Cruel and Unusual Punishment

VIVIAN BERGER

August 25, 1992|By VIVIAN BERGER

As horrific reports of ''ethnic cleansing,'' sealed transports and even concentration camps emanate from Bosnia-Herzegovina, shocked Westerners have drawn the obvious analogy to Nazi atrocities. Yet a stark parallel to the Holocaust exists in the United States, in California. That is the use of cyanide gas -- chemically the same as the Zyklon B of Auschwitz infamy -- to execute prisoners.

No civilized advocate of capital punishment would support its infliction by burning at the stake, drawing-and-quartering, crucifixion or breaking on the wheel. Why? Because these methods are torturous. We Americans like to think that remnants of ancient barbarism can be found only in faraway places. In the case of the gas chamber, that belief is illusory.

For this reason, the ACLU has brought a lawsuit claiming that execution by gas amounts to cruel and unusual punishment and should therefore be enjoined as a violation of the Eighth Amendment.

An affidavit by a World War II death camp survivor, filed in connection with the action, states the argument in a nutshell. Although ''innocent Holocaust victims can never be compared with convicted murderers,'' she rightly notes, ''as a person who saw the daily horrors of mass extermination by gas, I know that execution by gas is torture and it can never be anything less.''

Eyewitness accounts and medical testimony too gory to quote in detail prove her claim beyond all question. In essence, a form of asphyxiation by suffocation or strangulation, the gas chamber has been called ''nothing more than a chemical garrote'' by Supreme Court Justice John Paul Stevens.

Physically, the struggle for oxygen causes intense pain like that of a massive heart attack as well as symptoms such as vomiting and convulsions; conscious suffering lasts for minutes.

Psychologically, the anticipation of this agony itself produces extreme anguish or even madness. After his final appeal for clemency was rejected, Aaron Mitchell, the last prisoner before Robert Harris put to death in California, slashed his wrists and claimed to be Jesus Christ.

The recent gassings of Harris in California and of Don Harding in Arizona have brought the legal and policy issues surrounding this practice to the attention of the court and the public. Californians should not continue their tacit endorsement of torture chambers while the ACLU litigation proceeds. In that lawsuit, state residents are represented (whether they want to be or not) by Atty. Gen. Daniel Lungren, who defends the status quo.

Fortunately, there is a better forum in which to resolve the present dispute with speed and certainty and in a manner supported by a large majority, which can make its wishes known.

Gov. Pete Wilson has a bill on his desk that would substitute lethal injection for cyanide gas if the condemned inmate so elects. A poll taken by the Los Angeles Times a few days after the Harris execution found that California respondents preferred the injection method to gas by a margin of more than 5-to-1 (63 percent to 12 percent).

Notably, this result reflects the universal moral judgment of voters in the modern era. Of the 20 states to adopt new modes of execution since the Supreme Court upheld the constitutionality of capital punishment in July 1976, not one has chosen gas. A decade ago, 10 states mandated its use. Now, none do but California, Arizona and Maryland. In the wake of Harding's gruesome death, Arizona's legislature is also considering proposals to switch from cyanide gas to lethal injection. (Maryland has not conducted an execution in years.)

In 1937, when California instituted the gas chamber, this method of inflicting death was deemed the most humane alternative. Science -- and history -- have taught us otherwise.

Admittedly, opponents of the death penalty will not be content merely to sanitize rather than repeal capital punishment. But for the moment, both advocates and abolitionists should make common cause to do away with our shameful domestic Holocaust reminder. The gas chamber belongs in museums, not in 20th-Century prisons.

Vivian Berger, a law professor and vice dean at Columbia University, is a general counsel to the ACLU, but the views in this commentary are her own.

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