The controversy over capital punishment that has developed in recent years generally takes place within a framework of moral principles and statistics. Such matters as whether the punishment should be made to fit the crime, whether society has the right to protect itself by taking the life of a convicted murderer, kidnapper, or rapist, or whether capital punishment, in fact, deters these crimes, have pretty much determined the substance of the controversy. In turn, this controversy has given capital punishment a lively but rather abstract reality, particularly since the act itself now takes place off in a dark and isolated corner of society. Except for a brief item in newspaper back pages the act itself is virtually hidden from public view. Thus a graphic depiction of a modern-day execution like the one in the movie I Want to Live could come as a shocking revelation to most of its audience.
Such has not always been the case in America: until fairly recently, the execution of criminals had a powerful hold on the popular imagination and on public attention. And it seems reasonable to assume, as does a recent article in Newsweek, that one of the reasons why America has not followed much of the Western world in giving up the death penalty is that “it is deeply embedded in tradition.” In order, then, to see the issue of capital punishment as a lingering remnant of the traditional American ethos, it is useful to turn back to the record of the past. Perhaps the most pertinent and revealing chapter in the history of capital punishment in America is provided by the events that led up to and accomplished our first legal electrocution.
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As early as 1851, revulsion against the barbarities of public executions in New York State produced a bill in the legislature for the abolition of the death penalty and its replacement by life imprisonment. In the years that followed, the agitation continued in a desultory fashion, often being eclipsed by more dominant movements like abolitionism and women’s rights. Particularly fierce was the criticism of hanging. Since the hangmen were often unskilled, and since the newspapers of the period luridly reported each of their bungled attempts, the reformers found it easy to get a hearing. Yet they were unable to muster sufficient popular support to abolish “the rope.”
Among the foes of hanging was a prominent Buffalo dentist by the name of Alfred Porter Southwick, formerly the chief engineer of a Great Lakes steamboat company and later professor of Operative Technics at the University of Buffalo Dental School. In 1881 Dr. Southwick happened to see a drunk touch a live wire and instantly fall dead. Believing that electricity—the new and almost magical form of energy—might provide at least a less uncertain and painful mode of executing criminals than did hanging, Dr. Southwick set to work performing lethal electrical experiments on animals. After a few years of this research, he felt that he had developed a reliable method of electrocution. Some years earlier, Dr. Southwick had helped to secure the passage of the first dental law, and being a member of the Board of Dental Examiners, he now put his political experience in Albany to work in behalf of his new cause.
Evidence of Dr. Southwick’s efforts appears in a section of Governor Hill’s message to the legislature on January 6, 1885.
The present mode of executing criminals by hanging has come down to us from the dark ages and it may well be questioned whether the science of the present day cannot provide a means for taking the life of such as are condemned to die in a less barbarous manner.
Shortly afterward State Senator Daniel H. MacMillan, a friend of Southwick, introduced a resolution for the appointment of a committee to study and recommend a more humane form of capital punishment. The committee that was then appointed by Governor Hill comprised Commodore Elbridge T. Gerry of the New York Yacht Club, who was also counsel for both the American Society for the Prevention of Cruelty to Animals and the Society for the Prevention of Cruelty to Children; Matthew Hall, a resident of Albany; and Dr. Southwick. For a time the committee was unable to agree about the utility of “euthanasia by electricity,” as the New York Times termed it. A great deal of testimony was taken from reporters, physicians, and expert hangmen, and included the tale of a man who had almost been lynched; his vivid memories of the rope had a strong influence on the committee. In the end, two hundred questionnaires were sent to judges, sheriffs, district attorneys, and doctors. Eighty-seven votes were cast for electrocution, eighty to retain hanging, and the remainder were scattered or noncommital. One writer suggested hanging for men and electrocution for women.
