1 00:00:15,356 --> 00:00:22,076 Speaker 1: Pushkin Hey revisionist history listeners ben out of Hafer here 2 00:00:22,836 --> 00:00:26,596 Speaker 1: this past season on Revisionist History, the Alabama Murders, we 3 00:00:26,676 --> 00:00:29,756 Speaker 1: told the tale of how one death snowballed into a 4 00:00:29,756 --> 00:00:34,196 Speaker 1: cascade of moral failures masked with legal fig leaves the 5 00:00:34,236 --> 00:00:38,236 Speaker 1: misunderstanding of what constitutes reasonable doubt, the myth that there's 6 00:00:38,236 --> 00:00:41,636 Speaker 1: a painless way to kill somebody. At its core, the 7 00:00:41,676 --> 00:00:45,196 Speaker 1: Alabama Murders is a searing critique of cruelty in America 8 00:00:45,716 --> 00:00:48,516 Speaker 1: in the legal system that allows that cruelty to thrive. 9 00:00:49,756 --> 00:00:52,076 Speaker 1: But the story goes much deeper than a single case 10 00:00:52,156 --> 00:00:54,996 Speaker 1: or a single incident from the nineteen eighties. As of 11 00:00:55,036 --> 00:00:58,796 Speaker 1: December one this year, eleven states have executed a total 12 00:00:58,876 --> 00:01:02,996 Speaker 1: of forty four people, making twenty twenty five one of 13 00:01:03,036 --> 00:01:07,036 Speaker 1: the deadliest years for state sanctioned killings, and in Alabama, 14 00:01:07,196 --> 00:01:11,236 Speaker 1: they're still using nitrogen hypoxia, the brutal method pioneered in 15 00:01:11,316 --> 00:01:16,596 Speaker 1: Kenny Smith's final execution. Malcolm recently joined Liliana Segura, a 16 00:01:16,636 --> 00:01:20,636 Speaker 1: criminal justice reporter at the Intercept, to discuss capital punishment 17 00:01:20,996 --> 00:01:23,356 Speaker 1: and what happens when a legal system that's supposed to 18 00:01:23,436 --> 00:01:28,276 Speaker 1: catch mistakes and reduce harm doesn't. They also talk about 19 00:01:28,276 --> 00:01:31,076 Speaker 1: why Malcolm felt drawn to investigate the death penalty in 20 00:01:31,116 --> 00:01:34,036 Speaker 1: the series. It's a great conversation and we thought that 21 00:01:34,116 --> 00:01:36,196 Speaker 1: listeners of the series might want to hear it here, 22 00:01:36,556 --> 00:01:39,196 Speaker 1: So here's the episode. Thanks for listening. 23 00:01:44,276 --> 00:01:46,796 Speaker 2: Welcome to the Intercept Briefing. I'm Mikaela Lacey. 24 00:01:47,596 --> 00:01:51,276 Speaker 3: As of December first, officials across the US have executed 25 00:01:51,476 --> 00:01:55,316 Speaker 3: forty four people in eleven states, making twenty twenty five 26 00:01:55,636 --> 00:01:58,876 Speaker 3: one of the deadliest years for state sanctioned executions in 27 00:01:58,916 --> 00:02:02,876 Speaker 3: recent history. According to the Death Penalty Information Center, three 28 00:02:02,996 --> 00:02:06,036 Speaker 3: more people are scheduled for execution before the new year. 29 00:02:06,556 --> 00:02:09,796 Speaker 3: The justification for the death penalty is and it's supposed 30 00:02:09,836 --> 00:02:13,396 Speaker 3: to be the ultimate punishment for the worst crimes, but 31 00:02:13,436 --> 00:02:17,036 Speaker 3: in reality, who gets sentenced to die depends on things 32 00:02:17,036 --> 00:02:21,036 Speaker 3: that often have nothing to do with guilt or innocence. Historically, 33 00:02:21,276 --> 00:02:25,196 Speaker 3: judges have disproportionately sentenced black and Latino people to death. 34 00:02:25,636 --> 00:02:28,356 Speaker 3: A new report from the American Civil Liberties Union released 35 00:02:28,356 --> 00:02:31,156 Speaker 3: in November, found that more than half of the two 36 00:02:31,316 --> 00:02:35,076 Speaker 3: hundred people exonerated from death row since nineteen seventy three 37 00:02:35,316 --> 00:02:39,076 Speaker 3: were black. Executions had been on a steady decline since 38 00:02:39,116 --> 00:02:41,916 Speaker 3: their peak in the late nineteen nineties, but the numbers 39 00:02:41,916 --> 00:02:44,716 Speaker 3: slowly started to creep back up in recent years, more 40 00:02:44,756 --> 00:02:47,836 Speaker 3: than doubling from eleven in twenty twenty one to twenty 41 00:02:47,916 --> 00:02:51,956 Speaker 3: five last year, and we've almost doubled that again this year. 42 00:02:52,436 --> 00:02:55,116 Speaker 3: Several states have stood out in their efforts to ramp 43 00:02:55,236 --> 00:03:00,996 Speaker 3: up executions and conduct them at a faster piece, including Alabama. 44 00:03:01,156 --> 00:03:04,876 Speaker 3: Malcolm Gladwell's new podcast series, The Alabama Murders Dies into 45 00:03:04,956 --> 00:03:08,436 Speaker 3: one case to understand what the system really looks like, 46 00:03:08,876 --> 00:03:11,156 Speaker 3: how it operates, and its inherent brutality. 47 00:03:11,596 --> 00:03:11,956 Speaker 4: Thank you. 48 00:03:11,996 --> 00:03:15,836 Speaker 5: Just got on from work and they come and he said, well, mom, 49 00:03:15,876 --> 00:03:16,396 Speaker 5: can you come? 50 00:03:16,516 --> 00:03:18,196 Speaker 4: He said, the police are here. 51 00:03:19,116 --> 00:03:21,116 Speaker 5: There's no sense in even having a jury. 52 00:03:22,276 --> 00:03:23,756 Speaker 2: If you if you're. 53 00:03:23,596 --> 00:03:26,676 Speaker 5: Going to be able to overturn the jury, if a 54 00:03:26,756 --> 00:03:31,156 Speaker 5: judge can overturn the jury. He said, But I was involved, 55 00:03:31,836 --> 00:03:33,676 Speaker 5: and that's a horrible thing I. 56 00:03:33,556 --> 00:03:34,276 Speaker 4: Was involved in. 57 00:03:35,396 --> 00:03:37,716 Speaker 2: I've been in prison twenty four twenty five years. 58 00:03:37,756 --> 00:03:39,156 Speaker 5: That's probably not long enough. 59 00:03:39,756 --> 00:03:43,316 Speaker 3: I didn't kill them. 60 00:03:43,476 --> 00:03:46,716 Speaker 5: They get burned from the inside, and then glad just 61 00:03:46,916 --> 00:03:50,876 Speaker 5: pours into the lungs and I'm sor he as I'm 62 00:03:50,916 --> 00:03:55,236 Speaker 5: saying this it's awful and this is what this is 63 00:03:55,236 --> 00:03:57,956 Speaker 5: how lethal injection actually kills you. 64 00:03:59,276 --> 00:04:03,396 Speaker 6: Here's what I don't understand. Nobody noticed this till you. 65 00:04:03,476 --> 00:04:04,116 Speaker 5: Apparently not. 66 00:04:05,876 --> 00:04:08,476 Speaker 3: Today we're speaking with Gladwell, who's a writer at The 67 00:04:08,516 --> 00:04:12,156 Speaker 3: New Yorker and co founder of the podcast network Pushkin Industries. 68 00:04:12,596 --> 00:04:16,076 Speaker 3: And we're joined by Intercept senior reporter Lana Segura, who 69 00:04:16,116 --> 00:04:19,476 Speaker 3: has covered capital punishment and criminal justice for two decades. 70 00:04:19,956 --> 00:04:23,116 Speaker 3: We're going to talk about the deeply concerning issues surrounding 71 00:04:23,116 --> 00:04:26,996 Speaker 3: capital punishment. How does the state decide who lives and 72 00:04:27,036 --> 00:04:29,996 Speaker 3: who dies, what happens when the legal system that is 73 00:04:30,036 --> 00:04:32,956 Speaker 3: supposed to catch mistakes doesn't, and what does it all 74 00:04:32,996 --> 00:04:36,916 Speaker 3: say about our country? Malcolm, Lliana, Welcome to the show. 75 00:04:37,076 --> 00:04:39,476 Speaker 2: Thank you, Thank you, Malcolm. 76 00:04:39,716 --> 00:04:44,116 Speaker 3: The series starts by recounting the killing of Elizabeth Sennett, 77 00:04:44,196 --> 00:04:47,516 Speaker 3: but very quickly delves into what happens to the two 78 00:04:47,556 --> 00:04:50,476 Speaker 3: men convicted of killing her, John Parker and Kenny Smith. 79 00:04:50,756 --> 00:04:52,996 Speaker 3: You spend a lot of time in this series explaining, 80 00:04:52,996 --> 00:04:55,916 Speaker 3: sometimes in graphic detail, how the cruelty of the death 81 00:04:55,916 --> 00:05:00,196 Speaker 3: penalty isn't only about the execution, but also about the 82 00:05:00,276 --> 00:05:04,236 Speaker 3: system around it, the paperwork, the waiting. This is not 83 00:05:04,356 --> 00:05:07,196 Speaker 3: the kind of subject matter that you typically tackle. What 84 00:05:07,276 --> 00:05:09,116 Speaker 3: drew you to wanting to report on the death penal 85 00:05:09,556 --> 00:05:10,556 Speaker 3: and criminal justice? 