Scott Christianson, a former New York state criminal justice official, is author of "The Last Gasp: The Rise and Fall of the American Gas Chamber" and "Fatal Airs: The Deadly History and Apocalyptic Future of Lethal Gases that Threaten Our World."

Viewpoints: DAs push for return of the gas chamber

Published: Sunday, Apr. 28, 2013 - 12:00 am | Page 5E
Last Modified: Sunday, Apr. 28, 2013 - 7:27 am

State lawmakers are scheduled to conduct a public hearing Tuesday on legislation to overhaul California's dysfunctional system for carrying out legal executions. Much of the proposal is old news, but there is one as-yet unnoticed feature that merits close attention.

California's district attorneys want to bring back the gas chamber. Really. While the plan stands little chance of passage, it reveals just how desperate and out of touch the pro-capital punishment forces have become.

Since 1967, despite spending many hundreds of millions of dollars on the death penalty, California has put to death a grand total of 13 people – two by a procedure of lethal gas that was struck down by the federal courts in the 1990s and the last 11 by a protocol of lethal injection that remains stymied in the courts. Not surprisingly, public opinion has been turning against capital punishment: Last November 48 percent of the electorate voted for Proposition 34, which would have ended the practice.

But now, the pro-death forces are trying to patch up some of the holes in their broken down apparatus. Senate Bill 779 is sponsored by the California District Attorneys Association – players who should know better.

Most of their scheme has been pushed before – the effort, for example, to limit capital appeals and move the location of death row. But now they have added provisions to further secretize death-penalty information, exempt the drugs used in executions from regulatory controls and hide the involvement of medical personnel in state-sponsored killing.

All of those measures raise their own issues. But the proposal to resurrect the gas chamber is chilling.

Instead of sticking with only hydrogen cyanide, the DAs also want to possibly substitute "non-toxic" gases that would displace oxygen, thereby causing asphyxiation.

Interestingly, the specific gases supporters cite – helium or nitrogen – are gaining more attention as a byproduct in natural gas extraction, or fracking. But neither has ever been tried in a legal execution.

These facts should give pause to any reasonable person concerned about the constitutional ban against "cruel and unusual punishment." But the DAs do not seem to be thinking straight on this issue.

The use of nitrogen for execution purposes was first suggested in a brief article that appeared in a conservative magazine in September 1995. In it, Stuart A. Creque, a Bay Area freelance writer, called nitrogen asphyxiation a "perfect method of execution," saying nitrogen is "cheap and universally available" material that requires no special safety precautions, and claiming that it would cause painless death without any trauma or damage to human organs.

In 2011 this method was further recommended by Kent Scheidegger, the legal director of the Sacramento-based Criminal Justice Legal Foundation, a conservative public interest law organization that often collaborates with prosecutors to champion the most punitive responses to crime.

In his blog, Scheidegger stated, "The problem with the gas chamber was not the method but the choice of gas." He advocated the use of helium or nitrogen.

"I do not need reports or studies to know that hypoxia is painless," he wrote. All that is necessary, he said, "is retrofit the gas chamber to flush it with helium or nitrogen."

How many appellate judges, scientists or engineers would agree with either of those facile assertions? California law prohibits gassing for euthanasia of dogs or cats. Veterinarians considered it too cruel. But using it on humans would be OK?

Given all of the law and science standing in the way, it probably would take the courts 10 or more years to decide such a question – a long and very expensive wait for Californians.

The latest proposal would require a condemned prisoner to choose the agent of his own death. Will it be gas or lethal injection?

Suicide by helium inhalation recently has become the most widely promoted method of euthanasia for humans, and ethicists may question if the DAs are not unwittingly influencing mentally unbalanced persons to give it a try. These and a host of other scenarios raise troubling questions that get to standards of human dignity.

The history of capital punishment is littered with one bad idea after another, hatched for "perfecting executions." California's district attorneys might better focus on ways to improve the quality of justice.

Scott Christianson, a former New York state criminal justice official, is author of "The Last Gasp: The Rise and Fall of the American Gas Chamber" and "Fatal Airs: The Deadly History and Apocalyptic Future of Lethal Gases that Threaten Our World."

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