California’s gas chamber had become an agonizing crucible for prison staff as well. James W.L. Park, a clinical psychologist, was one of those who participated in Mitchell’s execution. “I find that people who function fairly calmly in tight situations have a little tape recorder in their heads that records all this stuff,” he said, “then they have to work through it later.” After the Mitchell ordeal, Park’s first reaction was that once the lever went forward and the gas was released, nobody could stop an execution, underscoring the fact that the whole action was “irrevocable… and whatever potential that person may have had was never realized. Any possibility of redemption is gone.” Park said his second observation was how “task-oriented” he and the other participants became. “I wasn’t concerned with taking Mitchell’s life,” he told an interviewer, “I was concerned with, ‘Was that phone on the wall going to ring? Was I going to have to answer some judge’s or governor’s question?’ And so I was totally focused on the task—not on the fact that a man was being killed.”8
Mitchell’s execution set off waves of revulsion and exultation among death penalty opponents and supporters. Details were reported worldwide. A month and a half after Mitchell’s execution, Colorado carried out a gassing of its own. Republican governor John Arthur Love, a former navy pilot and federal prosecutor, refused to grant clemency. A forty-eight-year-old Puerto Rican car salesman, Luis J. Monge, was about to enter the history books. He stood convicted of killing his pregnant wife and three of the couple’s ten children after his wife had discovered he’d had an incestuous relationship with one of their daughters. In Denver, demonstrators wearing black armbands paraded in front of the statehouse, while outside the prison in Cañon City an encampment of picketers protested the impending execution.
Unlike Mitchell, Monge, who had fired his attorneys, seemed calm and cooperative. After learning that he would not receive a third stay of execution, he handed over his possessions, including a painting of the crucifixion and his pet parakeet, to two of his sons, and he signed papers giving his corneas to a blind boy in Buena Vista. Then, after a short walk to the changing room on the third floor, he stripped to his shorts as directed and walked into the gas chamber.9
A Denver reporter who witnessed what happened next later wrote, “The public likes to believe that unconsciousness is almost instantaneous, but the facts belie this.” Journalist Gary Stiff noted that the official execution log concluded that unconsciousness came more than five minutes after the cyanide splashed down into the sulfuric acid. “And to those of us who watched,” he said, “this five-minute interlude seemed interminable. Even after unconsciousness is declared officially, the prisoner’s body continues to fight for life. He coughs and groans. The lips make little pouting motions resembling the motions made by a goldfish in his bowl. The head strains backward and then slowly sinks down to the chest. And, in Monge’s case, the arms, although tightly bound to the chair, strained at the straps, and the hands clawed tortuously, as if the prisoner were struggling for air. Any account that leads readers to believe that death comes quickly, painlessly, almost pleasantly, is less than accurate.”10
Colorado’s execution of Luis Monge in June of 1967 would turn out to be the last execution in the United States for a decade, and the last gas-chamber execution for twelve years. This gassing, and the others preceding it, as well as the thousands of capital punishments carried out by hanging and electrocution, were about to become a legal relic, at least for a while. Now increased attention was being focused on what the U.S. Supreme Court would rule about the constitutionality of the death penalty.
Until recently, the constitutionality of the death penalty had not been in serious doubt, nor had any of the legal execution methods, including hanging, electrocution, firing squad, and lethal gas. No court had ever found any method to violate the ban against cruel and unusual punishment that the framers of the Constitution had added to the Bill of Rights, and the U.S. Supreme Court had never reviewed evidence concerning whether any method of execution violated the Eighth Amendment.11 As early as 1910 the Court had recognized that the Eighth Amendment’s prohibitions weren’t limited to only those punishments that had been in effect at the time the Bill of Rights was adopted.12 What was or was not “cruel and unusual” remained legally vague.13 In 1958, however, the Supreme Court decided in Trop v. Dulles (356 U.S. 86) that the Eighth Amendment contained an “evolving standard of decency that marked the progress of a maturing society.”14 Although Trop was not a death penalty case, abolitionists argued that the United States had progressed to the point at which its “standard of decency” should no longer tolerate the death penalty. Then, in 1963, Justice Arthur Goldberg, joined by Justices William O. Douglas and William J. Brennan Jr., indicated a willingness to consider the legality of the death penalty on several grounds, at least for rape.15 This signal had contributed to the de facto moratorium on capital punishment that had generally held at the time of the Mitchell and Monge executions and their aftermath.
Under the Warren Court revolution of the 1960s, the Supreme Court radically transformed the rights of criminal defendants. Virtually all of the prisoners sitting on death row at that time, who had been convicted under the old rules, suddenly found themselves with a legal leg to stand on. Their capital convictions were open to attack because the evidence against them had been illegally obtained, because they had been subjected to the “third degree” or questioned without a lawyer; because nobody had advised them of their legal rights; or because their access to the courts had been obstructed or they had been denied counsel because they were poor—matters that hadn’t troubled the courts before, but which now were suddenly deemed unconstitutional.16 Even if the death penalty itself was not found unconstitutional, the criminal justice practices that had resulted in the convictions were themselves subject to constitutional challenge. Looking back on his more than twenty years as death row chaplain at San Quentin, Reverend Eshelman sadly exclaimed, “It is numbing to realize that all of the 501 persons executed to this point in history by the state of California would have grounds for retrial in light of new decisions brought forth by the courts.”17 In other words, the Court had not only “handcuffed the police,” but it had also detained the executioner.
The filing of a large number of lawsuits in the late 1960s contributed to a voluntary moratorium on executions from June 2, 1967, to 1972, as the Supreme Court wrestled with the issues. No state attempted to conduct an execution during this period. The legal moratorium was largely the work of the NAACP Legal Defense Fund (LDF), led by Stanford University law professor Anthony Amsterdam, who mounted a full-scale attack on the death penalty that succeeded in blocking all executions for five years, creating a death-row logjam. The LDF, founded in 1940, had handled a number of landmark racial discrimination cases and worked closely with the Reverend Martin Luther King Jr. and other civil rights activists.18 Amsterdam, a descendant of a long line of rabbis and former law clerk to Associate Justice Felix Frankfurter, had drafted briefs in several important criminal cases, including Miranda v. Arizona, and soon established himself as the most brilliant legal strategist in capital punishment. In the fall of 1967 he successfully argued the case of Maxwell v. Bishop before the Eighth Circuit, leading the Supreme Court to strike down the Arkansas death penalty and require a separate postconviction hearing on sentencing.19 In that case, the LDF utilized America’s most respected criminologist, Marvin E. Wolfgang of the University of Pennsylvania, to present data showing the impact of racial discrimination.