The commission’s report, transmitted to the State Legislature on January 17, 1888, can be found in the library of the Association of the Bar of the City of New York. Its ninety-five yellow and crumbling pages would provide a sadomasochist’s paradise. It describes in alphabetical order and pedantic detail the various forms of execution used throughout the world:
beating with clubs; beheading; blowing from a cannon; boiling; breaking on the wheel; burning; burying alive; crucifixion; defenestration; dichotomy—i.e., cutting into two parts; dismemberment; drowning; exposure to wild beasts, especially serpent’s fangs; flaying alive; flogging; garrote; guillotine; hanging; hari kari; impalement; iron maiden; peine forte et dure—i.e. placing a heavy weight on the chest, which gradually reduces breathing; poisoning; pounding in mortar—(Proverbs 27:22); precipitation—from a lofty precipice; pressing to death; rack; running the gauntlet; shooting; stabbing; stoning or lapidation; strangling; suffocation.
The guillotine was discarded by the Gerry Committee as being too bloody; the garrote was not sufficiently quick and certain; shooting was not proper for a democracy but for a land “where military despotism prevails.” Hanging was criticized on many counts, including the custom of giving the condemned man liquor before the execution: “In the moral aspect,” the commission noted, “the gross impropriety of sending a man into the presence of his Maker intoxicated is too obvious to require comment.” Poisoning by means of hypodermic injection of prussic acid received some favorable interest until the medical profession protested.
In coming out for electricity the committee also took the opportunity to recommend that the proposed Electrical Execution Law provide that the corpse of the criminal be dissected by doctors and also that the burial as well as the execution be kept private. In the words of the Committee “Such procedure rather than returning the body to his companions in crime and sympathizers in its commission—would produce a far more effective result in diminishing crime than under any circumstances that can now be accomplished by the present course pursued by the law.” The Report also emphasized that the new law should prohibit newspapers from printing any but the barest details of the executions. This provision was written into the law and was subsequently to lead to the indictment of almost every newspaper in New York City.
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On January 1, 1889, the Electrical Execution Law went into effect. On the morning of March 29, three months later, in Buffalo, New York, a young produce peddler by the name of William Kemmler walked out of his house shortly after the neighbors had heard the sounds of a violent quarrel and quietly said to one of them: “I’ve killed her. Yes, Mrs. Reid, I have and I’ll take the rope for it.” “Her” referred to Tillie Ziegler, a young married woman with whom Kemmler had eloped from Philadelphia some eighteen months before. Kemmler was said to be a shy and quiet man, illiterate but successful in his produce business, scrupulous in his dealings with his partner but subject to lengthy and expensive drunks. Though a heavy drinker, he was a peaceful one, and the cause of his taking an axe to Tillie appears to have been the constant nagging and threats to which she subjected him. In his confession Kemmler described their final argument as follows:
Tillie was continually talking about my first wife and telling me that she would make me go back . . . and that was continually preying on my mind, fearing she would tell me to go. . . . I was afraid she was going to make me go back to this woman and I know that I would not live happily with this woman after going away from her and it made me feel very bad. She used to always get at me about this woman. I told her to quit that and I told Tillie to go back again; I will fix you up your same little house you had before you made me take you with me. She would not do that. . . .
At the trial, there was some attempt to establish that Kemmler was jealous of his partner, John DeBella, who lived with Kemmler and Tillie and, further, that he had suffered a brain injury some years before. But the jury was more swayed by the gruesome description of the many wounds and bruises he had inflicted on his mistress and convicted him of murder. Kemmler was then sentenced to be executed during the week of June 24, the first execution to be administered under the new law.
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However, the Kemmler case was far from over, for it was soon to become embroiled in one of the great public issues of the day, and eventually was to be intertwined with the emergence and course of the new industrialized society. One of the authorities who had appeared before the Gerry Committee was Thomas A. Edison; he strongly urged that alternating current be used in all electrocutions, a recommendation that was later to be supported by the New York Medico-Legal Society. Now it so happened that around this time the Edison Electric Light Company was waging a full-scale publicity campaign against alternating current and its principal developer, George P. Westinghouse and his U.S. Electric Light Co. Edison’s direct current generators had largely pre-empted the field until 1886, when Westinghouse took over the patents for a transformer that could harness alternating current and step down its high voltage for ordinary domestic use. In November 1886, Westinghouse installed an a.c. dynamo in Buffalo, which soon began to provide cheaper and more efficient power than that of the d.c. current with its shorter carrying distance. Orders for Westinghouse’s new dynamos began to pour in, and Edison saw that his major market in New York City was in jeopardy.
