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Last revised: March 10, 1998

WELCOME TO HELL

MEPHISTOLPHELEAN VOLITION

by Steven King Ainsworth

In 1903, Tom Horn, the legendary western gunman, was executed in Wyoming for the killing of a teenage shepherd. To eliminate the role of executioner, Wyoming had built a hydraulic gallows that was triggered by the weight of the condemned stepping upon the trap door in the gallows platform. (1)

The predilection of killing states to have the condemned take an active role in their own execution continues today with the passage of numerous laws granting the condemned a choice of method of execution!

It is still undecided in California, at this writing, if California's condemned will be able to choose between execution by lethal injection or execution by gas. A choice I refer to as the:

"Mephistophelean Volition" (2)

Oh, how cruel and diabolical we can be in our efforts to judicially murder individuals we have deemed beyond the pale!

In the Spring of 1992, just prior to California's stepping into the position of being a killer state with the gas chamber execution of Robert Alton Harris after a quarter of a century hiatus, a civil rights action suit was filed on behalf of all condemned inmates in California challenging the constitutionality of execution by lethal gas. (3)

In California, executions in the gas chamber are performed by lowering one pound of sodium cyanide pellets wrapped in cheese cloth into a mixture of sulfuric acid and distilled water. The chemical reaction will produce hydrogen cyanide gas (the same gas, known by its trade name Zyklun B; used by the Nazi's to exterminate over a million men, women and children at Auschwitz-Buchenwald.) which the condemned will be poisoned by.

Unfortunately, after some questionable rulings and conflicts between the U.S. Ninth Circuit Court of Appeal and the United States Supreme Court, (4), the following bit of macabre occurred: "At 3:49 AM, Harris walked into the gas chamber. Two minutes later, as the sulfuric acid was being pumped into the vat below Harris, Judge Pregerson telephoned the gas chamber, informing prison officials of a stay of execution. Harris, of course, could not understand the reason for delay. At 3:58 AM, the sulfuric acid was drained from the vat. At 4:01 AM, Harris was taken from the gas chamber. While Harris had been strapped in the chamber, the California State Attorney General's office had sought an order from the United States Supreme Court vacating the stay of execution. In a one paragraph motion to the Supreme Court, the Attorney General's office had typed: "Mr. Harris is presently in the gas chamber." That sentence was crossed out by hand. The Attorney General's facsimile machine stamped the time of the correspondence to the Supreme Court as 4:06 AM, minutes after Harris had been removed from the gas chamber. (5)

At 5:45 AM, the stay was lifted by a 7-2 vote in the U.S. Supreme Court and Robert Alton Harris was rushed into the gas chamber and executed.

The last-ditch attempt to save Harris was unsuccessful, but the class action lawsuit challenging the method of execution survived, and as a result the California Legislature quickly passed a law, which the Governor immediately signed, giving condemned human beings the option of choosing the method of his or her execution between lethal gas or lethal injection. If the condemned refuses to choose, they would be executed by lethal gas. (6)

I questioned the validity of this latest legislative move in a letter to the San Francisco Daily Journal in early January of 1993:

"So the good people of California offer death by injection thinking it to be a more humane method, or was it to avoid the civil suit aimed at the gas chamber? Is it to make the whole process easier? To make killing less cruel?"

"Having been in the prison system most of my adult life and seeing first-hand some of the ineptness of these civil servants, I can well imagine the mess they will make of death by injection." (7)

This latter observation is aptly illustrated in the recent execution of a man in Illinois by lethal injection: "As he was wheeled into the chamber, he made no eye contact. Almost his last sight of this world was an exit sign over the door. (At 12:04 AM the order was given to push the two buttons which were to release the lethal 'juice' into the veins.) As the poison began to work - a deadly cocktail of sodium pentathol, pancuronium bromide and potassium chloride - there was a reflex jerk of his head, followed by a loud snort. For three minutes, his puggish, wide open eyes bulged in their sockets. His flabby belly heaved in and out."

"Then, as if in a surreal pantomime, an official closed the theater-like curtain."

"What had happened, it seems, is that the Illinois State Death Machine had malfunctioned. A technician had to replace the tubing because some of the poison had 'gelled'. When the curtains reopened, John had turned purple and was still twitching. Instead of taking ten minutes to execute him, it took nearly twenty. He was finally pronounced dead at 12:58 AM."(8)

With both of these executions in mind, many men and women on Death Rows across the nation in states where an option of method is proffered, no doubt ponder this Mephistopelean Volition and further agonize over their fate.

It is human nature to fight death, especially a premeditated one, a death well-planned in advance, a death not fought in a physical sense, but one that is contested in a judicial arena.

