But as the state rushed to make ready for the scheduled execution of Robert Alton Harris, all their planning could not fully prepare them for the trials to come, not the least of which were unprecedented challenges to the constitutionality of their famous gas chamber. A coalition of abolitionist lawyers began planning a major class action lawsuit in 1990. On April 12, 1992, three California prisoners sentenced to death—David Fierro, Robert Harris, and Alejandro Gilbert Ruiz—filed a complaint in federal district court in San Francisco alleging violation of their federal civil rights. They were represented by a legal team led by Michael Laurence of the American Civil Liberties Union of Northern California and Warren George and Carolyn L. Reid of McCutchen, Doyle, Brown & Enersen of Los Angeles. The plaintiffs sought to have the method of execution by lethal gas declared unconstitutional and requested a temporary restraining order to prevent the next scheduled execution, involving Robert Alton Harris. On April 18, district court Judge Marilyn Hall Patel granted a temporary restraining order and enjoined the state of California from executing Harris in the gas chamber.
On April 21, however, the U.S. Supreme Court subsequently vacated three stays of Harris’s execution. Justice John Paul Stevens, with whom Justice Harry Blackmun joined, dissented, saying, “In light of all that we know today about the extreme and unnecessary pain inflicted by execution by cyanide gas, and in light of the availability of more humane and less violent methods of execution, Harris’ claim has merit…. To my mind, the gas chamber is nothing more than a chemical garrotte.”35 However, the U.S. Supreme Court had barred judges of the Ninth Circuit Court of Appeals from entering any more stays of execution for Harris.36
The facts of the case seemed damning. In 1978 Robert and Daniel Harris allegedly kidnapped two sixteen-year-old boys, took them to an isolated area near San Diego, and shot them to death in cold blood. After he murdered the teens, Robert Harris ate the hamburgers they had left behind, then took their car to use in robbing a bank. The pair was arrested, and when Robert Harris confessed to the shootings he was sentenced to death. By 1992 he had been on death row for more than thirteen years.37 His execution was set to proceed as planned on April 21.
During the lead-up to the execution, a nationally known psychologist and lawyer, Craig W. Haney, conducted an intensive psychological study of Robert Harris while he was on death row. Haney documented his subject’s history of abuse, beginning with Harris’s birth three months prematurely after his father kicked his pregnant mother in the stomach during a drunken rage; he also suffered from fetal alcohol syndrome and cognitive disabilities. Haney discovered that Harris’s fears had greatly increased as a result of the news of the horrific execution in Arizona, and he was afraid of how much he would suffer. Harris came to form a bond with the psychologist, and he asked Haney to witness his execution. When the time finally arrived, Haney reluctantly appeared as requested. He found himself in “a ghastly display case, a huge aquarium-like structure, brightly lit with windows in front and around the sides. Because the chamber is painted green,” he wrote, “the reflected light gave a faint green color to the room where the witnesses stood.”38 Somebody said it was the same color as a dollar bill.
To everyone’s horror, Harris’s executioners went through the whole ritual, until the moment when the gas was about to be released, when suddenly the procedure was stopped due to a judge’s stay. The process was resumed two hours later. Witnesses noted that in that time Harris had aged ten years.39 By order of Judge Patel the execution was videotaped for the lawsuit—the only known film made documenting an American execution. It was never shown in court, however, and the tape was destroyed in January 1994 after lawyers for the state agreed not to offer new testimony of witnesses to executions in the gas chamber if the suit was retried.40
Based on his experience as a witness to the Harris execution, Haney declared:
Lethal gas draws out the process of suffering and it does so in the course of a calculated, deliberate spectacle. The public invasiveness of this horrible process is made all the more unbearable by the prolonged view of a human being struggling in agony and in terror…. I cannot shake free from my memory of this spectacle, an organized violation of human nature’s most basic prohibition—a prohibition more profound than the one against killing: to stand by and wait and watch and do nothing while another person writhes and shudders in deadly pain. Execution by lethal gas requires both victim and witnesses to experience not just death but dying.41
Other legal commentators also condemned the suffering Harris had been forced to endure and the courts’ contribution to it.42
Meanwhile, investigators working for the plaintiffs in Fierro v. Gomez had obtained affidavits from persons like Haney who had witnessed gas executions, participated as staff, or studied cyanide and related issues. They found a neighbor who lived five houses away from San Quentin who declared he was “deeply offended and outraged” that the state continued to carry out gas chamber executions in his community. The researchers also took statements from several Holocaust survivors who recounted their personal experiences with gas-chamber executions during World War II.
Paul V. Benko, Ph.D., was a death camp survivor who witnessed its horrors up close. He later moved to the United States and tried to move on with his life. While studying at the University of California at Berkeley for his Ph.D. in plant pathology, Benko was assigned to kill insects in a jar full of cyanide gas. He said the sight of the insects struggling in pain reminded him of the millions of Jews, Gypsies, and political and social prisoners gassed by the Nazis. Benko became a biology professor at Sonoma State University, where he helped found its Center for the Study of the Holocaust. When he learned about Robert Harris’s scheduled gas execution, he said, “it immediately rekindled my memories of the death camps. There is no way to compare the millions of innocent Holocaust victims with the convicted men and women on death row, but the… use of the gas chamber by the State of California is an atrocity.”43 (Benko died in 1998.)
Another Holocaust survivor, Gloria H. Lyon, declared, “As a person who saw the daily horror of mass extermination by gas, I know that execution by gas is torture and it can never be anything less. The torture begins with one’s awareness of the way in which his or her life would be taken, and intensifies with one’s knowledge of how low and painful a method of execution gas is.”44
Deputy Attorney General Gerald Engler, on the other hand, argued that using such evidence in this case “demeans the memory of those who died” in the Holocaust “and the spirit of those who survived, through comparison of the unforgivable slaughter of innocent victims with the lawful execution of convicted murderers.” He also said the similarities of the execution methods had not been established. But the statements provided by the Holocaust survivors proved extremely pertinent and powerful.45