His main tactic was to exploit the public fear of alternating current, the notion being that its high voltage would not only burn out the filaments in light bulbs but also wreak havoc on life and property. A campaign was then under way in New York City to bury underground the high-tension overhead wires which in the 1880’s made the city look like a jungle and produced a steady succession of accidental electrocutions from dangling wires. Edison argued that underground conduits would lessen the peril only for d.c. cables. “No known method of insulation could render a high-tension alternating wire safe,” he claimed, for the current could easily burn out its tubes and leap into dwellings to kill and destroy—so he said.
To the embattled Wizard of Menlo Park, the plan to execute William Kemmler by means of alternating current furnished by one of Westinghouse’s dynamos was a great opportunity to strengthen his propaganda against the use of alternating current. He hired a young electrician, Harold P. Brown, to tour the state, denouncing overhead wires and demonstrating the lethal power of his competitor’s current. Brown issued a public challenge to Westinghouse: “To meet me in the presence of competent electrical experts and take through his body the alternating current while I take through mine a continuous current. . . . The alternating current must not have less than 300 alternates per second. We will commence with 100 volts and will gradually increase, until either one or the other has cried enough and publicly admits his error.”
Westinghouse replied with a counter-challenge, but of course neither was accepted. Brown then hinted darkly that Westinghouse used direct current in his own home.
During this vendetta, Edison’s popular support steadily rose; for many years he had been a leading newspaper hero: a striking blend of the village tinkerer and the rugged individualist. In addition to the power of his personal image, Edison was able to take advantage both of the voluminous misinformation about electricity and the aura of mystery that surrounded it. Newspapers still referred to it as a “fluid”; and anyone who spoke confidently about its attributes—whether scientific wizard or editorial writer—immediately commanded an awed and respectful audience. Westinghouse, on the other hand, had little skill or experience in making himself heard in the unruly forum of the American press; he knew next to nothing about public relations and Edison’s catch-as-catch-can tactics were driving him into a corner.
Soon after Kemmler’s sentence, a notice of appeal was filed, and a writ of habeas corpus was obtained in one of the lower state courts on the ground that the state constitution forbade the infliction of “cruel and unusual punishments.” Kemmler’s defense was now being handled by W. Bourke Cockran, a flamboyant and very expensive Tammany lawyer. Cockran orated that there never had been an attempt to electrocute in the history of the world, which certainly rendered it an “unusual punishment.” Further, it had been established beyond dispute “that unless death be instantaneous the torture will be exquisite; and that no means have yet been devised by which immediate death can certainly be produced.” In an Irish brogue that “gave an exotic quality to his speech,” Cockran quoted from the French Constitution, Jefferson, Macaulay, and Hallam to bolster his rhetoric. “Mummification,” “carbonization,” “boiling alive” would be Kemmler’s fate.
Kemmler’s “appeal” led to the appointment of Tracy C. Becker, a young Buffalo lawyer, to take testimony on the efficacy of electricity as a mode of capital punishment. The state would pay referee’s fees and the expenses of taking the testimony of witnesses while the defendant would pay for the expenses incurred by his witnesses.
That Kemmler himself was to share the costs of the hearings was a legal fiction since he had little money to start with. Eventually the cost of all the defense appeals, hearings, and incidental expenses was estimated to have run between $50,000 and $100,000. To the newspapers, there was no doubt about who was paying for Kemmler’s defense. Westinghouse steadfastly denied he had anything to do with it and repeatedly issued statements and correspondence which the newspapers printed with ill-concealed skepticism. It is probable that other electrical companies which had adopted alternating current also contributed to a fund to defray legal expenses. At a meeting in Chicago in January 1889, shortly after the new execution law was signed, these corporations adopted a resolution that no company should allow a current in its control to be used for the “ignoble purpose” of executing murderers.