Even the matter of choice has been contested. To date, most courts have adopted this view:

"Individual reactions to the various methods of execution and the right to choose vary greatly. In some cases, a person may be so appalled by the thought of physically hanging by the neck (shot in the heart, choking on lethal gas or strapped into an electric chair and fried )(9) that the option of death by lethal injection is welcome. To others, the idea of lying strapped upon a gurney awaiting the lethal poison to seep into one's veins at an unknown time may be equally abhorrent. These individuals embrace the idea of choosing the method of their death as a way to avoid their own private terrors. But to a third type of individual, the choice itself is cruel. As they await the day of their death, they are faced not with the terror of death itself, but also with the terror of making the wrong choice on how to die. These individuals do not embrace the idea of choice; they dread its requirement that they take an active part in their own demise." (10)

Judicial resolution of this matter may well be beyond a court's ability. A court, not being actually faced with a fatal choice itself, must speculate whether removing the choice is to impose a cruel method of execution or retaining the choice imposes cruel psychological pressure on the condemned, or if in fact requiring an individual to actively participate in his or her own killing is in itself cruel and unusual.

The "Catch 22" is, how do you present evidence to support any of these contentions? The evidence can only come from the condemned. California provides that the choice must be made in writing not more than 10 days after being served with a notification of an execution date being set, (11) which means from 20 to 60 days from actual execution. Psychological evidence can be gathered prior to that on the matter of being faced with choice and whether or not to choose at all. After the choice is made, psychological evidence can be gathered as to the impact of the choice upon the condemned.

However, many obstacles must be overcome. First and foremost is the condemned's willingness to talk about what obviously is a most private matter at a most inopportune time.

A court would have to order the state to allow access to the condemned by independent psychologists to evaluate the issue at a time when prison officials are most concerned with security.

Examination at this point on a mater that may well prohibit an execution would be contrary to the goals of the State and their own psychiatric evaluations that are prerequisite to an execution.

Some evidence might be gathered in the years prior to a condemned human being actually being faced with the choice. But such evidence may be tainted with beliefs that judicial relief will be granted long before a choice has to be made, that a stay of execution is imminent or that actual innocence is at issue and the condemned refuses to contemplate any outcome other than total exoneration.

What is the answer? It is my view that giving the condemned human being a choice of how he or she wishes to be exterminated is cruel. Requiring a condemned person to actively participate in his or her own state-sanctioned killing is cruel and unusual.

Finally, if the state cannot make up its mind how it wishes to extinguish the lives of those it has condemned to death, then it should not be doing the killing at all.

Epilogue:

"Fierro v. Gomez" is still in litigation. U.S. District Judge Marilyn Hall Patel did rule that the gas chamber was indeed cruel and unusual punishment and the U.S. Ninth Circuit Court of Appeal agreed with her. However, California pursued its right to appeal to the U.S. Supreme Court and in the Summer of 1996 that court ordered the Ninth Circuit Court to review the matter in light of another new California law.

At the time I wrote "Mephistophelean Volition" the law stipulated if you did not choose you were to be executed by lethal gas. The majority of the condemned who were faced with a choice before the Patel ruling refused to choose and would have been gassed had their execution dates not been stayed

Faced with the Patel ruling and the prospect of having to go through many execution scenarios like that of Robert Alton Harris, California passed legislation in 1996 that will now allow the State to use lethal injection as the method of execution should the condemned refuse to choose. This law goes into effect January 1, 1997 and is the law spoken of in the U.S. Supreme Court's order to the Ninth Circuit Court of Appeal.

Talk about mixed signals! If California prefers lethal injection, why have they wasted the taxpayers' money in the further litigation of Fierro v. Gomez? If the Ninth Circuit Court of Appeals found the gas chamber to be unconstitutional, why would it reconsider that finding because now in 1997 the condemned would have to choose specifically the now unconstitutional gas chamber as their method of execution? If, choice is now the determinate factor between dying by unconstitutional or constitutional means - I choose death by natural causes!

REFERENCE LIST

(1) This gallows still exists and is in storage at the old Wyoming State Penitentiary at Rawlins, Wyoming.
(2) "Mephistophelean Volition:, S.K. Ainsworth, Journal of Prisoners on Prisons, Vol. 6:1 (1995); Pub. By Univ. Of Ottawa, Canada.
(3) "Fierro v. Gomez", 790 F. Supp. 966 (N.D.CAL.1992); 77 F.3d. 301 (9th Cir, 1996); U.S.Sup Ct. (Cert Granted) #95-1830 (1995).
(4) "Gomex v. United States District Court", 112 S. Ct. 1652; "Gomez v. U.S. Dist. Ct.", No. 92-70237, 1992; U.S.App. Lexus 7735; "Vasquez v. Harris", 112 S.Ct. 1713 (1992).
(5) "Thoughts on the Cause of the Present Discontents: The Death Penalty Case of Robert Alton Harris", Charles Sevilla and Michael Lawrence, CACJ Forum, Vol. 20, No. 1 (1993), fn. 130.
(6) California Penal Code Sec. 3604 (1992)
(7) "Already An Ordinary Execution", San Francisco Daily Journal, Wed. 25 Aug. 1993, Vol. 99 No. 164.
(8) Quoting William Cash, British journalist, "Eyewitness Account", May, 1994, Joliet, Illinois.
(9) Author's parentheses.
(10) "State v. Rupe", 683 P.2d 571 (Wash. 1984).
(11) California Code of Regulations, Title XV, Section 3349 (A,B,C,D).

You may address comments to:
Steven King Ainsworth
C-13201
San Quentin Prison
San Quentin, CA 94974