86 00:05:10,756 --> 00:05:14,156 Speaker 6: Well, I wasn't initially intending to do a story about 87 00:05:14,196 --> 00:05:17,796 Speaker 6: the death penalty. I on a kind of whim spend 88 00:05:17,836 --> 00:05:20,596 Speaker 6: a lot of time with Cape Boorderfield, who's the psychologist 89 00:05:20,676 --> 00:05:25,716 Speaker 6: who studies trauma, who shows up halfway through the Alabama murders, 90 00:05:26,076 --> 00:05:28,156 Speaker 6: and I was just interviewing her about because I was 91 00:05:28,196 --> 00:05:32,196 Speaker 6: interested in the treatment of traumatized people, and she just 92 00:05:32,236 --> 00:05:34,116 Speaker 6: happened to mention that she'd been involved with the death 93 00:05:34,116 --> 00:05:37,956 Speaker 6: penalty case, and her description of it was so kind 94 00:05:37,956 --> 00:05:41,276 Speaker 6: of moving and compelling that I realized, Oh, that's the 95 00:05:41,316 --> 00:05:43,636 Speaker 6: story I want to tell. But this did not start 96 00:05:43,676 --> 00:05:46,876 Speaker 6: as a death penalty project. It started as a exploration 97 00:05:46,956 --> 00:05:50,436 Speaker 6: of a psychologist's work, and it kind of took a detour. 98 00:05:51,116 --> 00:05:54,276 Speaker 3: Tell us a little bit more about how the bureaucracy 99 00:05:54,476 --> 00:05:57,476 Speaker 3: around the death penalty masks its inherent cruelty. 100 00:05:58,036 --> 00:06:00,756 Speaker 6: Well, you know, there's a wonderful phrase that one of 101 00:06:00,756 --> 00:06:05,236 Speaker 6: the people we interviewed, Joel's zibitt Uses, and he talks 102 00:06:05,236 --> 00:06:08,356 Speaker 6: about how the death penalty. He was talking about lethal injection. 103 00:06:08,436 --> 00:06:12,116 Speaker 6: But this is also true of nitrogen gas. He said, 104 00:06:12,156 --> 00:06:16,636 Speaker 6: it is the impersonation of a medical act. And I 105 00:06:16,796 --> 00:06:21,076 Speaker 6: think that phrase speaks volumes that a lot of what 106 00:06:21,196 --> 00:06:24,156 Speaker 6: is going on here is a kind of performance that 107 00:06:24,276 --> 00:06:28,636 Speaker 6: is for the benefit of the viewer. It has to 108 00:06:28,676 --> 00:06:32,356 Speaker 6: look acceptable to those who are watching, to those who 109 00:06:32,356 --> 00:06:35,796 Speaker 6: are kind of in society who are judging or observing 110 00:06:35,836 --> 00:06:40,036 Speaker 6: the process. It is the management of perception that is 111 00:06:40,356 --> 00:06:45,396 Speaker 6: compelling and driving the behavior here, not the actual treatment 112 00:06:45,516 --> 00:06:49,636 Speaker 6: of the condemned prisoner him or herself. And once you 113 00:06:49,716 --> 00:06:51,756 Speaker 6: understand that, oh, it's a performance and a lot of 114 00:06:51,756 --> 00:06:54,676 Speaker 6: it makes sense. One of the crucial moments in a 115 00:06:54,716 --> 00:06:58,876 Speaker 6: story we tell is you know where there is a 116 00:06:58,956 --> 00:07:02,476 Speaker 6: hearing in which the attorneys for Kenny Smith are trying 117 00:07:02,516 --> 00:07:06,076 Speaker 6: to get a stay of execution, and they start asking 118 00:07:06,156 --> 00:07:08,716 Speaker 6: the State of Alabama, the corrections people in the state 119 00:07:08,756 --> 00:07:12,876 Speaker 6: of Alibe, Obama, to explain, did they understand what they 120 00:07:12,876 --> 00:07:15,396 Speaker 6: would do this was they were contemplating the use of 121 00:07:15,476 --> 00:07:19,396 Speaker 6: nitrogen gas. Did they ever talk to a doctor about 122 00:07:19,516 --> 00:07:23,716 Speaker 6: the risks associated with it? Did they ever contemplate any 123 00:07:23,756 --> 00:07:26,636 Speaker 6: of the potential side effects? And it turns out they 124 00:07:26,636 --> 00:07:29,396 Speaker 6: had done none. Of that, and it makes sense when 125 00:07:29,396 --> 00:07:33,156 Speaker 6: you realize that's not what they're interested in. They're interested 126 00:07:33,196 --> 00:07:37,356 Speaker 6: in the impersonation of a medical act, not the implementation 127 00:07:37,436 --> 00:07:41,076 Speaker 6: of a medical act. The bureaucracy is there to make 128 00:07:41,116 --> 00:07:43,236 Speaker 6: it look good. And that was one of the compelling 129 00:07:43,316 --> 00:07:44,156 Speaker 6: lessons of the piece. 130 00:07:45,196 --> 00:07:48,236 Speaker 3: And it's impersonating a medical act with people who are 131 00:07:48,236 --> 00:07:50,996 Speaker 3: not doctors, right, Like, people who are not do not 132 00:07:51,076 --> 00:07:51,556 Speaker 3: have this train. 133 00:07:51,756 --> 00:07:52,236 Speaker 4: Yeah. 134 00:07:52,316 --> 00:07:55,116 Speaker 6: In that hearing, there is this real incredible moment where 135 00:07:55,356 --> 00:07:58,196 Speaker 6: one of the attorneys asks the man who heads Alabama's 136 00:07:58,236 --> 00:08:01,476 Speaker 6: Department of Corrections, did you ever consult with any medical 137 00:08:01,516 --> 00:08:07,196 Speaker 6: personnel about the choice of execution method and its possible problems? 138 00:08:07,356 --> 00:08:09,796 Speaker 6: And the guy says no. And it's just like that, 139 00:08:09,876 --> 00:08:12,876 Speaker 6: you just realize they're just mailing it in, like they 140 00:08:12,916 --> 00:08:17,556 Speaker 6: have no State of Alabama is like, is not interested 141 00:08:17,676 --> 00:08:21,036 Speaker 6: in exploring the kind of full implications of what they're doing. 142 00:08:21,396 --> 00:08:24,476 Speaker 6: They're just engaged in this kind of incredibly sort of 143 00:08:25,116 --> 00:08:26,316 Speaker 6: slap dash operation. 144 00:08:27,276 --> 00:08:28,876 Speaker 2: Well, and I want to bring you in here. 145 00:08:28,916 --> 00:08:32,476 Speaker 3: You've spent years reporting on capital punishment in the US 146 00:08:32,516 --> 00:08:34,916 Speaker 3: and looked into many cases in different states. 147 00:08:35,516 --> 00:08:37,796 Speaker 2: Why are states like Florida. 148 00:08:37,396 --> 00:08:41,196 Speaker 3: And Alabama ramping up the number of executions. Is it 149 00:08:41,276 --> 00:08:44,196 Speaker 3: all politics? What's going on there? 150 00:08:44,836 --> 00:08:48,116 Speaker 4: Yeah, So that is one of the questions that I 151 00:08:48,156 --> 00:08:50,556 Speaker 4: think a lot of us who cover this stuff have 152 00:08:50,676 --> 00:08:54,156 Speaker 4: been asking ourselves all year long, and to some degree, 153 00:08:54,196 --> 00:08:56,676 Speaker 4: it's always politics. The story of the death penalty, the 154 00:08:56,676 --> 00:09:00,076 Speaker 4: story of executions so often really boils down to that 155 00:09:00,436 --> 00:09:04,276 Speaker 4: we are in a political moment right now where the 156 00:09:04,396 --> 00:09:08,516 Speaker 4: climate around executions certainly, but I think in general, the 157 00:09:08,636 --> 00:09:13,436 Speaker 4: kind of appetite for our promotion of vengeance and sort 158 00:09:13,516 --> 00:09:18,916 Speaker 4: of brutality towards our enemies is really shockingly real right now. 159 00:09:18,996 --> 00:09:21,996 Speaker 4: And I was reluctant about a year ago to really 160 00:09:22,596 --> 00:09:26,516 Speaker 4: trace our current moment to Trump. Right the death penalty 161 00:09:26,676 --> 00:09:29,516 Speaker 4: has been a bipartisan project. I don't want to pretend 162 00:09:29,676 --> 00:09:32,356 Speaker 4: like this is something that begins and ends with somebody 163 00:09:32,396 --> 00:09:36,636 Speaker 4: like Trump that said, you know, it's really shocking to 164 00:09:36,756 --> 00:09:40,156 Speaker 4: see the number of executions that are being pushed through, 165 00:09:40,836 --> 00:09:43,876 Speaker 4: especially in Florida, and this is something that has been 166 00:09:43,956 --> 00:09:48,156 Speaker 4: ramped up by Governor DeSantis for purely political reasons. You know, 167 00:09:48,236 --> 00:09:51,556 Speaker 4: this death penalty push in Florida began with his political 168 00:09:51,596 --> 00:09:54,356 Speaker 4: ambitions when he was originally going to run for president, 169 00:09:54,476 --> 00:09:57,596 Speaker 4: and I think that that to some degree is a 170 00:09:57,636 --> 00:10:00,956 Speaker 4: story behind a lot of death penalty policy, certainly going 171 00:10:00,996 --> 00:10:04,156 Speaker 4: back decades, and certainly speaks to the moment we're in. 172 00:10:04,756 --> 00:10:07,356 Speaker 4: I did want to just also touch on some of 173 00:10:07,356 --> 00:10:09,316 Speaker 4: what Malcolm was talking about when it comes to to 174 00:10:10,116 --> 00:10:14,316 Speaker 4: the performance, you know, of executions themselves. Over the past 175 00:10:14,396 --> 00:10:19,196 Speaker 4: many years, I've reported on litigation death penalty trials that 176 00:10:19,316 --> 00:10:22,356 Speaker 4: have taken place in states like Oklahoma and here in 177 00:10:22,396 --> 00:10:25,716 Speaker 4: Tennessee where I live, where we restarted executions some years 178 00:10:25,756 --> 00:10:27,796 Speaker 4: ago after a long time of not carrying any out 179 00:10:28,236 --> 00:10:31,596 Speaker 4: and these trials had at the center the three drug 180 00:10:31,636 --> 00:10:35,956 Speaker 4: protocol that is described so thoroughly in the podcast. And 181 00:10:36,116 --> 00:10:40,716 Speaker 4: it is absolutely true that these are protocols that are 182 00:10:41,036 --> 00:10:43,436 Speaker 4: sort of designed with all of these different steps and 183 00:10:43,476 --> 00:10:45,676 Speaker 4: all of these different parts and made to look, you know, 184 00:10:46,036 --> 00:10:48,796 Speaker 4: using the tools of medicine to kill, and made to 185 00:10:48,836 --> 00:10:51,036 Speaker 4: look like this has really been thought through. But when 186 00:10:51,036 --> 00:10:53,556 Speaker 4: you really trace that history as you do Malcolm in 187 00:10:53,596 --> 00:10:56,836 Speaker 4: your podcast, there's no there there. I mean, these were 188 00:10:56,876 --> 00:11:02,676 Speaker 4: invented for the purpose of having a humane appearing protocol, 189 00:11:02,916 --> 00:11:06,316 Speaker 4: humane appearing method, and it sort of amounts to junk science. 190 00:11:06,356 --> 00:11:09,396 Speaker 4: There was no way to test these methods. There was 191 00:11:09,436 --> 00:11:12,636 Speaker 4: no nobody can tell us, as you describe in your podcast, 192 00:11:12,636 --> 00:11:16,836 Speaker 4: what it feels like to, you know, undergo this execution process. 193 00:11:17,156 --> 00:11:19,476 Speaker 4: And I think it's really important to remember that this 194 00:11:19,596 --> 00:11:21,516 Speaker 4: is not only the story of lethal injection. This is 195 00:11:21,516 --> 00:11:24,276 Speaker 4: a story of executions, you know, sort of writ large. 196 00:11:24,916 --> 00:11:28,476 Speaker 4: When the electric chair came on the scene generations ago, 197 00:11:28,916 --> 00:11:32,636 Speaker 4: it was also touted as the height of technology because 198 00:11:32,676 --> 00:11:35,636 Speaker 4: it was using electricity and it was supposed to be 199 00:11:35,876 --> 00:11:38,436 Speaker 4: more humane than hanging. There had been botched hangings that 200 00:11:38,476 --> 00:11:41,716 Speaker 4: were seen as gruesome ordeals, you know. So there's this 201 00:11:41,796 --> 00:11:44,476 Speaker 4: bizarre way in which history repeats itself when it comes 202 00:11:44,476 --> 00:11:46,476 Speaker 4: to these methods that are promoted as you know, the 203 00:11:46,516 --> 00:11:50,436 Speaker 4: height of modernity and humanity, and it's just completely bankrupt 204 00:11:50,596 --> 00:11:51,156 Speaker 4: and false. 205 00:11:51,836 --> 00:11:54,316 Speaker 6: Malcolm, do you want to add something, Yeah, I mean 206 00:11:54,716 --> 00:11:57,516 Speaker 6: we have a big focus in the case I'm describing. 207 00:11:57,716 --> 00:12:01,836 Speaker 6: Kenny Smith was notorious because he had a botched execution 208 00:12:01,876 --> 00:12:04,716 Speaker 6: where they couldn't find a vein. And one of the 209 00:12:04,756 --> 00:12:07,836 Speaker 6: points that Joel as if it makes is that, well, 210 00:12:07,836 --> 00:12:11,116 Speaker 6: of course, they's not surprising that they in that case 211 00:12:11,156 --> 00:12:13,556 Speaker 6: and in many others, they can't find a vein, because 212 00:12:13,956 --> 00:12:17,196 Speaker 6: that is a medical procedure that is designed to be 213 00:12:17,836 --> 00:12:23,316 Speaker 6: undertaken in a hospital setting by trained personnel with the 214 00:12:23,356 --> 00:12:26,996 Speaker 6: cooperation of the patient. Right. Usually we'd find a vein 215 00:12:27,036 --> 00:12:29,756 Speaker 6: and the patient cooperates because it's there we're trying to 216 00:12:29,796 --> 00:12:32,676 Speaker 6: save their life or make them healthier. This is a 217 00:12:32,836 --> 00:12:36,396 Speaker 6: use of this procedure that is completely different. It is 218 00:12:36,676 --> 00:12:39,556 Speaker 6: outside of a medical institution, not being done by people 219 00:12:39,556 --> 00:12:43,196 Speaker 6: who are experienced medical professionals, and is not being done 220 00:12:43,236 --> 00:12:46,636 Speaker 6: with the cooperation of the patient. Right. The patient in 221 00:12:46,636 --> 00:12:49,076 Speaker 6: this case is a condemned prisoner who is not in 222 00:12:49,116 --> 00:12:52,436 Speaker 6: the same situation as someone who's ill and trying. 223 00:12:52,196 --> 00:12:52,716 Speaker 4: To get better. 224 00:12:53,476 --> 00:12:56,316 Speaker 2: I want to just walk our listeners through this. 225 00:12:56,436 --> 00:12:59,876 Speaker 3: So this is again one of the pieces of the series, 226 00:13:00,196 --> 00:13:03,076 Speaker 3: this three drug protocol. First there's a sedative, then there's 227 00:13:03,116 --> 00:13:06,636 Speaker 3: a paralytic, and then there's finally a potassium chloride which 228 00:13:06,636 --> 00:13:07,916 Speaker 3: is supposed to stop the heart. 229 00:13:08,676 --> 00:13:11,596 Speaker 2: How did that protocol come to be developed? 230 00:13:12,356 --> 00:13:16,076 Speaker 6: It was dreamt up in an afternoon in Oklahoma in 231 00:13:16,116 --> 00:13:21,156 Speaker 6: the nineteen seventies by a state senator and the Oklahoma 232 00:13:21,196 --> 00:13:25,236 Speaker 6: Medical Examiner who were just kind of spitballing about how 233 00:13:25,276 --> 00:13:28,636 Speaker 6: they might replace the electric chair with something quote more 234 00:13:28,716 --> 00:13:31,636 Speaker 6: humane unquote, and their model was, well, why don't we 235 00:13:31,676 --> 00:13:35,716 Speaker 6: do for humans what we do with horses, which was 236 00:13:35,756 --> 00:13:38,916 Speaker 6: a suggestion that had come from Ronald Reagan, then governor 237 00:13:38,916 --> 00:13:41,956 Speaker 6: of California. So they just sort of generally thought, well, 238 00:13:42,636 --> 00:13:45,356 Speaker 6: we can do a version of what we do in 239 00:13:45,396 --> 00:13:49,916 Speaker 6: those instances, only we'll just ramp up the dose. You know, 240 00:13:49,996 --> 00:13:51,956 Speaker 6: this is also what kind of anesthesia. 241 00:13:52,076 --> 00:13:54,956 Speaker 3: Sometimes this is advertised as something that is supposed to 242 00:13:55,036 --> 00:13:56,356 Speaker 3: be painless. 