1967: Luis Monge, America’s last pre-Furman execution

4 comments June 2nd, 2012 Headsman

Forty-five years ago today, Luis Monge was gassed in Colorado for murder — the last execution in the United States before a decade-long lull in capital punishment in the U.S.

Monge, an insurance salesman with no prior history of violence, had a hearty brood of 10 children, but when his wife found out he was having an incestuous relationship with one of them, Monge bludgeoned the wife to death, and killed three of the young children just for good measure.

Monge pleaded insanity, and then when doctors found him sane enough to stand trial, just pleaded guilty — eventually dropping all appeals and asking to be hanged in public at the Denver City and County Building.

Despite the culprit’s preferences, his execution was stayed for all of 1966 while Colorado voters weighed a referendum on continuing the death penalty. They ultimately voted 3-1 in favor. (See this detailed history of the death penalty in the Columbine State.)

Even though Monge himself embraced execution willingly, his seven remaining children (also the children of, and siblings of, his victims: surely a difficult position) still fought for clemency, and shared Monge’s last meal with him.

Had Monge maintained his appeals, he — like four other Colorado inmates whose death dates were also on hold in 1966 — would likely have made it into the nationwide unofficial moratorium on executions that settled in while courts sorted out death penalty standards in the late 1960s and early-to-mid 1970s.* That period led into 1972’s landmark Supreme Court decision Furman v. Georgia, invalidating all existing death sentences in the country and sparing men much more nefarious than Luis Monge.

Instead, this date’s principal went to his death clutching a black rosary (and allegedly, and one must suspect apocryphally, asking if the gas would trouble his asthma)** and became a nigh-forgotten denouement from a closed chapter of death penalty jurisprudence, and the last man put to death in America until Gary Gilmore almost ten years later.

Apart from his milestone status vis-a-vis capital punishment nationwide, Monge is also the last person to die in the Colorado gas chamber.


The gas chamber that killed Luis Monge, now retired to Colorado’s Museum of Prisons. (cc) image from Cowtools, who also has a photo of Monge’s bullet-riddled grave marker.

In fact, Monge is currently still the second-last put to death in Colorado, period. It would be fully 30 years before Colorado executed again — in 1997, by lethal injection. As of this writing, it hasn’t done so again since.

* If Monge had avoided execution, the “last pre-Furman execution” milestone would be held instead by California’s Aaron Mitchell, the only man executed on the authority of California governor (and future U.S. president) Ronald Reagan.

** The man who pulled the lever for Monge’s execution, Canon City penitentiary warden Wayne Patterson, was not enthusiastic about the job. He describes his experience here, saying that “Monge was a guilt-ridden man who was nearly suicidal before he was executed. Those were the [kind of] guys who were executed — not the people I thought belonged in the chamber.”

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Entry Filed under: 20th Century,Businessmen,Capital Punishment,Colorado,Common Criminals,Crime,Death Penalty,Diminished Capacity,Disfavored Minorities,Execution,Gassed,History,Murder,Racial and Ethnic Minorities,Sex,USA,Volunteers

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1991: Warren McCleskey

8 comments September 25th, 2011 Headsman

Twenty years ago today, Warren McCleskey died in Georgia’s electric chair for the murder of a police officer.

Yet the “question reverberates: Did Warren McCleskey deserve the chair? For the question to outlive him is a damning commentary on capital punishment in the United States.”

The most reverberating commentary on this case was the 1987 Supreme Court decision McCleskey v. Kemp — a landmark 5-4 ruling that still shapes the way judges handle purported racial discrimination in the criminal justice system.

McCleskey (the decision, not the man) “marked the end of an era in death penalty jurisprudence … reject[ing] the last major challenge to the death penalty in America” from the generation of legal tinkering reaching back to the 1960s.

McCleskey v. Kemp was decided on April 22, 1987, at which time just 70 humans had been executed since the “modern” era of capital punishment began in the 1970s. (Today, the count is well beyond 1,200.)

The victims attributed to those 70 were 83% white (77 of 93),* even though blacks and whites are murder victims in roughly equal numbers — suggesting on its face that white victims are treated as disproportionately “valuable” by prosecutors, juries, and/or judges. This was, prospectively, the case with Warren McCleskey himself, an African American who in the course of an armed robbery had gunned down (or maybe not: see below) a white off-duty policeman.

McCleskey’s appellate team marshaled a statistical study by Iowa Prof. David Baldus indicating that black murderers (to a small extent) and killers of white victims (to a greater extent) were indeed more likely to receive a death sentence in Georgia, even when controlling for dozens of other variables. “According to this model,” wrote Justice Lewis Powell for the majority, “black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.”

Though it accepted evidence of a discriminatory pattern,** the high court nevertheless ruled that McCleskey was not entitled to appellate relief unless he could demonstrate that that it was at work in his specific case.

