Tucson Opinion: Arizona's gas chamber still haunts us

Like a zombie, Arizona’s gas chamber continues to stalk us, even though decades ago Arizonans voted overwhelmingly to banish its use as inhumane.

Our state already has the dubious distinction of being the last in the Union to use this cruel execution method when it gassed death row inmate Walter LaGrand in 1999. Tragically, the state is getting ready to use the gas chamber again at the prison in Florence.

How did we arrive at this head-scratching situation? I will try to explain, for I lived that history as LaGrand’s court-appointed attorney.

Walter and his half-brother Karl, both teenagers, were sentenced to death after fatally stabbing a bank manager and grievously wounding a teller during a 1982 failed bank robbery in the town of Marana. Their sensational crimes and quick capture were front page news. Upon conviction they were condemned to the gas chamber, at the time the state’s only execution method.

In 1992, while the LaGrands appealed, Arizona executed Donald Harding using lethal gas. Observers watched as Harding literally choked and convulsed to death. He took 11 minutes to die.

Responding to public revulsion, the Legislature quickly referred to the ballot a constitutional amendment to switch from poison gas to lethal injection. Arizona’s Voter Guide presented arguments for and against the proposed amendment. The argument favoring change stated, “A civilized society should not inflict unnecessary suffering on any person, even those persons who are condemned to die.” The amendment passed with 77% voter support.

The amendment curiously included a provision whose rationale the Voter Guide did not explain. It provided that inmates already sentenced to the gas chamber under prior law would have a choice of execution by either lethal injection or lethal gas. The likely explanation is that the amendment’s authors wanted to avoid resentencing hearings. As a result, they grandfathered an inhumane punishment.

Walter’s execution was set for March 3, 1999. As his execution date approached, he confronted the new law’s macabre “choice.” He was convinced that death by state sanctioned asphyxiation was a barbarous punishment that should be abolished. Under existing case law, the only way Walter had standing to make that Eighth Amendment constitutional challenge was to “choose” lethal gas, with the hope of striking it down. Walter determined to take on the gas chamber.

Late-stage death penalty litigation is a pressured process. Shortly before Walter’s execution date the Ninth Circuit Court of Appeals agreed that his death by lethal gas would be unconstitutionally cruel and enjoined its use.

Late on March 3, 1999, a majority of the U.S. Supreme Court reversed the Ninth Circuit, and Walter was executed. In a breathtaking “Catch-22” the Supreme Court held that by electing lethal gas Walter waived his constitutional claim. Dissenting from the majority’s rush to judgment, Justice Stevens argued that “whether a capital defendant may consent to be executed by an unacceptably tortuous method of execution is by no means clear.”

A Star reporter covered Walter’s prolonged, painful death. As the cyanide gas enveloped him, Walter began to cough and gag. He strained against the straps that held him to the chamber’s chair, coughing repeatedly. Two minutes passed until he slumped over, apparently unconscious. Eighteen minutes passed before his heart stopped and he was pronounced dead. His execution brought international condemnation, and rightly so.

Because the Supreme Court avoided addressing the gas chamber’s obvious cruelty on the merits, 17 inmates on Arizona’s death row now share Walter’s fate of choosing between lethal gas and lethal injection. The decision’s defenders may argue that by challenging the gas chamber Walter just took a foolish risk and lost.

I see it differently. The Supreme Court’s decision to reverse the Ninth Circuit’s sensible determination that execution by poison gas is cruel and unusual deprived Arizona of an opportunity to move even incrementally toward a less inhumane system of capital punishment. As a civilized society, that lost opportunity should trouble us all.