Once again, the Nevada Supreme Court is deciding whether the State of Nevada may execute a convicted killer in a way never precisely used anywhere in the world. Exactly a century ago, the very same court decided the very same issue and held–no problem. Except that the resulting execution by the planet’s first use of lethal gas for capital punishment was botched and drew wide scorn.
Will history repeat itself?
Earlier this week the court heard oral arguments in Las Vegas on a lawsuit by Zane Floyd, 47. He was sentenced to death by lethal injection more than two decades ago for killing four persons in a Las Vegas supermarket in 1999. It took jurors barely two hours to convict him of all counts, which included a prior sexual assault. The quick decision was attributable to Floyd’s recorded confession played in open court along with store video of the killings.
In 2002 the Nevada Supreme Court upheld Floyd’s conviction and death sentence. But subsequent lawsuits and appeals on the state and federal level have blocked imposition of the sentence.
His lawyers now seek to bar the lethal injection of a precise mixture of chemicals never before used in a execution anywhere. They claim the process will create prolonged suffering that violates the U.S. Constitution’s Eight Amendment prohibition against “cruel and unusual punishment.” The lawyers instead have suggested a firing squad, saying death would be instantaneous.
The specific point before the court is whether the Nevada legislature properly delegated to the head of the prison system complete authority to determine the lethal injection execution protocol, including what kind of drugs to use. Prison officials have had to scramble developing their deadly brew because of difficulty in legally obtaining a supply of all the needed drugs before their expiration dates.
The rest of this post mostly repeats word-for-word what I wrote in this space in May 2018 involving another impending Las Vegas unique drug-combo execution case. There was a surprise ending, recounted in the update at the end.
May 31, 2018
Scott Dozier sits on death row in Nevada awaiting execution for the 2002 murder in a Las Vegas Strip motel of a fellow drug dealer, who was then sawed into multiple pieces, stuffed (mostly) into a suitcase and discarded. Dozier, 47, who also has been convicted of murder in Arizona, acknowledges guilt and says he wants to die. The State of Nevada is quite willing to accommodate him.
But for the prescribed method of lethal injection, the Nevada Department of Corrections has proposed using a three-drug combination that has never been used before, in Nevada or elsewhere. Even though Dozier now says he doesn’t much care how he dies, the case has been bouncing around Nevada courts. One issue is whether the specific mix–the paralytic drug cisatracurium, the anti-anxiety drug diazepam and the pain reliever fentanyl–violates the Eighth Amendment prohibition against “cruel and unusual punishment,” if not for Dozier, then for future condemned inmates.
As someone New To Las Vegas, I think it can be fairly debated whether a thinly populated, minimal government desert state like Nevada has the expertise and competence to pull off a humane execution using an untested process, in this case the specific drug combo. But astonishingly, this wouldn’t be the first time that Nevada has ventured down this Brave New World path.
You see, Nevada was the first jurisdiction in the entire world to execute a condemned prisoner in a gas chamber. That was nearly a century ago in 1924. The state somewhat botched the first attempt. There are lessons here.
That case was of Gee Jon, 29. Born in China in 1895, he had emigrated in his teens to San Francisco’s Chinatown, where he eventually became a member of the Hip Sing Tong gang, whose product line was narcotics and bootleg liquor. Its principal competitor was the Bing Kong Tong gang. Both outfits sought to spread their influence across the country. Murdering rivals was one way to do that.
That is apparently what brought Gee and Hughie Sing, a 19-year-old accomplice born and raised in Carson City, to Mina, a now ex-railroad town on what is now U.S. 95 some 280 miles northwest of Las Vegas. The victim was immigrant Tom Quong Kee, a 74-year-old laundry operator and a Bing Kong Tong member. Gee spoke little English, and Sing seemed to function partly as Gee’s interpreter.
On the night of August 27, 1921, Gee and Sing went to Tom’s cabin. Sing, who previously had lived in Tom’s home, knocked on the rear door. Tom, holding a candle, answered in his pajamas, whereupon Gee shot him twice through the heart with a .38 Colt revolver. Gee and Sing were arrested a few days later 160 miles away in Reno. Sing quickly confessed and implicated Gee. (I am drawing much of this section from a 1975 article in the Nevada Historical Society Quarterly, “Example for the Nation: Nevada’s Execution of Gee Jon,” by Loren B. Chan.)