And with some reason: the import of granting constitutional relief to a claim of “endemic racism in the system” would open a Pandora’s box of appeals from America’s burgeoning carceral state.

McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system … if we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.

Let justice be done though the heavens fall?† Not on our dime, buddy.

This reasoning too backtracked from equal protection concerns that had helped lead a similarly bare 5-4 majority to strike down then-existing capital statutes 15 years before in an appeal originating from the same state — Furman v. Georgia. That old regime had then been replaced with a death penalty system supposedly capable of minimizing arbitrariness. McCleskey served notice that justices wouldn’t be going out of their way to hunt arbitrariness any time soon.

The Court’s remaining liberal lions — it still had such a thing in 1987 — dissented furiously from McCleskey. William Brennan replied to the majority:

Warren McCleskey’s evidence confronts us with the subtle and persistent influence of the past. His message is a disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present.

He also found “fear that recognition of McCleskey’s claim would open the door to widespread challenges … seems to suggest a fear of too much justice.”

mccleskey_presentation_314

Brennan was on the losing side of this judgment in a larger historical sense as well — at least, the brief span of history to unfold since Warren McCleskey sat in the electric chair.

McCleskey author Lewis Powell retired a few weeks after issuing it, and not long thereafter expressed regret for the McCleskey decision.‡ Relentless death penalty foes Brennan and Thurgood Marshall would hang up the spurs within a few years. (The circus Senate hearing to place Clarence Thomas in Thurgood Marshall’s seat was ongoing when Warren McCleskey finally died.)

But the deciding vote in McCleskey was cast by freshman Reagan-appointed justice Antonin Scalia, and he’s still going strong.

Scalia was then the Court’s emerging conservative paladin, though he was so new to the Court that McCleskey’s litigators hoped he might be amenable to their suit as a swing vote. Far from it: after Thurgood Marshall’s death in the early 1990s, his donated papers were found to contain a Scalia memo that rubbished the McCleskey majority’s mere consideration of the Baldus study.

I disagree with the argument that the inferences that can be drawn from the Baldus study are weakened by the fact that each jury and each trial is unique, or by the large number of variables at issue. And I do not share the view, implicit in [Powell’s draft opinion], that an effect of racial factors upon sentencing, if it could be shown by sufficiently strong statistical evidence, would require reversal.

Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial [ones], is real, acknowledged by the [cases] of this court and ineradicable, I cannot honestly say that all I need is more proof.

Shorter Scalia: racism happens, so what?§ (Ultimately, Scalia opted not to file a separate opinion explicitly making this case; he just signed on to the majority opinion.)

As squishy regret-prone jurists have left Scalia’s Court since, and hard-right ideologues joined it, 1987’s militant reactionary is now one Rick Perry victory away from being the highest court’s median vote. Now that’s moving the Overton Window.

As one might imagine, death penalty jurisprudence at One First Street NE in these latter days has become correspondingly rougher — and the problems raised by McCleskey have scarcely abated.


Although the McCleskey case is what our day’s principal is best known for, he was also caught up in one of the more everyday — but not the less disreputable — toils of the system: the phony jailhouse informant. Very late in the appeals process, McCleskey’s lawyers were finally able to show that the fellow-prisoner who testified that McCleskey admitted the shooting to him was in fact a police plant operating on a quid pro quo to reduce his own sentence. (It’s amazing how often defendants spontaneously confess to these guys; the Troy Davis case which climaxed last week also featured a jailhouse snitch.) Somehow, prosecutors forgot all along to mention that arrangement even when directly asked.

The Supremes ruled, Kafkaesquely, that this issue was procedurally out of order because McCleskey hadn’t raised it earlier, neatly ignoring that the reason he hadn’t raised it was that prosecutors were actively concealing the fact. That’s the subject of the other SCOTUS case under our man’s name, McCleskey v. Zant.

(At issue was whether McCleskey was himself the triggerman. Since he was part of the robbery gang, he was legally on the hook for capital murder whether or not he personally fired the shot; but, his death sentence turned in reality on the jury’s belief that McCleskey was the individual killer — a detail supplied by the suspect police informant. None of McCleskey’s confederates faced execution.)

The final drama this date was a “chaotic” mess of last-minute legal maneuverings, with McCleskey strapped into the chair at one point, then interrupted from his last statement to be returned to his cell, then finally hauled back to the lethal device after an early-morning telephone poll of Supreme Court justices.

* Execution demographic counts via the Death Penalty Information Center’s executions database.

** While the McCleskey court accepted Prof. Baldus’s statistical interpretations even while rejecting their constitutional import, a vigorous pro-death penalty case is made here against the reading that the modern American death penalty is racially discriminatory to any great extent.

† This Latin phrase — fiat justitia ruat caelum — is actually engraved above the sitting justices at the Georgia Supreme Court.