243 00:13:56,436 --> 00:13:58,356 Speaker 6: Yeah, they had been using and these drugs were also 244 00:13:58,556 --> 00:14:02,516 Speaker 6: in use in the medical setting. But their idea was 245 00:14:02,556 --> 00:14:05,516 Speaker 6: we'll take a protocol that loosely based on what is 246 00:14:05,596 --> 00:14:08,916 Speaker 6: used in a medical setting and ramp up the doses 247 00:14:09,356 --> 00:14:12,676 Speaker 6: so that instead of merely sedating somebody or killing them. 248 00:14:13,356 --> 00:14:19,156 Speaker 6: And it wasn't thought through, tested, analyzed, peer reviewed. It 249 00:14:19,236 --> 00:14:23,076 Speaker 6: was literally two guys dreaming up something in the back 250 00:14:23,076 --> 00:14:26,116 Speaker 6: of an envelope, and one of the guys, the medical examiner, 251 00:14:26,756 --> 00:14:30,436 Speaker 6: later regretted his part in the whole procedure, but the 252 00:14:30,516 --> 00:14:33,996 Speaker 6: genie was out of the bottle and everybody jumped on 253 00:14:34,076 --> 00:14:38,116 Speaker 6: this as an advance over the previous iteration of killing technology. 254 00:14:39,316 --> 00:14:41,516 Speaker 2: In addition to being advertised as painless. 255 00:14:41,556 --> 00:14:43,316 Speaker 3: It's also supposed to be within the bounds of the 256 00:14:43,396 --> 00:14:46,436 Speaker 3: Eighth Amendment protection against Cruel and Unusual punishment. 257 00:14:46,636 --> 00:14:47,676 Speaker 2: Can you tell us about that? 258 00:14:48,276 --> 00:14:54,036 Speaker 6: Yeah, Well, in order to satisfy that prohibition against cruel 259 00:14:54,076 --> 00:14:57,156 Speaker 6: and unusual punishment, you have to have some insight as 260 00:14:57,196 --> 00:15:00,876 Speaker 6: to what the condemned prisoner is going through when they 261 00:15:00,876 --> 00:15:05,156 Speaker 6: are being subjected to this protocol. The universe of people 262 00:15:05,196 --> 00:15:11,716 Speaker 6: engaged in the Capital Punishment Project were universally indifferent to 263 00:15:11,876 --> 00:15:15,316 Speaker 6: trying to find out how exactly this worked. They weren't 264 00:15:15,476 --> 00:15:18,996 Speaker 6: curious at all to figure out, for example, was there 265 00:15:19,036 --> 00:15:22,676 Speaker 6: any suffering that was associated with this three drug protocol? 266 00:15:22,956 --> 00:15:25,516 Speaker 6: Or which of the three drugs is killing you? Or 267 00:15:25,716 --> 00:15:27,036 Speaker 6: I mean, I could go on and on and on. 268 00:15:27,236 --> 00:15:30,636 Speaker 6: Were they just implemented it and because it looked good 269 00:15:30,676 --> 00:15:33,676 Speaker 6: for me outside, Because you have given someone a sedative 270 00:15:33,676 --> 00:15:38,356 Speaker 6: and a paralytic, it's impossible to tell from the outside 271 00:15:38,716 --> 00:15:41,796 Speaker 6: whether they're going through any kind of suffering. It was 272 00:15:41,836 --> 00:15:44,276 Speaker 6: just assume that there should be no there must be 273 00:15:44,316 --> 00:15:47,836 Speaker 6: no suffering going on on the inside. And the Eighth 274 00:15:47,836 --> 00:15:51,356 Speaker 6: Amendment does not say that people should not be subjected 275 00:15:51,356 --> 00:15:56,516 Speaker 6: to the appearance of cruel and unusual punishment. It says no, No, 276 00:15:56,836 --> 00:16:00,556 Speaker 6: the actual punishment itself for the individual should not be 277 00:16:00,596 --> 00:16:03,236 Speaker 6: cruel and unusual. So there was at no point could 278 00:16:03,276 --> 00:16:07,196 Speaker 6: anyone in the early history of this did anyone truly 279 00:16:07,236 --> 00:16:10,116 Speaker 6: satisfy the intent of the Eighth Amendment. 280 00:16:10,796 --> 00:16:13,596 Speaker 3: Well, Leanna, you've written a lot about this protocol as well, 281 00:16:13,596 --> 00:16:15,916 Speaker 3: and the Supreme Court has taken a stance on it. 282 00:16:15,996 --> 00:16:18,836 Speaker 4: Tell us about that. Yeah, So, one thing that's really 283 00:16:18,836 --> 00:16:22,476 Speaker 4: important to understand about the Eighth Amendment and the death 284 00:16:22,476 --> 00:16:25,196 Speaker 4: penalty in this country is that the US Supreme Court 285 00:16:25,236 --> 00:16:28,516 Speaker 4: has weighed in on the death penalty numerous times, including 286 00:16:28,916 --> 00:16:34,036 Speaker 4: but has never invalidated a method of execution as violating 287 00:16:34,076 --> 00:16:36,916 Speaker 4: the Eighth Amendment ban on cruel and unusual punishment. And 288 00:16:37,036 --> 00:16:39,636 Speaker 4: that fact right there, I think speaks volumes. But one 289 00:16:39,636 --> 00:16:41,916 Speaker 4: of the cases that I go back to over and 290 00:16:41,956 --> 00:16:44,916 Speaker 4: over again in my work about lethal injection and about 291 00:16:44,916 --> 00:16:48,116 Speaker 4: other execution methods dates back to the nineteen forties, and 292 00:16:48,156 --> 00:16:51,396 Speaker 4: it's a case involving a man named Willie Francis, who 293 00:16:51,476 --> 00:16:54,756 Speaker 4: was a teenager, black teenager who had been condemned to 294 00:16:54,836 --> 00:16:57,876 Speaker 4: die in Louisiana. They sent him to the electric chair 295 00:16:57,956 --> 00:17:01,436 Speaker 4: in nineteen forty six, and he survived. He survived their 296 00:17:01,476 --> 00:17:05,396 Speaker 4: initial attempts to execute him. It's a grotesque ordeal. There's 297 00:17:05,436 --> 00:17:08,796 Speaker 4: been a lot written historically about this, but that case, 298 00:17:08,836 --> 00:17:12,636 Speaker 4: they the execution. He appealed to the US Supreme Court 299 00:17:13,076 --> 00:17:16,476 Speaker 4: and a majority of justices found that attempting to kill 300 00:17:16,516 --> 00:17:19,436 Speaker 4: him again wouldn't violate the Eighth Amendment, and they sent 301 00:17:19,556 --> 00:17:23,036 Speaker 4: him back in nineteen forty seven. They succeeded in killing him. 302 00:17:23,076 --> 00:17:25,276 Speaker 4: But the language that comes out of the court in 303 00:17:25,356 --> 00:17:29,196 Speaker 4: this case really goes a long way to helping us 304 00:17:29,276 --> 00:17:31,476 Speaker 4: understand how we ended up where we are now. You know, 305 00:17:31,516 --> 00:17:35,756 Speaker 4: they essentially said accidents happen, accidents happened for which no 306 00:17:36,076 --> 00:17:39,116 Speaker 4: man is to blame. And there's another turn of phrase 307 00:17:39,116 --> 00:17:44,156 Speaker 4: that's really galling in which essentially they call this ordeal 308 00:17:44,236 --> 00:17:48,476 Speaker 4: that he suffered an innocent misadventure. And this language, this 309 00:17:48,556 --> 00:17:51,436 Speaker 4: idea is that this was an innocent misadventure, finds its 310 00:17:51,436 --> 00:17:55,436 Speaker 4: way into subsequent rulings decades later. So in two thousand 311 00:17:55,476 --> 00:17:58,196 Speaker 4: and eight, I believe it was the US Supreme Court 312 00:17:58,236 --> 00:18:00,556 Speaker 4: took up the three Drug Protocol, which at the time 313 00:18:00,796 --> 00:18:03,276 Speaker 4: was being used by Kentucky. This was a case called 314 00:18:03,316 --> 00:18:07,076 Speaker 4: Bays versus Rees, and there was a lot of evidence. 315 00:18:07,116 --> 00:18:09,436 Speaker 4: There was a lot that the justices had to look 316 00:18:09,476 --> 00:18:11,996 Speaker 4: at that should have given them pause about the fact 317 00:18:11,996 --> 00:18:14,556 Speaker 4: that this protocol was not rooted in science, that there 318 00:18:14,556 --> 00:18:18,516 Speaker 4: had been many botched executions in terms of the inability 319 00:18:18,516 --> 00:18:21,076 Speaker 4: to find a vein, in terms of evidence that people 320 00:18:21,116 --> 00:18:24,556 Speaker 4: were suffering on the gurney. The US Supreme Court upheld 321 00:18:24,636 --> 00:18:27,636 Speaker 4: that protocol, and yet right around the time that they 322 00:18:27,636 --> 00:18:31,156 Speaker 4: handed down that ruling, states began sort of tinkering with 323 00:18:31,316 --> 00:18:33,876 Speaker 4: the lethal injection protocol that had been the prevailing method 324 00:18:33,916 --> 00:18:36,516 Speaker 4: for so long. Without getting too deep in the weeds, 325 00:18:36,836 --> 00:18:40,516 Speaker 4: the initial drug, the drug that was supposed tonestize people 326 00:18:40,556 --> 00:18:44,676 Speaker 4: who were being killed by lethal injection, had been originally 327 00:18:44,676 --> 00:18:47,756 Speaker 4: a drug called sodium thiopental, which was thought to be 328 00:18:47,756 --> 00:18:52,076 Speaker 4: believed to be, for good reasons, something that could basically 329 00:18:52,076 --> 00:18:54,716 Speaker 4: put a person under and where they wouldn't necessarily feel 330 00:18:54,756 --> 00:18:58,956 Speaker 4: the noxious effects of the subsequent drugs. States were unable 331 00:18:58,956 --> 00:19:01,116 Speaker 4: to get their hands on this drug for a number 332 00:19:01,116 --> 00:19:04,196 Speaker 4: of reasons and subsequently began sort of swapping out other 333 00:19:04,276 --> 00:19:08,316 Speaker 4: drugs to replace that drug, and different states tried different things. 