Barely three months later, a jury in nearby Hawthorne convicted the pair of first degree murder after a week-long trial. District Judge J. Emmett Walsh sentenced them to death. But owning to his age and the fact he wasn’t the trigger man, Sing eventually saw his sentence commuted to life imprisonment by the Nevada Board of Pardons. (After serving 17 years, he was released on parole in 1938 and left Nevada for California.) It may or may not be significant that the trial and sentencing took place amid what one scholar called “a wave of anti-immigrant and racist hysteria that gripped the country at that time.”
As it happened, earlier that year the Nevada legislature, at the urging of state Deputy Attorney General Frank Kern, had passed what was officially called the “Humane Execution Bill.” It replaced hanging or firing squad (the choice was up to the inmate) with execution by lethal gas. Gas had been of interest as a means of capital punishment thanks to the writings of New York City psychiatrist Allan McLean Hamilton (a grandson, by the way, of Alexander Hamilton), who argued it would be a more humane process.
The bill cleared each legislative chamber with only one dissenting vote. Although opposed to capital punishment, Gov. Emmet Boyle, a liberal Democrat and mining engineer, signed the bill into law, perhaps figuring the courts would strike it down. But in January 1923 the Nevada Supreme Court upheld the law in State v. Gee Jon. The unanimous ruling cited “the old biblical law of ‘an eye for an eye and a tooth for a tooth’” and complimented the Legislature for “inflicting the death penalty in the most humane manner known to modern science.”
Nevada’s new procedure drew wide notice, much of it unfavorable. Editorialized The New York Times, “The electric chair is not modern enough for the Nevadans, apparently, or else it displeases them in some way, and their law calls for the use of putting condemned murderers to death in what is called in euphemistic terms a ‘lethal chamber’–a room that can be made airtight and into which at will can be introduced through hidden conduits a suffocating gas.”
Hamilton suggested that a gas such as carbon monoxide could be pumped into a prisoner’s airtight cell while he slept, leading to a painless death. Nevada prison authorities instead chose hydrocyanic gas (cyanide gas), which was used to kill pests in California citrus groves. The warden of the Nevada State Prison in Carson City, Denver S. Dickerson (a former Nevada governor), sent an aide to California to buy and haul back over icy mountain roads to Nevada tanks of liquid cyanide, which would be turned into gas by an “autofumer” the state purchased for $700 (about $10,000 in 2018 dollars).
But Dickerson realized that gassing Gee in his cell while asleep without warning, while maybe more humane, was not practical. So according to Fatal Airs: The Deadly History and Apocalyptic Future of Lethal Gases That Threaten Our World, by Scott Christianson, the state converted an tiny old stand-alone granite prison barber shop into a gas chamber at the Nevada State Prison. Four prison guards quit, fearful of leaking gas. Tests were conducted on animals, including what one Chinese-language press account described as a “stray white large cat.” Federal authorities in Washington, D.C. asked for an after-action report.
On the cloudy, humid morning of February 8, 1924, the 5-foot-5, 129-pound Gee was strapped into the chamber’s chair. He wept, but stopped after a prison guard shouted at him, “Brace up!” All but Gee departed, and the chamber was sealed. With 30 witnesses including reporters watching through windows, the gassing started. Predictions were that Gee would die within two minutes.
But he didn’t! Thanks to a malfunctioning heater, the temperature inside the chamber was a cool 52 degrees, causing the deadly liquid to collect on the floor rather than immediately turn into deadly gas, reducing the killing power. Reporters with watches noted that it was a good 10 minutes before Gee finally was motionless.
It took two hours of venting before authorities could open the chamber, remove Gee’s body and take it to the prison hospital. Doctors confirmed he was dead but, fearful of releasing toxic gas, declined to conduct an autopsy. Gee was buried in the prison cemetery on a nearby hill.
Public opinion varied widely. Nevada media generally thought the process was humane enough. Out-of-state press was not nearly so kind. “One hundred years from now Nevada will be referred to as a heathen commonwealth controlled by savages with only the outward symbols of civilization,” declared the San Jose Mercury Herald in California.
Warden Dickerson later wrote that the gas chamber execution was painless to Gee but not efficient, due to expense and the considerable potential for problems. Still, Nevada conducted another 32 gas-chamber executions until the state officially switched to lethal injection in 1983. Nine other states, including California, also used gas chambers. No states do now. The Nevada State Prison was closed in 2012.
Dozier’s execution by lethal injection would take place at the Ely State Prison, 240 miles north of Las Vegas. That’s on the other side of the state from where Gee committed his murder and was executed for it 97 years ago. It remains to be seen if Dozier’s departure will go any smoother.