‡ The regret was about more than Warren McCleskey; Powell’s biographer described a complete change of heart in the June 23, 1994 New York Times:

when the retired Justice Powell said he had changed his mind about the McCleskey case, I thought he meant that he would now accept the [Baldus] statistical argument.

“No,” he replied, “I would vote the other way in any capital case … I have come to think that capital punishment should be abolished.” …

Justice Powell’s experience taught him that the death penalty cannot be decently administered. As actually enforced, capital punishment brings the law itself into disrepute.

§ See Dennis Dorin, “Far Right of the Mainstream: Racism, Rights, and Remedies from the Perspective of Justice Antonin Scalia’s McCleskey Memorandum,” Mercer Law Review, 1994.

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Entry Filed under: 20th Century,Capital Punishment,Common Criminals,Crime,Death Penalty,Disfavored Minorities,Electrocuted,Execution,Georgia,History,Murder,Notable Jurisprudence,Racial and Ethnic Minorities,USA,Wrongful Executions

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1938: Anthony Chebatoris, in death penalty-free Michigan

5 comments July 8th, 2011 Andrew Gustafson

This post was contributed by Andrew Gustafson, a writer and cartographer based in Brooklyn, NY. Andrew’s work can be found on his website, and he regularly blogs about New York City history and culture for Urban Oyster Tours.

On this date in 1938, Anthony Chebatoris was hanged at the federal prison in Milan, Michigan, becoming the only person executed in Michigan since it gained statehood in 1837.

Chebatoris and an accomplice, Jack Gracy, rolled into Midland, Michigan on September 29, 1937, with the intention to rob the Chemical State Bank. They never did get their hands on the cash, and only one of them would leave the town alive, though with a proverbial noose dangling from his neck. The two men, armed with a pistol and a sawed-off shotgun, entered the bank and approached the bank manager, Clarence Macomber, with guns drawn. In the ensuing scuffle, Chebatoris shot Macomber and another bank employee, Paul Bywater. Upon hearing the shots, Frank Hardy, a dentist whose office was next to the bank, grabbed the loaded deer rifle he kept handy and went to the window to see what the commotion was about. As Chebatoris and Gacy abandoned the botched robbery empty-handed, Hardy began firing at the fleeing robbers, hitting Chebatoris in the arm and causing him to crash the getaway car he was driving. As the wounded men looked for another escape route, Chebatoris spotted a uniformed truck driver named Henry Porter, whom he mistook for a police officer, and shot him. The men then tried to hijack a truck to make their escape, but as Gacy attempted to climb into the cab, the sharpshooter Hardy shot him in the head from 150 yards away, killing him instantly.* Chebatoris took off on foot and was apprehended a short distance away, exhausted and bleeding.

Chebatoris would survive his injuries, as would the bank employees Macomber and Bywater. But the innocent bystander Henry Porter put our convict on the road to the gallows: after two weeks in the hospital, Porter would succumb to his injuries, and murder would be added to the charges against the surviving bank robber. Michigan had outlawed the death penalty for murder in 1846, becoming the first U.S. state to do so. But Chebatoris found himself subject to a legal system that had been changed by New Deal politics and the public’s panic over escalating violence and criminality. Federal prosecutors took on the case, under the authority of the National Bank Robbery Act of 1934, which was passed in response to the rash of bank holdups across the country. The law gave the federal government the authority to prosecute anyone involved in the robbery of a bank that was a member of the Federal Reserve System or the newly created Federal Deposit Insurance Corporation. Unluckily for Chebatoris, Chemical State Bank was a member of both.

With a mountain of evidence against him, Chebatoris was easily convicted, and on November 30, 1937, he was sentenced to death by federal judge Arthur Tuttle. The case set off a political controversy in Michigan, one that would pit an anti-death-penalty governor against federal judges and prosecutors who wanted the sentence passed down and carried out in the state. Under the federal statute, federal death sentences could only be carried out in states that had their own death penalty. While Michigan had long abolished capital punishment for murder and other crimes, it still kept an obscure law on the books allowing execution for treason (which has never been exercised, as it is unclear how one would commit treason against the state of Michigan). This loophole allowed the federal capital prosecution and execution to proceed within the confines of the staunchly abolitionist state.

In response to the decision, Michigan Governor Frank Murphy said, “There hasn’t been a hanging in Michigan for 108 years. If this one is carried out in Michigan, it will be like turning back the clock on civilization.” Illinois, which had its own electric chair, offered to finish off Chebatoris, but Judge Tuttle ordered that the execution should proceed in Michigan, noting, “The just verdict having been returned, the law was mandatory in the three respects, namely that the penalty should be death, that it should be hanging, and that it should be within the state of Michigan. These last two requirements resulted from the fact that Michigan has one statute providing for the death penalty by hanging. If the sentence had been different in any one of these respects, it would have been unlawful. I have neither the power nor the inclination to change the sentence.”