334 00:19:09,156 --> 00:19:12,316 Speaker 4: A number of states eventually settled on this drug called medaslum, 335 00:19:12,316 --> 00:19:14,436 Speaker 4: which is a sedative which does not have the same 336 00:19:14,516 --> 00:19:18,236 Speaker 4: properties as the previous drug and has been over and 337 00:19:18,236 --> 00:19:20,156 Speaker 4: over again experts have said that this is not a 338 00:19:20,236 --> 00:19:23,356 Speaker 4: drug that's going to be effective in providing and anesetizing 339 00:19:23,396 --> 00:19:25,956 Speaker 4: people for the purpose of lethal injection, and the Supreme 340 00:19:25,996 --> 00:19:29,636 Speaker 4: Court was once again ruled that this was true. In Oklahoma, 341 00:19:29,716 --> 00:19:32,956 Speaker 4: this was the case Golossip versus gross which the Supreme 342 00:19:32,996 --> 00:19:35,716 Speaker 4: Court heard after there had been a very high profile, 343 00:19:36,076 --> 00:19:39,436 Speaker 4: really gruesome botched execution a man named Clayton Lockett, who 344 00:19:39,516 --> 00:19:42,436 Speaker 4: was executed in twenty fourteen. This ended up going up 345 00:19:42,436 --> 00:19:45,196 Speaker 4: to the Supreme Court, and I covered that oral argument, 346 00:19:45,276 --> 00:19:47,436 Speaker 4: and what was really kind of astonishing about that oral 347 00:19:47,516 --> 00:19:50,676 Speaker 4: argument wasn't just how grotesque it all was, but the 348 00:19:50,716 --> 00:19:54,276 Speaker 4: fact that the justices were very clearly very annoyed, very 349 00:19:54,316 --> 00:19:57,116 Speaker 4: cranky about the fact that, you know, only a few 350 00:19:57,196 --> 00:19:59,876 Speaker 4: years after having upheld this three drug protocol, now they're 351 00:19:59,876 --> 00:20:02,556 Speaker 4: having to deal with this thing again, and they again 352 00:20:02,636 --> 00:20:05,956 Speaker 4: they upheld this protocol despite a lot of evidence that 353 00:20:06,036 --> 00:20:08,796 Speaker 4: this was completely inhumane, that there was a lot of 354 00:20:08,796 --> 00:20:11,436 Speaker 4: reasons to be concerned that people were suffering on the 355 00:20:11,436 --> 00:20:15,116 Speaker 4: gurney while being put to death by lethal injection. And 356 00:20:15,156 --> 00:20:17,316 Speaker 4: so the reason I go back to the Willy Francis 357 00:20:17,356 --> 00:20:19,036 Speaker 4: case is that it really tells us everything that we 358 00:20:19,116 --> 00:20:22,316 Speaker 4: need to know, which is that if you have decided 359 00:20:22,476 --> 00:20:24,996 Speaker 4: that people condemned to die in this country are less 360 00:20:24,996 --> 00:20:27,956 Speaker 4: than human and that their suffering doesn't matter, then there's 361 00:20:27,996 --> 00:20:31,796 Speaker 4: no limits on what you are willing to tolerate and 362 00:20:31,876 --> 00:20:35,796 Speaker 4: uphold in sort of upholding this death protocol that we've 363 00:20:35,796 --> 00:20:39,316 Speaker 4: invented in this country. And so the Supreme Court has 364 00:20:39,356 --> 00:20:41,636 Speaker 4: weighed not only on the three Drug Protocol but on 365 00:20:41,756 --> 00:20:44,636 Speaker 4: execution methods in general, and they have always found that 366 00:20:44,676 --> 00:20:46,076 Speaker 4: there's not really a problem here. 367 00:20:46,876 --> 00:20:49,796 Speaker 6: Say, at a certain point, it becomes obvious that the 368 00:20:49,836 --> 00:20:54,276 Speaker 6: cruelty is the point the Eighth Amendment does not actually 369 00:20:54,316 --> 00:20:57,236 Speaker 6: have any kind of impact on their thinking, because they 370 00:20:57,236 --> 00:21:01,236 Speaker 6: are anxious to preserve the very thing about capital punishment 371 00:21:01,556 --> 00:21:03,836 Speaker 6: that is so morally noxious, which is. 372 00:21:03,796 --> 00:21:06,836 Speaker 2: That it's cruel, Right, Malcolm. 373 00:21:06,956 --> 00:21:09,676 Speaker 3: One interesting thing that you talk about in the series 374 00:21:09,756 --> 00:21:14,796 Speaker 3: is this concept of judicial override in Alabama, where a 375 00:21:14,876 --> 00:21:18,156 Speaker 3: judge was able to impose a death sentence even if 376 00:21:18,196 --> 00:21:20,876 Speaker 3: the jury recommended life in prison. This went on until 377 00:21:20,956 --> 00:21:25,036 Speaker 3: twenty seventeen. As we know, death penalty cases can take decades, 378 00:21:25,076 --> 00:21:27,756 Speaker 3: so it's possible that there are still people on death 379 00:21:27,836 --> 00:21:31,116 Speaker 3: row who have been impacted by judicial override. What's your 380 00:21:31,156 --> 00:21:36,156 Speaker 3: sense about how judges who went that route justified their decisions, 381 00:21:36,236 --> 00:21:37,076 Speaker 3: if at all. 382 00:21:37,276 --> 00:21:40,436 Speaker 6: Yeah. So, Alabama was one of a number of a 383 00:21:40,516 --> 00:21:44,236 Speaker 6: small number of states who, in response to the Supreme 384 00:21:44,276 --> 00:21:50,516 Speaker 6: Court's hesitancy about capital punishment in the nineteen seventies, instituted 385 00:21:50,916 --> 00:21:56,516 Speaker 6: rules which said that a judge can override a jury's 386 00:21:56,796 --> 00:22:00,676 Speaker 6: sentencing determination in a capital case. So if a jury 387 00:22:00,716 --> 00:22:04,876 Speaker 6: says we want life imprisonment without parole, the judge could 388 00:22:04,876 --> 00:22:08,476 Speaker 6: impose the death penalty, or vice versa. The motivation for 389 00:22:08,516 --> 00:22:11,916 Speaker 6: these series of override laws, and are only about three 390 00:22:11,956 --> 00:22:15,556 Speaker 6: or four states at Florida, Alabama, a couple of others 391 00:22:15,916 --> 00:22:19,116 Speaker 6: had them, is kind of murky, but I suspect what 392 00:22:19,156 --> 00:22:22,676 Speaker 6: they wanted to do was to guard against the possibility 393 00:22:22,676 --> 00:22:27,556 Speaker 6: that juries would become overwhelmingly lenient. The concern was that 394 00:22:27,556 --> 00:22:31,796 Speaker 6: if the public sentiment was moving away from death penalty 395 00:22:32,116 --> 00:22:34,796 Speaker 6: to the extent that it would be difficult to impose 396 00:22:34,836 --> 00:22:39,436 Speaker 6: the death penalty in capital cases unless you allowed judges 397 00:22:40,156 --> 00:22:45,356 Speaker 6: to independently assert their opinion when it came to sentencing. 398 00:22:45,716 --> 00:22:48,276 Speaker 6: And I also suspect that there's to be in saints 399 00:22:48,276 --> 00:22:50,356 Speaker 6: like Alabama, there was a little bit of a racial 400 00:22:50,396 --> 00:22:54,076 Speaker 6: motivation that they thought that black jeries would be unlikely 401 00:22:54,556 --> 00:22:56,596 Speaker 6: to vote for the death penalty for black defendants, and 402 00:22:56,596 --> 00:23:00,596 Speaker 6: they wanted to reserve the right to act in those cases. 