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By Menachem Wecker 8-08-2017

“Ah it’s hopeless. Hopeless. They’ll send me to the chair,” says Estelle Winwood’s character in the 1966 Perry Mason episode “The Case of the Final Fade-Out.” She puts her hands dramatically to her temples, but Mason is unfazed. “That’s a line from a period play, Miss Glover,” he says. “We have the gas chamber in California.”

More than 50 years later, California still lists lethal gas as a legal execution means. So do five other states: Arizona, Mississippi, Missouri, Oklahoma, and Wyoming, although Mississippi and Oklahoma, which use nitrogen hypoxia, don’t use that term. (More on that below). I learned this as I searched on my phone standing in front of John Singer Sargent’s monumental 1919 painting “Gassed,” which is on display in the New-York Historical Society’s exhibition “W​orld War I Beyond the Trenches” (through Sept. 3).

gassed.jpg

John Singer Sargent (1856–1925). Gassed, 1919. Oil on canvas, 90 ½ × 240 in.. Courtesy of IWM (Imperial War Museums), London. Photo: ©IWM Imperial War Museums, Art.IWM ART 1460

Considering the line of painted soldiers, their eyes bandaged from the blinding effects of mustard gas, it was difficult to understand how gas could still be on the books as a legal execution method in the United States just three-quarters of a century after Auschwitz.

To some, like Walter Reich, a professor at George Washington University and a former director of the U.S. Holocaust Memorial Museum, the symbolism isn’t bothersome.

“The main issue about capital punishment is capital punishment,” Reich said. “The fact that the Germans used it during the Holocaust doesn’t, by itself, make it more inhumane than another means of capital punishment. The Germans also used bullets, and they used lethal injections.”

But Tracy Snell, a statistician at the U.S. Bureau of Justice Statistics, said states have been retiring the methods of “lethal gas” and gas chambers, and some are adopting nitrogen hypoxia. The latter, she understands to be, is more like going to sleep.

“My sense is that the gas chamber is sort of like electrocution. States were moving away from it because it was kind of not pleasant,” she said. “It’s a painful process. It’s painful to watch.”

Here is the current legal landscape when it comes to lethal gas for executions:

  1. Per title 13 section 757 of Arizona’s revised statutes, defendants sentenced to death prior to Nov. 23, 1992, may choose either lethal injection or lethal gas if they give 20 days notice prior to the execution date. If the defendant doesn’t do so, the defendant will receive a lethal injection, it adds.
  2. California, in section 3604 of its penal code, prescribes lethal injection unless the person under death sentence elects lethal gas, in writing to the warden within 10 days from the execution warrant. If a new execution date is set, the inmate again can elect lethal gas or lethal injection.
  3. Chapter 456, section 720 of Missouri’s statutes authorizes lethal injection and lethal gas as methods of execution; it doesn’t specify who gets to decide which is used.
  4. An amendment to section 99-19-51 of the Mississippi Code of 1972 recognizes the legality of carrying executions out with nitrogen hypoxia if lethal injection “is held unconstitutional ... or is otherwise unavailable.” This method “seals the condemned in an airtight chamber pumped full of nitrogen gas, causing death by a lack of oxygen,” reported Salon in 2014.
  5. There is a similar rule on the books in Oklahoma, where title 22 section 1014 calls for lethal injection, and in the event that such a punishment method is held unconstitutional by “an appellate court of competent jurisdiction or is otherwise unavailable,” then execution will be carried out by nitrogen hypoxia. (If that too is found unconstitutional or is unavailable, the next preferred method is electrocution, and then firing squad, it adds.)
  6. And in Wyoming, lethal gas is authorized, and in the event it is held unconstitutional, “the sentence of death shall be executed by the administration of lethal gas,” according to title 7 chapter 13 article 9.

Between 1977 until 2011, 11 people were executed using lethal gas: two in Arizona, two in California, four in Mississippi, one in Nevada, and two in North Carolina, according to a 2014 Department of Justice report. And since Snell joined the BJS in 2009, she can’t remember a single execution via lethal gas. She noted that the case Fierro vs. Terhune (1998) has challenged the use of lethal gas in California.

“Technically, it’s still in their statute,” she said. “But it effectively invalidated California’s use of lethal gas.”

Art Can Foster Empathy

As legal experts and activists have responded to capital punishment in the courts, artists have also had a lot to say about executions. Still, scholars are divided on what insights exactly cultural works can shed on the conversation about capital punishment.

Medieval and early-modern art, including depictions of people being drawn and quartered or lynched, “can teach us that the central purpose of capital punishment was a maximally public depiction of the perpetrator suffering the most painful and humiliating death possible,” said Louise Mirrer, president and CEO of N-YHS, which is showing the Sargent painting.

Today, with the dominant U.S. view among those who support capital punishment being that executions should be private and minimally painful, art no longer plays much of a role in defining the ethical conversation around the death penalty, according to Mirrer.

But Virginia Raguin, distinguished professor of humanities and head of the art history division at College of the Holy Cross in Worcester, Mass., said that paintings like “Gassed” — and Francisco Goya’s “The 3rd of May, 1808” and Édouard Manet’s depictions of the execution of Emperor Maximilian — can foster empathy among viewers.

In the era of the 24/7 news cycle, it’s easy for people to divorce themselves from reality. “How can you have your soul moved if you are inundated with images?” Raguin asked. But artwork can jolt viewers out of that fog and build empathy. That can apply to capital punishment as well — a U.S. policy that Raguin says places the nation in the worst company of evil countries worldwide.

“It seems astonishing that you can have this and not have people say, ‘Oh my god!’”

A Medieval Religious Tradition

The mid-13th century represented a turning point in empathy-fostering art, according to Raguin, a medievalist. Prior to 1200, about 90 percent of depictions of crucifixions showed a Christ triumphant, and although the works didn’t hide the violence of his execution, they prioritized theology over Christ’s humanity.

“Instead of his arms sagging on the cross, they’re straight out,” she said. “There may be a spurt of red coming from his side that an angel collects.” But that blood is depicted to convey the theology of the Eucharist, not to show gore.

By 1250, though, a seismic shift had occurred as Europe’s population increased and cities grew, and 90 percent of crucifixions stressed that Christ bled for all people, died for them, and that viewers must be sorry, according to Raguin. Medieval crucifixions weren’t anti-capital punishment, of course, but modern viewers can adapt that medieval notion of empathizing with the crucified Christ.

When modern viewers scan things quickly, they have a tendency to quickly pass over the objects and move onto something new. Standing in front of a masterpiece finished hundreds of years ago — or in Sargent’s case, nearly a century ago — can impress upon viewers that they are themselves unfinished works in progress, according to Raguin. And therein empathy can begin.

But others are concerned about overstating the ethical aspects of artwork.

“I’m just skeptical about ‘lessons’ that are supposed to be inherent in art,” said Tom Freudenheim, former assistant secretary for museums at the Smithsonian and a former director of several museums. “Goya and Manet paintings are amazing, but not because they teach us moral or ethical lessons.”

Freudenheim recently came across a beheading of a martyr depicted in a medieval manuscript and realized that imagery was common in the visual language of the Middle Ages, however shocking it is today.

“When we encounter it in ISIS or al-Qaeda videos, it seems beyond the pale, and we can’t watch it or don’t want to,” he said. “Yet brutality was once a commonplace part of visual history.”

It may take the bluntness of the pain and suffering in Sargent’s “Gassed” to jolt viewers, who are uncomfortable with its brutality, to think in new and different ways about other timely instances of violence.

Menachem Wecker is a freelance reporter based in Washington, D.C. He holds a graduate degree in art history from George Washington University.

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