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The hearings before Referee Becker began in May 1889. Despite the court’s injunction to report back within two months, the hearings were dragged out until September by the many defense witnesses. The newspapers impatiently referred to Cockran’s “intolerable imposition on the public.” A New York Times editorial of the day provides a typical reaction:
Any mode of execution is liable to misadventures. When a court sentences a man to be hanged by the neck until he is dead, it does not contemplate decapitation, which has been known to occur; but the possibility of decapitation would not be accepted by any court as a reason for denying the execution of the sentence. There is necessarily something experimental in the first trial of a new mode of execution.
Be that as it may, the Becker hearings brought the Edison-Westinghouse feud to its great climax. Edison’s experts tried to prove conclusively that alternating current would kill instantly and painlessly, while Kemmler’s lawyers attempted to show that this was far from certain. To this end, Cockran and his colleagues rounded up an astonishing array of witnesses, some brought from as far away as the West Coast. The most unusual witness was a dog named Dash, a cross between a St. Bernard and collie. Dash, who “was greatly admired by all at the hearing,” had been shocked unconscious some months before when he touched a live a.c. wire. Following some neighborly advice, his owner had half-buried him in soil, and after six hours, the dog had come back to life. Several other witnesses testified that they had been struck by lightning.
Eventually Thomas Edison himself was called by the state to testify in its behalf. Edison kept the stand for the better part of two days. It was a great event for the newspapers, all of whom were hostile to Cockran. “The Wizard” was subjected to a long cross-examination, but Cockran couldn’t shake his testimony that an alternating current of 1,000 volts would kill. One interesting fact brought out in the hearings was that Edison owned the patents for an a.c. dynamo but hesitated to use it commercially because of its potential dangers. At the conclusion of the cross-examination Edison was asked sarcastically whether he didn’t have “an abiding love for Mr. Westinghouse.” He said he did not “entertain any such tender passion, but had no dislike for the gentleman named.”
Following the referee’s investigation (which produced a report of 350,000 words), the court refused to set aside the conviction. The case was then taken to the appellate court which approved the lower court’s decision.
Almost a year had passed since Kemmler’s indictment and first conviction. During this period and during the months that followed, some 448 days in all, Kemmler lay in solitary confinement, as provided by the law. He learned to read and to sign his name, and the warden of Auburn Prison was said to have become fond of him. After his second appeal, Kemmler was brought to Buffalo and re-sentenced to die on April 29. He is reported to have said:
I am ready to die by electricity. I am guilty and must be punished. I am ready to die. I am glad I am not going to be hung. I think it is much better to die by electricity than it is by hanging. It will not give me any pain.
In preparing for the execution, the state had signed a contract with Edison’s protégé, Harold Brown, for three a.c. dynamos to be installed in Auburn, Sing Sing, and Clinton Prisons. Knowing that Westinghouse would never sell him the dynamos, Brown found intermediaries in Rio de Janeiro who purchased second-hand dynamos from Westinghouse and then trans-shipped them to the United States. Brown sold them to the state for $8,000, thus saving $2,000 of the money that had been appropriated.
The dynamos were promptly installed and the chair was constructed. Public interest steadily mounted. However, on the day of the scheduled execution, another well-known New York lawyer, Roger M. Sherman, sent a federal writ of habeas corpus to Warden Durston of Auburn which stayed the proceedings until the U.S. Supreme Court could decide whether electrocution was a cruel and unusual punishment. Then to tangle things up even more effectively, another writ was obtained from a county judge to test the legal right of any official other than the sheriff of Erie County, in which the murder had been committed, to execute Kemmler. The witnesses and reporters who had arrived to witness the first electrocution returned home in disgust. Several editorials angrily raised the question of why the chief clerk of Westinghouse’s law firm happened to be in Auburn while the writ was being served.