403 00:23:00,996 --> 00:23:03,756 Speaker 6: And what happens in Alabama is that other states gradually 404 00:23:03,796 --> 00:23:07,756 Speaker 6: abandon this policy, but Alabama sticks to it. And Alabama 405 00:23:07,796 --> 00:23:10,316 Speaker 6: sticks not only that they have the most extreme version 406 00:23:10,356 --> 00:23:12,916 Speaker 6: of it. They basically allow the judge to overrule under 407 00:23:12,956 --> 00:23:17,116 Speaker 6: any circumstances without giving an explanation for why. And when 408 00:23:17,116 --> 00:23:19,596 Speaker 6: they finally get rid of this, they don't make it retroactive, 409 00:23:20,196 --> 00:23:22,716 Speaker 6: so they only say going forward, we're not going to 410 00:23:22,716 --> 00:23:25,836 Speaker 6: do override, but we're not going to spare people who 411 00:23:25,876 --> 00:23:28,836 Speaker 6: have already who are on death row now because of override, 412 00:23:29,276 --> 00:23:31,916 Speaker 6: We're not going to spare their lives. And it raises 413 00:23:31,956 --> 00:23:33,876 Speaker 6: this question of what you know. The reason we call 414 00:23:34,356 --> 00:23:37,676 Speaker 6: our series the Alabama Murders is that when you look 415 00:23:37,796 --> 00:23:41,956 Speaker 6: very closely at the case we're interested in, you quickly 416 00:23:41,996 --> 00:23:47,116 Speaker 6: come to the conclusion there's something particularly barbaric about the 417 00:23:47,156 --> 00:23:50,316 Speaker 6: political culture of Alabama. I'm not news by the way, 418 00:23:50,316 --> 00:23:54,956 Speaker 6: for anyone who knows any about Alabama, but Alabama's it's 419 00:23:54,996 --> 00:23:57,956 Speaker 6: its own thing, you know, and they remain to this 420 00:23:58,116 --> 00:24:01,436 Speaker 6: day kind of clinging to this notion that they need 421 00:24:01,476 --> 00:24:07,116 Speaker 6: every possible defense against the possibility that a convicted murderer 422 00:24:07,436 --> 00:24:08,716 Speaker 6: could escape with his life. 423 00:24:09,236 --> 00:24:09,396 Speaker 4: Right. 424 00:24:11,196 --> 00:24:14,436 Speaker 3: Speaking of just this idea of the title of the show, 425 00:24:14,476 --> 00:24:16,396 Speaker 3: I also want to bring up that I did not 426 00:24:16,556 --> 00:24:19,036 Speaker 3: know that the autopsy and an execution, and I don't 427 00:24:19,036 --> 00:24:20,996 Speaker 3: know that this is unique to Alabama, but that it 428 00:24:21,036 --> 00:24:23,676 Speaker 3: marks the death as a homicide. I was actually shocked 429 00:24:23,716 --> 00:24:24,116 Speaker 3: to hear that. 430 00:24:24,396 --> 00:24:27,556 Speaker 6: Yes, that interesting. That is the one moment of the 431 00:24:27,596 --> 00:24:31,116 Speaker 6: one moment of honesty, right, and self awareness in this 432 00:24:31,356 --> 00:24:32,636 Speaker 6: entire process. 433 00:24:32,716 --> 00:24:34,756 Speaker 3: Right, And that's why it's it's shocking. It's not shocking 434 00:24:34,796 --> 00:24:37,196 Speaker 3: because we know it's a homicide. It's shocking because they're 435 00:24:37,196 --> 00:24:39,476 Speaker 3: admitting to it in a record that is, you know, 436 00:24:39,516 --> 00:24:42,716 Speaker 3: accessible to the public at some point after a quick break. 437 00:24:42,836 --> 00:24:45,956 Speaker 3: More from Malcolm Gladwell, journalist, author and host of the 438 00:24:45,996 --> 00:24:50,076 Speaker 3: new Pushkin podcast The Alabama Murders, and Intercept Senior reporter 439 00:24:50,276 --> 00:25:01,276 Speaker 3: Liliana Segura. Malcolm, you mentioned the racial dynamic with Alabama 440 00:25:01,356 --> 00:25:03,516 Speaker 3: in particular, but Lilian, I want to ask if you 441 00:25:03,516 --> 00:25:07,116 Speaker 3: could maybe speak to the historic link between sort of 442 00:25:07,196 --> 00:25:09,876 Speaker 3: the development of the death penalty and the history of 443 00:25:10,076 --> 00:25:11,316 Speaker 3: lynching in the South. 444 00:25:12,236 --> 00:25:17,196 Speaker 4: So it's really interesting Alabama is in many ways the 445 00:25:17,236 --> 00:25:22,316 Speaker 4: poster child for this line that can be drawn between 446 00:25:22,596 --> 00:25:26,316 Speaker 4: not only lynching, but slavery to lynching, to reconstruction to 447 00:25:26,516 --> 00:25:31,196 Speaker 4: state sanctioned murder. And that's kind of an uneasy line 448 00:25:31,196 --> 00:25:33,556 Speaker 4: to draw in the sense of, you know, there's a 449 00:25:33,596 --> 00:25:35,556 Speaker 4: reason that Brian Stephenson, who is the head of the 450 00:25:35,596 --> 00:25:39,036 Speaker 4: Equal Justice Initiative, has called it a penalty the step 451 00:25:39,156 --> 00:25:41,636 Speaker 4: child of lynching. He calls it the step child of lynching, 452 00:25:41,636 --> 00:25:44,396 Speaker 4: and it's because, you know, there's something of an indirect link, 453 00:25:44,476 --> 00:25:47,836 Speaker 4: but it's an absolutely it's that link is real and 454 00:25:47,836 --> 00:25:51,156 Speaker 4: you really see it in Alabama and certainly in the South. 455 00:25:51,876 --> 00:25:55,276 Speaker 4: And so I think it was in twenty eighteen I 456 00:25:55,276 --> 00:25:57,596 Speaker 4: went down to Montgomery a number of times for the 457 00:25:57,636 --> 00:26:02,116 Speaker 4: opening of Eji's memorial, you know, lynching memorial that they 458 00:26:02,116 --> 00:26:04,556 Speaker 4: had launched there, and this was a major event and 459 00:26:04,596 --> 00:26:06,796 Speaker 4: at the time I went with sort of this this 460 00:26:06,876 --> 00:26:08,996 Speaker 4: link in mind to try to sort of interrogate and 461 00:26:09,236 --> 00:26:11,356 Speaker 4: understand this history a little bit better, and I ended 462 00:26:11,436 --> 00:26:13,556 Speaker 4: up writing this big, long piece which I only recently 463 00:26:13,556 --> 00:26:15,356 Speaker 4: went back to reread because it's not fresh in my 464 00:26:15,396 --> 00:26:18,876 Speaker 4: mind anymore. But one of the things that is absolutely, 465 00:26:18,996 --> 00:26:22,116 Speaker 4: undoubtedly true is that the death penalty in the South 466 00:26:22,156 --> 00:26:26,156 Speaker 4: in its early days was justified using the exact same 467 00:26:26,236 --> 00:26:29,356 Speaker 4: rationale that people used for lynching, which was that this 468 00:26:29,516 --> 00:26:33,476 Speaker 4: was about protecting white women from sexually predatory black men. 469 00:26:33,876 --> 00:26:38,516 Speaker 4: And that line, that consistent sort of feature of executions, 470 00:26:38,556 --> 00:26:42,116 Speaker 4: whether it was an extra judicial lynching or an execution 471 00:26:42,276 --> 00:26:44,956 Speaker 4: carried out by the state, has been really consistent and 472 00:26:44,996 --> 00:26:47,796 Speaker 4: I think overlooked in the history of the death penalty. 473 00:26:48,156 --> 00:26:50,516 Speaker 4: And part of the reason it's overlooked is that, again 474 00:26:50,596 --> 00:26:52,356 Speaker 4: going back to the Supreme Court, there have been a 475 00:26:52,476 --> 00:26:55,916 Speaker 4: number of times that this history has come before the 476 00:26:55,956 --> 00:26:59,316 Speaker 4: Supreme Court and other courts, and by and large the 477 00:26:59,316 --> 00:27:02,276 Speaker 4: reaction has been to look away, to sort of deny this, 478 00:27:02,476 --> 00:27:05,196 Speaker 4: and that is absolutely true. In the years leading up 479 00:27:05,236 --> 00:27:07,716 Speaker 4: to the nineteen seventy two case Firm and versus Georgia, 480 00:27:07,756 --> 00:27:10,876 Speaker 4: which Malcolm alluded to earlier, there was this moment where 481 00:27:10,916 --> 00:27:14,036 Speaker 4: the Supreme Court sort of had to pause executions, and 482 00:27:14,116 --> 00:27:16,916 Speaker 4: this was a four year period in the seventies. Nineteen 483 00:27:16,916 --> 00:27:19,436 Speaker 4: seventy two was Firman versus Georgia, nineteen seventy six was 484 00:27:19,436 --> 00:27:22,756 Speaker 4: greg versus Georgia. Part of the reason that Furman, which 485 00:27:22,836 --> 00:27:26,276 Speaker 4: was this nineteen seventy two case, invalidated the death penalty 486 00:27:26,276 --> 00:27:29,796 Speaker 4: across the country was because there was evidence that executions, 487 00:27:29,796 --> 00:27:32,476 Speaker 4: that death sentences were being handed down in what they 488 00:27:32,516 --> 00:27:35,636 Speaker 4: called an arbitrary way. And in reality, it wasn't so 489 00:27:35,716 --> 00:27:39,836 Speaker 4: much arbitrariness as very clear evidence of sentences that were 490 00:27:39,836 --> 00:27:43,156 Speaker 4: being given disproportionately to people of color, to black people, 491 00:27:43,436 --> 00:27:46,996 Speaker 4: and the history showed that that was largely motivated by 492 00:27:47,276 --> 00:27:49,916 Speaker 4: cases in which a victim was white. It was a 493 00:27:49,956 --> 00:27:53,276 Speaker 4: white woman maybe who had been subjected to sexual violence. 