Chebatoris was transferred from the Saginaw County Jail, where he had been held throughout his trial, to the federal prison in Milan. At 5 a.m. on July 8, 1938, he was brought to the gallows, and before 23 witnesses, including an inebriated hangman named Phil Hanna, he was hanged. In the middle of the night before the execution, Hanna had arrived at the prison demanding that his three drunken friends be admitted to the hanging. After an argument with the warden and a call to the director of the Federal Bureau of Prisons, Hanna was allowed to proceed with execution, and the warden acceded to his demands (though at the time of the execution, the warden barred the three friends from the proceedings, knowing that the room was too dark, and Hanna too drunk, for him to notice their absence).**

Chebatoris’ execution was both a unique event and a bellwether for things to come in the federal death penalty system. Since 1927, he is the only person to be executed for a murder committed in a state that does not have its own death penalty statute. After World War II, executions, both federal and state, went into a steep decline across the United States, culminating in the 1972 Supreme Court decision Furman v. Georgia, which struck down every capital punishment statute in the land. Four years later, the death penalty was revived in Gregg v. Georgia, and it took barely six months for states to resume executions. The federal government was slower, however, and the first post-Furman federal death penalty statute did not appear until 1988. Since that date, however, we have seen the steady expansion of the federal death penalty, building on the precedents set by the National Bank Robbery Act. Rather than targeting bank robberies, the federal government has used the death penalty to take aim at other perceived scourges, employing it is a weapon in the various domestic “wars” on crime, drugs, and terrorism.

In the past twenty years, the federal death penalty has been transformed from a seldom-used punishment for pirates and crimes committed in the territories to an expansive weapon that can be imposed in a wide range of jurisdictions, leading the Criminal Defense Network to conclude that “virtually every homicide occurring within federal jurisdiction is now death-eligible.”† The greatest expansion of the federal death penalty came with the 1994 Violent Crime Control and Law Enforcement Act, which greatly expanded federal jurisdiction and authorized the death penalty for nearly 60 different crimes. And the reach of the federal death penalty has continued to expand, even into states like Michigan that have rejected capital punishment.

There are currently 58 people sitting on the federal death row, nine of whom committed their crimes in states that either do not have a constitutionally valid state death penalty statute or have active moratoriums on the death penalty.‡ Interestingly, all of those nine were sentenced to death during the tenures of Attorneys General John Ashcroft and Alberto Gonzalez, and their decisions to pursue capital prosecutions marked a departure from the actions of their predecessors. Early in his term, John Ashcroft revised the U.S. Attorneys Manual and removed language about the Department of Justice’s policy towards seeking the death penalty in states that did not have their own capital punishment statutes. Previously the manual stated that in these states, “penalty-driven decisions to file federal charges are inappropriate.” That language was removed, and presumably this opened the door for the increase in prosecutions, convictions, and death sentences handed out in federal districts located within abolitionist states. Since Chebatoris’ execution, no one who falls into this category has been executed, and current Attorney General Eric Holder has signaled a return to the earlier practices, meaning the federal government will be less inclined to pursue these kinds of cases. Nevertheless, it is likely that at least one of these nine will eventually be executed.

When that happens, Anthony Chebatoris will no longer be a solitary historical footnote.

* Hardy was a hero, but he is not nearly as celebrated as another bank robbery foiler, Northfield, Minnesota’s Joseph Lee Hayward, who is remembered annually at the town’s “Defeat of Jesse James Days.” Perhaps Midland could build its own tourist attraction around Hardy?

** For a detailed account of the case of Anthony Chebatoris, read Aaron Veselenak’s article in the May/June 1998 issue of Michigan History Magazine, “The Execution of Anthony Chebatoris.”

† From Burr, Dick, David Bruck and Kevin McNally (2009). “An Overview of the Federal Death Penalty Process.” Capital Defense Network.

‡ These death row inmates are: Carlos Caro (WV), Donald Fell (VT), Marvin Gabrion (MI), Dustin Honken and Angela Johnson (IA), Ronald Mikos (IL), Alfonso Rodriguez (ND), Gary Sampson (MA), and Kenneth Lighty (MD). For a description of their cases, visit the Death Penalty Information Center. All are held in the Federal Correctional Complex in Terre Haute, IN, with the exception of Gary Sampson, who is being held in New Hampshire. For more information on these cases, visit the Death Penalty Information Center.

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Entry Filed under: 20th Century,Capital Punishment,Common Criminals,Crime,Death Penalty,Execution,Guest Writers,Hanged,History,Michigan,Milestones,Murder,Notable Jurisprudence,Other Voices,Pelf,Theft,U.S. Federal,USA

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