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Despite Sherman’s efforts in Washington, the U.S. Supreme Court tossed out the case in a decision handed down on May 23 by Chief Justice Fuller, who found that punishments are cruel only “when they involve torture or a lingering death.” Meanwhile Cockran was arguing in vain before the N.Y. Court of Appeals, that “it was the boon and privilege of the sheriff of Erie County to put Kemmler to death and that this sacred right had been unconstitutionally transferred by the Legislature to the warden of a State prison.” For the third time, Kemmler appeared in court to be sentenced to die in the electric chair. After he returned to his cell in Auburn, the Westinghouse Company began to institute proceedings to repossess its dynamos from the state on the ground that they had been obtained by fraud. However, the action was dropped.
World interest in Kemmler’s fate revived again as the week of August 4, 1890, drew near. “In London, Paris, and Vienna the populace eagerly awaited the meagre details,” according to the Utica Globe, “and in our own country it attained an importance almost rivalling the result of a Presidential election.” Osborne House, Auburn’s leading hotel, was filled with newspapermen, though none could be admitted to the execution under the provisions of the new law according to which newspapers were forbidden to print anything but a short statement that an execution had taken place. However, in violation of this law, Governor Hill himself had authorized the presence of two correspondents from the Associated Press and United Press, respectively. With this official encouragement, the other newspapermen had no qualms about violating the law, especially since it was regarded by New York editors, with the vociferous exception of Edwin L. Godkin of the New York Evening Post, as a violation of freedom of the press.
Godkin declared scornfully that no high-minded ideals motivated the opposition of his competitors, merely the chance to bring in “a certain amount of filthy lucre to the fiend in the counting room. . . . If no money were to be made by pandering to depraved taste, the law on the subject would be extolled by the very newspapers that now decry it as an infringement of liberty and demand its repeal.” Godkin’s editorial called for the arrest of every editor who violated the anti-publicity provision.
Meanwhile, Western Union was setting up telegraph wires in a freight depot opposite the prison, so that the reporters could file their stories. The Post correspondent helpfully asked if Western Union wasn’t worried that it might be indicted for transmitting matter forbidden by the law. A lawyer for the company replied that the law compelled his client to accept messages, and moreover, perhaps these were going to be cipher messages, “couched in terms of the electrical execution of Kemmler, but relating to an entirely different matter.”
The electrician in charge of the Auburn plant was interviewed; he predicted “a nice clean job using an a.c. current of 800 cycles per second.” Having himself once been rendered insensible by electricity, he described his experience to the reporters as a “kind of choking sensation as if I could not catch my breath.” Dr. Southwick, who by this time had earned the nickname of “Old Electricity,” was also interviewed and was reported to be opposed to strapping Kemmler into the chair “because he thought it would make him nervous and cause trouble.” The newspapers were also carrying in their columns a running dispute over the proper neologism for this new form of execution.
“We pray to be saved,” said the New York Times, “from such a monstrosity as ‘electrocution’ which pretentious ignoramuses seem to be trying to push into use. It is enough to make a philologist writhe with anguish. The Bowery slangmakers are likely to hit upon a better word than that if time is given them.”
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Wednesday morning, August 6, was a lovely summer day—“a sky cloudless, air cool and a slight breeze swayed the treetops.” The twenty-five witnesses, fifteen of whom were doctors, were awakened at 5 A.M. The execution was to take place before 7 A.M., for it was feared that the 1,200 convicts at Auburn would be unduly disturbed by a sudden shutdown of the electric power while they were at work in the machine shops.
Kemmler was snoring peacefully when he, too, was awakened at 5 A.M. The New York Tribune insisted he was fretful and broke down when the keepers came into his cell. “He sank back in his cot with a snarl,” the account read, “almost like that of a wild beast at bay, knowing that there is no escape. A thunderstorm came in—every peal of thunder and flash of lightning made the murderer jump and start.”
All the other newspaper descriptions, however, agree that the sky was a serene blue and that Kemmler was quite calm and resigned. When the death warrant was read to him, he turned to a deputy sheriff from Buffalo with whom he had become friendly and said: “Joe, I want you to stay right through this thing. Don’t let them experiment upon me more than they ought to.”