494 00:27:53,356 --> 00:27:55,196 Speaker 4: You know, there is that link, and I think it's 495 00:27:55,196 --> 00:27:58,396 Speaker 4: really important to sort of remember that. In Alabama. One 496 00:27:58,436 --> 00:28:01,636 Speaker 4: of the really interesting things too, going back to judicial override, 497 00:28:02,396 --> 00:28:05,156 Speaker 4: there's this kind of irony in the history of judicial 498 00:28:05,236 --> 00:28:07,676 Speaker 4: override in the way that it was carried out by 499 00:28:07,756 --> 00:28:11,316 Speaker 4: judges where Alabama, when they restarted the death penalty in 500 00:28:11,356 --> 00:28:14,356 Speaker 4: the early eighties was getting a lot of flack for 501 00:28:14,436 --> 00:28:18,636 Speaker 4: essentially having a racist death penalty system, and of course 502 00:28:18,676 --> 00:28:20,556 Speaker 4: there was a lot of defensiveness around this, and there 503 00:28:20,556 --> 00:28:24,116 Speaker 4: were judges who actually, in cases where juries did not 504 00:28:24,196 --> 00:28:26,796 Speaker 4: come back with a death sentence for a white defendant, 505 00:28:26,836 --> 00:28:30,556 Speaker 4: there were cases where judges then overrode that decision in 506 00:28:30,596 --> 00:28:32,836 Speaker 4: a sort of display of fairness. And one of the 507 00:28:32,836 --> 00:28:34,916 Speaker 4: things that I found when I was researching my piece 508 00:28:34,956 --> 00:28:38,796 Speaker 4: from twenty eighteen was that there was a judge and 509 00:28:39,036 --> 00:28:41,276 Speaker 4: I believe it was nineteen ninety nine, who explained, you 510 00:28:41,276 --> 00:28:44,036 Speaker 4: know why he overrode the jury in sentencing this particular 511 00:28:44,076 --> 00:28:46,316 Speaker 4: white man to die. And he said, if I hadn't 512 00:28:46,316 --> 00:28:48,636 Speaker 4: imposed the death sentence, I would have sentenced three black 513 00:28:48,676 --> 00:28:51,076 Speaker 4: people to death and no white people. So this was 514 00:28:51,116 --> 00:28:53,876 Speaker 4: his way of ensuring fairness. Well, I got to overwrite 515 00:28:53,876 --> 00:28:55,836 Speaker 4: it here, never mind what it might say about the 516 00:28:55,876 --> 00:28:58,036 Speaker 4: jury seemed a decision not to hand down a death 517 00:28:58,036 --> 00:29:00,756 Speaker 4: sentence for a white person, you know, they needed. Again, 518 00:29:00,796 --> 00:29:04,116 Speaker 4: it goes back to appearance. They needed the appearance of fairness. 519 00:29:04,636 --> 00:29:07,876 Speaker 4: And so Alabama really does typify a certain kind of 520 00:29:07,956 --> 00:29:10,756 Speaker 4: racial dynamic and early history of the death penalty that 521 00:29:10,796 --> 00:29:13,916 Speaker 4: you see throughout the South, especially not just the South, 522 00:29:13,916 --> 00:29:14,916 Speaker 4: but especially in the South. 523 00:29:15,716 --> 00:29:19,196 Speaker 3: One of the things proponents of the death penalty are 524 00:29:19,236 --> 00:29:22,956 Speaker 3: adamant about is that it requires some element of secrecy 525 00:29:23,236 --> 00:29:28,476 Speaker 3: to survive. Executions happen behind closed walls in small rooms 526 00:29:28,796 --> 00:29:32,716 Speaker 3: late at night. The people involved never have their identities 527 00:29:32,756 --> 00:29:36,636 Speaker 3: publicly revealed or their credentials, the concern being that if 528 00:29:36,636 --> 00:29:38,316 Speaker 3: people really knew what was involved, there would be a 529 00:29:38,356 --> 00:29:41,716 Speaker 3: massive public outcry. Malcolm, in this series, you describe in 530 00:29:41,756 --> 00:29:45,876 Speaker 3: gruesome detail what is actually involved in an execution. For 531 00:29:45,916 --> 00:29:48,276 Speaker 3: folks who haven't heard the series, tell us about that. 532 00:29:48,876 --> 00:29:49,076 Speaker 4: Well. 533 00:29:49,116 --> 00:29:54,436 Speaker 6: In Alabama, there is a long execution protocol, kind of 534 00:29:54,436 --> 00:29:58,836 Speaker 6: a written script, which was made public only because it 535 00:29:59,356 --> 00:30:01,876 Speaker 6: came out during a lawsuit, which kind of lays out 536 00:30:01,916 --> 00:30:06,676 Speaker 6: all the steps that the state takes. And Alabama also has, 537 00:30:06,716 --> 00:30:09,756 Speaker 6: to your point, an unusual level of secrecy. For example, 538 00:30:10,196 --> 00:30:14,516 Speaker 6: in many states, the entire execution process is open at 539 00:30:14,596 --> 00:30:18,676 Speaker 6: least to witnesses. In Alabama, they you only see the 540 00:30:18,716 --> 00:30:21,876 Speaker 6: person after they've found a vein. So the Kenny Smith 541 00:30:21,916 --> 00:30:25,636 Speaker 6: case we were talking about, where they spend hours unsuccessfully 542 00:30:25,636 --> 00:30:27,996 Speaker 6: trying to find a vein, that was all done behind 543 00:30:27,996 --> 00:30:31,116 Speaker 6: closed doors. And the second thing is you point out 544 00:30:31,156 --> 00:30:34,996 Speaker 6: is that people who are involved remain anonymous. And you 545 00:30:35,036 --> 00:30:37,396 Speaker 6: can understand why. I mean, it's a kind of it 546 00:30:37,476 --> 00:30:41,316 Speaker 6: is an acknowledgement on the part of these states that 547 00:30:41,356 --> 00:30:45,756 Speaker 6: they are engaged in something shameful. Right, if they were 548 00:30:45,796 --> 00:30:48,596 Speaker 6: as kind of morally clear headed as they claim to be, 549 00:30:48,916 --> 00:30:53,076 Speaker 6: then what would be the problem with making every aspect 550 00:30:53,076 --> 00:30:55,876 Speaker 6: of the process public. But instead they go in the 551 00:30:55,916 --> 00:30:59,196 Speaker 6: opposite direction and they try and shroud it. They make 552 00:30:59,236 --> 00:31:01,956 Speaker 6: it as much of a mystery as they can. And 553 00:31:02,636 --> 00:31:05,956 Speaker 6: you know, it's funny. So much of our knowledge about 554 00:31:06,276 --> 00:31:10,916 Speaker 6: death palic procedures only comes out because of lawsuits. It 555 00:31:10,996 --> 00:31:14,916 Speaker 6: is only under the compulsion of the judicial process that 556 00:31:14,996 --> 00:31:17,836 Speaker 6: we learn any even the smallest tidbit about what's going 557 00:31:17,876 --> 00:31:20,836 Speaker 6: on or what kind of thought would into a particular procedure. 558 00:31:21,516 --> 00:31:23,756 Speaker 6: When we're talking about the state taking the life of 559 00:31:23,796 --> 00:31:28,436 Speaker 6: a citizens of the United States, that's weird, right. We 560 00:31:28,556 --> 00:31:32,476 Speaker 6: have more transparency over the most prosaic aspects of government 561 00:31:32,516 --> 00:31:35,796 Speaker 6: practice than we do about something that involves something as 562 00:31:35,836 --> 00:31:37,196 Speaker 6: important as taking someone's life. 563 00:31:38,396 --> 00:31:43,516 Speaker 3: Well, Leanna, you've witnessed two executions. Tell us about your experience, 564 00:31:43,636 --> 00:31:47,076 Speaker 3: and particularly this aspect of secrecy surrounding the process. 