After ten minutes, the warden opened the door. “Ladies and gentlemen,” he announced, “the judgment of the courts has been carried out. Time of death, 2:19 A.M.”62
CHAPTER 12
THE LAST GASP
The last gasp of the American gas chamber came in 1999 in Florence, Arizona. Ironically, and fittingly some might think, the case involved the United States and Germany.
Two brothers, Walter LaGrand, born in 1962, and Karl LaGrand, born in 1963, were German nationals who had moved to the United States with their mother in 1965. In 1982 both were sentenced for stabbing to death a bank manager during a botched robbery.1 After the case went all the way to the U.S. Supreme Court, which denied review, the LaGrands filed petitions for writs of habeas corpus. Arizona law gave the condemned the right to choose between lethal injection or lethal gas as their method of execution. Both brothers chose gas in the hope that the courts would find the method unconstitutional.
When this tactic failed, Karl accepted a last-minute offer of a lethal injection, and he was executed on February 24, 1999.2 Walter, however, said he would prefer lethal gas as a means of protesting the death penalty, even though it was said to be more painful.
The possibility of executing a German in the gas chamber evoked potent images. One of the claims Walter LaGrand raised in his habeas petition was that execution by lethal gas constituted cruel and unusual punishment under the Eighth Amendment to the Constitution. But the U.S. District Court found the claim to be procedurally defaulted because LaGrand had failed to raise it either on direct appeal or in his petition for state postconviction relief.
Less than an hour before he was supposed to be put to death in the gas chamber, however, Walter’s execution was delayed when the Ninth Circuit Court of Appeals found that death by lethal gas was “cruel and unusual punishment.” As part of its order, the Ninth Circuit stayed his execution and enjoined Arizona from executing him “or anyone similarly situated, by means of lethal gas.”3
Like his brother, Walter had filed a petition for writ of habeas corpus challenging lethal gas as a cruel and unusual form of execution. On March 3, 1999, the U.S. Supreme Court granted Arizona’s application to lift the Ninth Circuit’s order enjoining the use of lethal gas, granted certiorari, and summarily reversed the prior decision without oral argument.
In an 8–1 per curiam opinion, the Court rejected Walter LaGrand’s argument of ineffective assistance of counsel and held that, by his actions, he had waived his claim that execution by lethal gas is unconstitutional. According to the Court, “On March 1, 1999, Governor Hull of Arizona offered Walter LaGrand an opportunity to rescind this decision and select lethal injection as his method of execution. Walter LaGrand, again, insisted that he desired to be executed by lethal gas. By declaring his method of execution, picking lethal gas over the state’s default form of execution—lethal injection—Walter LaGrand has waived any objection he might have to it.” The Court also found that his claims were procedurally defaulted because he hadn’t challenged the unconstitutionality of lethal gas quickly enough. According to the Court’s tortured legal logic:
At the time of Walter LaGrand’s direct appeal, there was sufficient debate about the constitutionality of lethal gas executions that Walter LaGrand cannot show cause for his failure to raise this claim. Arguments concerning the constitutionality of lethal gas have existed since its introduction as a method of execution in Nevada in 1921. See H. Bedau, The Death Penalty in America 16 (1982). In the period immediately prior to Walter LaGrand’s direct appeal, a number of states were reconsidering the use of execution by lethal gas, see Gray v. Lucas, 710 F.2d 1048, 1059–61 (CA5 1983) (discussing evidence presented by the defendant and changes in Nevada’s and North Carolina’s methods of execution), and two United States Supreme Court Justices had expressed their views that this method of execution was unconstitutional, see Gray v. Lucas, 463 U. S 1237, 1240–44 (1983) (Marshall, J., joined by Brennan, J., dissenting from denial of certiorari). In addition, lethal gas executions have been documented since 1937, when San Quentin introduced it as an execution method, and studies of the effect of execution by lethal gas date back to the 1950s. See Bedau, supra, at 16.
Justice John Paul Stevens dissented, saying, “The answer to the question whether a capital defendant may consent to be executed by an unacceptably torturous method of execution is by no means clear. I would not decide such an important question without full briefing and argument.”4
By then the Walter LaGrand case had become the subject of an international furor over American capital punishment. Germany, which did not have the death penalty, asked Arizona’s Governor Jane Dee Hull to halt the execution, but she refused, saying the death penalty was popular in her state. She rejected appeals from German chancellor Gerhard Schröder and Foreign Minister Joschka Fischer. Germany asked the world court to intervene, and German officials contended that Arizona had failed to advise the LaGrand brothers of their right to consular assistance at their trials, as state officials were required to do under the Vienna Convention on Consular Relations.
Ultimately the case was heard by the International Court of Justice in The Hague as Case Concerning the Vienna Convention on Consular Relations (Germany v. United States of America), General List No. 104 (March 3, 1999). Although the international court had no enforcement powers, Judge Christopher Weeramantry of Sri Lanka urged the United States government to use “all the measures at its disposal” to prevent the executions.5 President Bill Clinton turned a blind eye. The U.S. Department of State conveyed the wishes of the International Court of Justice to Governor Hull of Arizona without comment, and the Arizona clemency board recommended she grant a stay on the basis of the pending international case. But Governor Hull ignored the recommendation.
On March 3, 1999, Walter LaGrand, a prisoner who was both German and American, became the next person in history to be put to death in an American gas chamber. Minutes before he was killed, he apologized for his actions. He also said, “To all my loved ones, I hope they find peace. To all of you here today, I forgive you and I hope I can be forgiven in my next life.”
Eighteen minutes after the cyanide pellets were dropped, he was pronounced dead.6 LaGrand turned out to be the last person to be executed by lethal gas in the twentieth century. The lethal chamber had taken its final victim.
Afterward, many Germans accused the United States of “barbarism” and flouting international law, and ultimately the International Criminal Court ruled in favor of Germany and against the United States.7 The roles from Nuremberg had been reversed, and now it was the Americans who were found guilty.
Even after the end of the twentieth century, the U.S. Supreme Court of the United States still would not bring itself to address the question whether execution in the gas chamber amounted to cruel and unusual punishment in violation of the Constitution.8 No amount of evidence could convince it otherwise.
But in the court of world opinion, the gas chamber represented one of modernity’s worst crimes; it was an instrument of torture that first had been disguised as a humane alternative to pain and suffering. What originally had seemed to be such a noble and practical idea turned out to be something else entirely.