His trousers and shirt were then slashed at the base of the spine so that the electrodes would come in contact with his skin, and a deputy sheriff clipped the top of his head. Then came breakfast. Following a brief prayer by the minister, Kemmler was led down the hall. It was 6:32 A.M. and the warden hoped to be through with the job by 7 A.M.
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The execution was to take place in a room in the basement of the prison’s administration building, to which the electric current would be conducted by an ordinary wire. The apparatus consisted of a stationary engine along with the Westinghouse a.c. dynamo, supposedly capable of generating from 1500 to 2376 volts; an “exciter,” and a voltmeter with an extra-resistance coil calibrated for a range from 30 to 2,000 volts; an a.c. ammeter from 0.10 to 3.0; finally a Wheatstone bridge, a rheostat, bell signals, switches, and the death chair.
The chair, which was fastened to the floor, had an adjustable head-rest, binding straps, and two adjustable electrodes. It was made of heavy oak, square-framed, with a high, sloping back and broad arms. The spinal or body electrode was attached to the lower part of the chair and projected forward horizontally on a level with the hollow of the sacrum. The head electrode was a bell-shaped rubber cup about four inches in diameter. The part corresponding to the handle of the bell was of wood, through which a wire was passed inside the bell, terminating in a metallic disc about three inches in diameter and faced with a layer of sponge. The wire to the head electrode descended from the ceiling and that of the lower one passed along the floor, protected by a strip of wood.
The dynamo and engine were located in one of the prison shops, several hundred feet away from the execution chamber. The voltmeter, switch, and other instruments were located in a room adjoining the execution chamber. (Both sets of arrangements proved to be horribly mistaken.) Communication between meter-room and dynamo-room was by means of electric bells.
When Kemmler entered the room, Warden Durston introduced him to the assembly, which was seated in a semicircle around the electric chair: “Gentlemen, this is Mr. Kemmler.”
Kemmler bowed slightly and was led to a seat near the electric chair, while the electricians fiddled with the wiring and made last-minute adjustments.
Dr. Carlos F. MacDonald, president of the State Commission on Lunacy, and Dr. E. C. Spitzka, a New York neurologist, had been designated by the warden as supervising physicians. Dr. MacDonald described the scene as follows in his official report to Governor Hill:
Kemmler on entering appeared strikingly calm and collected. In fact, his manner and appearance indicated a state of subdued elation as if gratified at being the central figure of the occasion, his low order of intelligence evidently rendering him unable to fully appreciate the gravity of his situation.
Kemmler was then invited to utter his last thoughts. To which he replied: “Well, I wish everyone good luck in this world and I think I am going to a good place and the papers have been saying a lot of stuff about me that wasn’t true. That’s all I have to say.”
The New York World charged that “it was only too evident that he had been largely dosed with whiskey.” (How the reporter knew this was not clear: first-hand Associated Press and United Press stories made no mention of this presumably obvious fact.) Noting Kemmler’s dark coat and vest, light trousers, turn-down collar and narrow linen bow tie of white squares with black checks, the reporter for the World mused that “never in his life was he so well dressed as when ready for the grave.”
At the warden’s command, Kemmler arose, took off his coat, and sat down in the electric chair. His head was secured by the leather bands which encircled his forehead. His arms and legs were secured by broad straps attached to corresponding portions of the chair. As he sat there on the chair, he quietly offered suggestions for fixing the electrodes. Observing the nervousness of the executioner’s assistants, he asked them not to hurry. He wanted them to “be sure that everything is all right.” He pressed his bared back firmly against the spinal electrodes, and then twisting his head around under the electrodes, he turned to Warden Durston and said: “Warden, that cap had better be a little tighter. It is not tight enough.” He told the witnesses that he wanted to perform his part to the best of his ability.
The mask was placed over his face, leaving his lips and nostrils visible. The electrodes were then given a final moistening in the salt water solution. All this took about three or four minutes.
At 6:40 A.M., the warden stepped back from the chair and said “Goodbye, William.” Then he rapped twice on the door leading to the switchroom. E. F. Davis, the state’s first executioner, closed the circuit.
