and the antiwar movement during the Vietnam War—served as one of the key national players in the anti–death penalty movement in the late ’70s. Schwarzschild, like the NAACP Legal Defense Fund (LDF), was based in New York and familiar with all the latest developments involving the death penalty throughout the nation and beyond. He was a keen political observer and shrewd strategist who spent much of his time dealing with lawyers, scholars, and members of the news media.
Schwarzschild once told an interviewer, “American self-esteem rode high from the end of World War II to the Vietnam War. It was the century of America. We were the richest, most powerful, most industrialized, most sophisticated, most effective country in the world. That was very much the sense that America had of itself.” But the long Vietnam War proved extremely divisive and resulted in a tremendous blow to American self-esteem. As the war ended, and Watergate further shook many Americans’ faith in their political institutions, the culture became “dominated by a kind of macho reaction,” according to Schwarzschild. Toughness became the “universal solvent to every problem that America face[d] abroad or at home,” and Americans exhibited an overwhelming desire to demonstrate to themselves and everyone else that they were a tough people. They wanted to show that they were hard on crime. They wanted long sentences and harsh prisons. Even though it had been shown that the death penalty did not deter crime or make citizens safer, and although other nations increasingly regarded executions as barbaric, Americans increasingly supported capital punishment.1 In retrospect, Schwarzschild’s analysis appears to have been very astute.
Once legislatures had passed new death penalty measures that were upheld by the courts, and the nation’s ten-year “voluntary moratorium” on executions had ended, the only remaining question was how the resumption of killings would unfold. At first, the most vulnerable targets for execution appeared to be prisoners who refused to fight for their lives and rejected legal efforts on their behalf.
John Spenkelink of Florida, however, fiercely contested his electrocution, with urgent assistance from the LDF and others. Beginning in 1977 his case became a cause célèbre, and his portrait was published on the cover of the New York Times Magazine with the headline “Will He Be the First?” He actually became the second person executed in the United States since Gregg when on May 25, 1979, he was put to death in the electric chair. His gruesome execution required three separate jolts of electricity, until death was finally pronounced after five excruciating minutes.2
After Spenkelink’s execution, attention shifted to Jesse Walter Bishop, who was facing execution by lethal gas in Nevada. Bishop, a white, forty-six-year-old drug addict, was awaiting his execution on Carson City’s death row for fatally shooting a newlywed while robbing a Las Vegas casino two years earlier. Bishop had pleaded guilty and scorned appeals, preferring instead to accept his fate. As his execution date approached, Bishop took refuge in psychiatric treatment, as blond nurses in white dresses brought him plenty of tranquilizers. The Maryland man whose son Bishop had murdered said, “I don’t think killing him will help my son or my feelings…. I just can’t see where it’s going to do any good.” But Bishop was determined to die.3 Bishop got his wish on October 22, 1979, becoming the first person to be executed by lethal gas since Luis Monge in Colorado in 1967.4