Arizona Jewish Community Sues to Bar State from Executing Prisoners with Gas Nazis Used in Holocaust

Members of the Arizona Jewish com­mu­ni­ty have filed suit to bar the state from exe­cut­ing pris­on­ers in its gas cham­ber, using the same sub­stance employed by the Nazis dur­ing the Holocaust to mur­der more than one million people.

On February 15, 2022, the ACLU of Arizona filed a tax­pay­ers’ com­plaint in a Maricopa County tri­al court on behalf of the Jewish Community Relations Council of Greater Phoenix, along with its exec­u­tive direc­tor and a mem­ber of its board, argu­ing that the state’s planned use of hydro­gen cyanide gas ​“vio­lates the pro­hi­bi­tion against cru­el and unusu­al pun­ish­ment in … the Arizona Constitution.” The suit, which names the State of Arizona, the Arizona Department of Corrections, Rehabilitation & Reentry (ADCRR), state attor­ney gen­er­al Mark Brnovich, and ADCRR Director David Shinn as defen­dants, seeks to per­ma­nent­ly enjoin the state ​“from using cyanide gas in any exe­cu­tions; and … from mak­ing any fur­ther expen­di­tures relat­ed to its cyanide gas protocol.”

In an action that pro­voked inter­na­tion­al out­rage, Arizona ​“refur­bished” its gas cham­ber after tests con­duct­ed in August 2020 revealed leaky seals and gas­kets and spent more than $2,000 to acquire ingre­di­ents to exe­cute pris­on­ers with cyanide gas. The gas, known by the Nazis as ​“Zyklon B” was the sig­na­ture method by which the Nazis car­ried out their geno­cide against European Jews, the Roma, and local pop­u­la­tions at the Auschwitz-Birkenau, Majdanek, and oth­er concentration camps. 

The state’s expen­di­tures were dis­closed in a May 2021 inves­tiga­tive report by the British news­pa­per, The Guardian. Austrian ambas­sador to the United States, Martin Weiss, respond­ed at the time: ​“The death penal­ty is in and of itself a cru­el and unusu­al pun­ish­ment. Getting ready to use Zyklon B for exe­cu­tions is just beyond the pale.” The American Jewish Committee, one of the country’s old­est Jewish advo­ca­cy groups, issued a state­ment June 7, 2021, denounc­ing Arizona’s action. ​“Arizona’s deci­sion to employ Zyklon B gas as a means of exe­cu­tion defies belief,” AJC wrote. ​“While there can be no doubt about its effec­tive­ness — the Nazis used it to kill mil­lions of inno­cent Jews — it is that very effec­tive­ness as an instru­ment of geno­cide that makes it utter­ly inap­pro­pri­ate for use by a civ­i­lized state in a pro­ceed­ing sanc­tioned by the state and its judiciary.”

The law­suit alleges that ​“tax­ing Arizonans, includ­ing vic­tims of the Holocaust, and effec­tive­ly forc­ing them to sub­si­dize and relive unnec­es­sar­i­ly the same form of cru­el­ty used in World War II atroc­i­ties” con­sti­tutes a ​“griev­ous moral and con­sti­tu­tion­al injury.” Tim Eckstein, chair­man of the board of the Jewish Community Relations Council of Greater Phoenix, said in a state­ment ​“Approximately 80 Holocaust sur­vivors cur­rent­ly call our state their home, and many of these sur­vivors are hor­ri­fied at being taxed to imple­ment the same machin­ery of cru­el­ty that was used to mur­der their loved ones. It is appalling that Arizona has cho­sen to use the very same chem­i­cal com­pound that was used by the Nazis in Auschwitz to mur­der more than one million people.”

Arizona adopt­ed lethal injec­tion as its pri­ma­ry exe­cu­tion method in 1992 but per­mits those sen­tenced to death before 1992 to elect lethal gas as their method of exe­cu­tion. Brnovich is cur­rent­ly seek­ing to set exe­cu­tion dates for Frank Atwood and Clarence Dixon, both of whom would be eli­gi­ble to select exe­cu­tion by lethal gas. 

The last per­son exe­cut­ed by cyanide gas in Arizona was Walter LaGrand, a German nation­al, in 1999. The Tucson Citizen report­ed ​“ago­niz­ing chok­ing and gasp­ing” dur­ing the exe­cu­tion. ​“The wit­ness room fell silent as a mist of gas rose, much like steam in a show­er, and Walter LaGrand became enveloped in a cloud of cyanide vapor,” the Citizen report­ed. ​“He began cough­ing vio­lent­ly — three or four loud hacks — and made a gag­ging sound before falling for­ward.” LeGrand took 18 min­utes to die.

The suit quotes Holocaust sur­vivor John Steiner, who in 1992 refused to par­tic­i­pate in gas exe­cu­tions when he was employed at California’s San Quentin Prison. Steiner had been impris­oned at Auschwitz-Birkenau, and his moth­er was killed there. ​“I refused to act as a wit­ness because, among oth­er things, I knew that lethal gas is an excru­ci­at­ing­ly painful method of exe­cu­tion,” he said. ​“Witnessing a per­son being gassed to death would bring back hor­ren­dous mem­o­ries of the hideous fate suf­fered by mil­lions, which includ­ed my fam­i­ly, extend­ed rel­a­tives, and friends. Even with­out wit­ness­ing the exe­cu­tion, being at San Quentin brought back all the mem­o­ries, includ­ing the ghast­ly odors of the death camp Auschwitz-Birkenau.”

In addi­tion to its his­tor­i­cal con­nec­tion to the atroc­i­ties com­mit­ted dur­ing the Holocaust, the law­suit argues that exe­cu­tion by lethal gas is uncon­sti­tu­tion­al because its use has become ​“unusu­al.” The plain­tiffs note that only sev­en states autho­rize lethal gas as an exe­cu­tion method under any cir­cum­stances. Three of them autho­rize it only if lethal injec­tion is found uncon­sti­tu­tion­al, and three more, includ­ing Arizona, allow it only if a pris­on­er selects it. Arizona fur­ther restricts it to the sub­set of pris­on­ers sen­tenced to death before 1992.

“Under no cir­cum­stances should the same method of exe­cu­tion used to mur­der over one mil­lion peo­ple, includ­ing Jews, dur­ing the Holocaust be used in the exe­cu­tion of peo­ple on death row,” Jared Keenan, senior staff attor­ney with the ACLU of Arizona, said in a state­ment. ​“Arizona has acknowl­edged the hor­rors of cyanide gas as a method of exe­cu­tion and elim­i­nat­ed it in all but a nar­row set of cas­es — it’s time the court elim­i­nates the use of cyanide gas for exe­cu­tion once and for all. Regardless of where peo­ple stand on the mat­ter of cap­i­tal pun­ish­ment, it’s clear that use of this bar­bar­ic prac­tice is cru­el and must be abolished.”