Instantly Kemmler’s body became rigid; then, suddenly he groaned and appeared to be gasping for breath. After that he was still. Dr. Spitzka waited for seventeen seconds and then said: “That will do. Turn off the current. He is dead.” There was another rap on the door and the circuit was broken.
“There,” exclaimed Dr. Southwick. “There is the culmination of ten years’ work and study. We live in a higher civilization from this day.”
After Davis had opened the switch and while the doctors, including Southwick, stood about congratulating themselves on the success of the experiment and discussing the death certificate, Dr. Louis Balch, secretary of the State Board of Health, cried out, “Dr. MacDonald, see that rupture!”
The index finger of Kemmler’s hand at the instant of contact had curved inward as the flexor muscles contracted and had scraped off a small piece of skin at the base of the thumb. This little rupture was bleeding.
Dr. Spitzka shouted: “Turn on the current instantly. This man is not dead.” The episode was reported by the Associated Press and several newspapers. It is not mentioned in Dr. MacDonald’s carefully worded official account. However, the Associated Press dispatch quoted the head executioner’s words that “something was wrong about the machinery down there”—referring to the dynamo and the circuit. It turned out that Harold P. Brown, Edison’s fugleman, had supervised the building and placing of the apparatus. As the result of a subsequent quarrel with Warden Durston, Brown had stayed away from the execution. The A. P. story is corroborated by a later statement from Robert Elliott, the state’s third executioner, which is contained in his memoir, Agent of Death. Elliott reported that the head executioner had told him that “the apparatus was not all it should have been. For one thing . . . the electrodes were too small, and caused too much burning of the body.”
In any event, the scene was appalling. Kemmler’s groans, perhaps nothing more than the final expulsion of breath from his lungs, were nonetheless shockingly real. The U.P. reporter is said to have fainted. The District Attorney of Erie County, the man who convicted Kemmler, ran out of the room in horror. The autopsy report showed that Kemmler’s flesh had been severely burned at the points of contact.
Dr. Spitzka was blamed for the fiasco in that he had allowed only ten seconds of current. “Had the first contact been maintained for a sufficient length of time,” said Dr. MacDonald, “in all probability there would have been no involuntary movement of the body after it was broken and no unfavorable criticism could have been made.” Dr. Spitzka rebutted that the current had been continued for seventeen seconds. Moreover, he was in favor of the guillotine. There was some question as to the accuracy of the various stopwatches in the room.
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The newspapers in New York, London, Paris, and elsewhere reacted with fiery rhetoric. “Kemmler is dead,” the New York World declaimed. “Aye, and the fair, sweet mercy of electric death should die with him. Better, infinitely better, the one quick wrench of the neck-encircling hemp than this passage through the tortures of hell to the relief of death.” Dana’s New York Sun coolly suggested that “Civilization will find other lines on which to manifest progress.” The New York Press asserted that “the age of burning at the stake is past; the age of burning at the wire will pass also.” The London Times found that “it would be impossible to imagine a more revolting exhibition,” and the London Standard was certain that the scene would “send a thrill of indignation throughout the civilized world.”
The New York Tribune and the New York Times, however, were calmer and favored further experimentation. The Times editorial, “A Bungling Experiment,” admitted that “the advocates of this method of executing the death penalty are for the moment put on the defensive, but they have not a failure of method to face. Nothing that they have claimed has been refuted. The first trial was of necessity an experiment and it was not conducted with that care and coolness that were requisite to insure success.”
As for two other interested parties, Edison rebuked the doctors and said it was a mistake to have let them handle the execution; Westinghouse remarked that “they could have done better with an axe.” Dr. Southwick, the erstwhile opponent of capital punishment, was quoted as follows:
There is nothing against the system at all and the fact is there has been a great deal of senseless, sensational talk about the execution. . . . In fact, a party of ladies could sit in a room where an execution of this kind was going on and not see anything repulsive whatever.
No sir, I do not consider that this will be the last execution by electricity. There will be lots of them. [New York is near its 700th electrocution.] It has been proven that the idea was correct and I think the law is the best one. The execution was a success.
The Kemmler execution, despite the New York Herald’s attempt to keep it alive for several days, was soon pushed out of the news by a Knights of Labor strike against the New York Central, talk of an elevated railroad for New York City, and the appearance of DeWolf Hopper in Castles in the Air. The New York Post’s demand that its rivals be indicted for violating the law met with little support. The newspapers flatly stated that the public owed a debt of gratitude “to the press for making public the new mode of execution,” and the representative of the State Attorney-General laughed when asked if he would seek indictments.
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However, the next executions—four on the same day—touched off a new wave of trouble with the press. Warden Brown of Sing Sing (where a new death chamber had been built and where all executions have since taken place) not only barred the reporters from the execution chamber, but determined to keep them as far away from the prison gates as possible. Indignantly, they wired stories about the twenty-four hour patrol of guards armed with repeating rifles who “threatened to shoot any and all newspapermen who crossed a certain deadline.” Bloodhounds were reportedly also used.
One of the four executed men was Japanese and the press was able to make much of the fact that he “died a pagan” despite the attempts at conversion by Chaplain Law of the Tombs Prison who had been a missionary in Japan. The four executions took a total of an hour and twenty-five minutes. Dr. Southwick was around again and testified that everything went off smoothly. A mild furor was produced by a story palmed off on the United Press by an anonymous eyewitness who claimed that the four men had suffered just as badly as Kemmler had. A New York Times editorial accused the Westinghouse forces of circulating this report.
Six columns in the Times, eleven columns in the Sun, almost 10,000 words in the Herald, and similar accounts in the other newspapers—except the Post—produced another rise in circulation. A few weeks later, a New York County Grand Jury found indictments against nine newspapermen (including James Gordon Bennett of the Herald and Joseph Pulitzer of the World) for having violated the Electrical Execution Law. All were arrested between July 24 and August 5 and bail was set at $500. The punishment provided was a year’s imprisonment or a $500 fine or both. However, DeLancey Nicoll, the District Attorney, let it be known that he was merely getting up some test cases, and in an interview with the Herald he forthrightly attacked the stipulations against the press. One of his assistants generously suggested several points of law that the defendants might use. The Herald’s headline summed up the issue:
THE HERALD INDICTED FOR PRINTING NEWS
The Herald Will Battle For the People’s Right
Bourke Cockran put in an appearance as defender of the Herald‘s constitutional rights. Bennett declared that “the Herald considers it an honor to have been chosen as the journal to vindicate the freedom of the press,” and only oblique and inconspicuous references were made to the fact that other newspapers had been indicted as well. The Sun then joined the campaign. It printed broadsides of opposition to the law from leading citizens—every city desk has a book containing names of leading citizens who are willing to be quoted on any subject. The Sun also announced it would oppose every candidate for the legislature who didn’t pledge himself in advance to fight for repeal of the press provision.
The next legislature promptly passed a bill to repeal the old electrocution law, and enacted a new one which was more responsive to the interest of the press and the public. It was signed by the governor just in time for the newspapers to cover—legally—the execution of Charles E. McElvaine who had murdered a grocer about two and a half years before. District Attorney Nicoll had the indictments dismissed by the court and the victory for a free press was won.
Eight reporters were invited to McElvaine’s execution, among them the redoubtable Arthur Brisbane, then with the World. A seasoned observer, Brisbane found that electrocution was a more unpleasant sight than decapitation but “not as repulsive as an average hanging.” His conclusion was:
What most repels the spectator at such an execution as that which occurred yesterday, is the sight of a number of men, who have wives and daughters at home and decent associations generally, deliberately occupying themselves with killing a helpless fellow creature.
Some seven hundred electrocutions later, in March 1963, the New York state legislature revised the execution law so that the death penalty is no longer mandatory for convictions of first degree murder. Whether or not this means that the deliberative body of New York State, or of forty-one others, will come eventually to agree with Brisbane’s final point remains to be seen.
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