565 00:31:48,596 --> 00:31:50,796 Speaker 4: Well, let me just pick up first on the secrecy piece, 566 00:31:50,876 --> 00:31:54,716 Speaker 4: because one of the really bizarre aspects of the death 567 00:31:54,716 --> 00:31:59,116 Speaker 4: penalty when you've covered it in different states and looked 568 00:31:59,156 --> 00:32:01,116 Speaker 4: at the federal system as well, is that there's just 569 00:32:01,196 --> 00:32:04,636 Speaker 4: this wide range when it comes to what states and 570 00:32:04,716 --> 00:32:08,076 Speaker 4: jurisdictions are willing to reveal and show. What they are 571 00:32:08,116 --> 00:32:11,636 Speaker 4: not willing to reveal is certainly the individuals involved. A 572 00:32:11,716 --> 00:32:16,156 Speaker 4: ton of states or death penalty states have passed secrecy legislation, 573 00:32:16,276 --> 00:32:20,356 Speaker 4: essentially bringing all of that information even further behind closed doors. 574 00:32:20,396 --> 00:32:22,876 Speaker 4: So you know, the identity of the executioners was always 575 00:32:22,956 --> 00:32:24,516 Speaker 4: sort of a secret, but now we don't get to 576 00:32:24,556 --> 00:32:26,476 Speaker 4: know where they get the drugs. We don't get to know, 577 00:32:26,636 --> 00:32:29,236 Speaker 4: you know, and in some states, in some places, the 578 00:32:29,276 --> 00:32:32,916 Speaker 4: secrecy is really sort of shocking. Indiana. I just wrote 579 00:32:33,116 --> 00:32:37,716 Speaker 4: a story about Indiana, which recently restarted executions, and Indiana 580 00:32:37,796 --> 00:32:39,836 Speaker 4: is the only act of death penalty state that does 581 00:32:39,876 --> 00:32:43,316 Speaker 4: not allow any media witnesses. There is nothing, you know, 582 00:32:43,396 --> 00:32:46,276 Speaker 4: and that's exceptional. And if you go and try as 583 00:32:46,276 --> 00:32:48,876 Speaker 4: a journalist to cover an execution in Indiana, it's not 584 00:32:48,916 --> 00:32:51,596 Speaker 4: going to be like in Alabama and Oklahoma, where you know, 585 00:32:51,636 --> 00:32:54,236 Speaker 4: the head of the doc comes out and addresses things 586 00:32:54,236 --> 00:32:56,836 Speaker 4: and says, you know, whether true or not true, everything 587 00:32:56,876 --> 00:32:59,956 Speaker 4: went great. No, you are in a parking lot at 588 00:32:59,996 --> 00:33:03,676 Speaker 4: midnight across from the prison. There is absolutely nobody coming 589 00:33:03,796 --> 00:33:07,316 Speaker 4: to tell you what happened. It's a sort of ludicrous 590 00:33:07,676 --> 00:33:12,036 Speaker 4: display of indifference and contempt, frankly for the press or 591 00:33:12,076 --> 00:33:14,516 Speaker 4: for the public that has a right and an interest 592 00:33:14,956 --> 00:33:18,916 Speaker 4: in knowing what's happening in their names. So secrecy there's 593 00:33:18,956 --> 00:33:22,356 Speaker 4: a range, I guess, is my point. And yes, most 594 00:33:22,396 --> 00:33:24,676 Speaker 4: places err on the side of not revealing anything, but 595 00:33:24,796 --> 00:33:27,916 Speaker 4: some take that a lot further than others. In terms 596 00:33:27,996 --> 00:33:31,076 Speaker 4: of the experience of witnessing an execution, you know, that's 597 00:33:31,116 --> 00:33:33,396 Speaker 4: obviously a big question. I will say that both those 598 00:33:33,436 --> 00:33:37,596 Speaker 4: executions were in Oklahoma. That is a state that has 599 00:33:37,676 --> 00:33:42,596 Speaker 4: a really ugly, sordid history of botched executions going back 600 00:33:42,996 --> 00:33:47,556 Speaker 4: longer than ten years. But Oklahoma became sort of infamous 601 00:33:47,596 --> 00:33:49,996 Speaker 4: on the world stage about ten years ago a little 602 00:33:50,036 --> 00:33:53,396 Speaker 4: more for botching a series of executions. I've been covering 603 00:33:53,396 --> 00:33:55,636 Speaker 4: the case of Richard Glossip for a while. Richard Glossip 604 00:33:55,716 --> 00:33:58,316 Speaker 4: is a man with a long standing innocence claim whose 605 00:33:58,756 --> 00:34:02,676 Speaker 4: death sentence and conviction was overturned only this year. Richard 606 00:34:02,676 --> 00:34:04,436 Speaker 4: Glossip was almost put to death by the state of 607 00:34:04,436 --> 00:34:06,836 Speaker 4: Oklahoma in twenty fifteen, and I was outside the prison 608 00:34:06,876 --> 00:34:08,756 Speaker 4: that day. And it's only because they had the wrong 609 00:34:08,836 --> 00:34:11,116 Speaker 4: drug on hand that it did not go through. And 610 00:34:11,156 --> 00:34:14,396 Speaker 4: so going into a situation where I was preparing to 611 00:34:14,436 --> 00:34:18,796 Speaker 4: witness an execution in Oklahoma, I was all too keenly 612 00:34:18,836 --> 00:34:22,276 Speaker 4: aware of the possibility that something could go wrong. And 613 00:34:22,436 --> 00:34:25,236 Speaker 4: that's just something you know when you're covering this stuff. 614 00:34:25,756 --> 00:34:29,316 Speaker 4: And instead, you know, Oklahoma carried out the three drug 615 00:34:29,356 --> 00:34:32,516 Speaker 4: protocol execution of a man named Anthony Sanchez in September 616 00:34:32,556 --> 00:34:35,116 Speaker 4: of twenty twenty three. I had written about Anthony's case, 617 00:34:35,156 --> 00:34:37,436 Speaker 4: I had spoken to him the day before and for 618 00:34:37,476 --> 00:34:41,356 Speaker 4: the better part of a year, and I think I'm 619 00:34:41,396 --> 00:34:45,796 Speaker 4: still trying to understand what I saw that day, because 620 00:34:47,596 --> 00:34:51,876 Speaker 4: you know, by all appearances, things looked like they went 621 00:34:51,956 --> 00:34:55,636 Speaker 4: as smoothly as one would hope. Right, he was covered 622 00:34:55,676 --> 00:34:58,116 Speaker 4: with a sheet. He you know, you sort of saw 623 00:34:58,156 --> 00:35:02,636 Speaker 4: the color in his face change. He went still, and 624 00:35:03,596 --> 00:35:07,356 Speaker 4: as a journalist or just an ordinary person trying to 625 00:35:07,396 --> 00:35:11,196 Speaker 4: describe what that meant and what I was seeing I 626 00:35:11,196 --> 00:35:15,596 Speaker 4: couldn't really tell you, because the process, by design was 627 00:35:15,716 --> 00:35:19,756 Speaker 4: made to look that way. But I could not possibly 628 00:35:19,756 --> 00:35:23,436 Speaker 4: guess as to what he was experiencing. And again that's 629 00:35:23,476 --> 00:35:26,316 Speaker 4: because lethal injection and that three drug protocol has been 630 00:35:26,356 --> 00:35:29,196 Speaker 4: designed to make it look humane and make it look 631 00:35:29,356 --> 00:35:32,196 Speaker 4: like everything's gone smoothly. I will say one thing that 632 00:35:32,236 --> 00:35:34,916 Speaker 4: has really stuck with me about that execution was that 633 00:35:34,956 --> 00:35:37,836 Speaker 4: I was sitting right behind the Attorney General of Oklahoma, 634 00:35:38,276 --> 00:35:43,836 Speaker 4: Getner Drummond, who has attended, i think to his credit, frankly, 635 00:35:43,916 --> 00:35:46,476 Speaker 4: but who has attended every execution that has been carried 636 00:35:46,476 --> 00:35:49,996 Speaker 4: out in Oklahoma under his tenure, and he was sitting 637 00:35:50,036 --> 00:35:52,996 Speaker 4: in front of me, and a member of the one 638 00:35:53,076 --> 00:35:55,196 Speaker 4: witness who was there, who I believe was a member 639 00:35:55,196 --> 00:35:58,436 Speaker 4: of Anthony's family, was sitting sort of one seat over, 640 00:35:58,996 --> 00:36:01,716 Speaker 4: and after the execution was over, she was kind of 641 00:36:01,756 --> 00:36:06,116 Speaker 4: quietly weeping, and Getner Drummond, the Attorney General who was 642 00:36:06,156 --> 00:36:09,036 Speaker 4: responsible for this execution, kind of, you know, put his 643 00:36:09,196 --> 00:36:11,356 Speaker 4: hand on her and said, I'm sorry for your loss. 644 00:36:12,836 --> 00:36:16,116 Speaker 4: And it was this really bizarre moment because he was 645 00:36:16,156 --> 00:36:19,676 Speaker 4: acknowledging that this was a loss that this death of 646 00:36:19,676 --> 00:36:22,756 Speaker 4: this person that she clearly cared about, he was responsible 647 00:36:22,796 --> 00:36:25,836 Speaker 4: for it. And I don't know that he has ever 648 00:36:25,876 --> 00:36:27,956 Speaker 4: said something like that since, because a lot of us 649 00:36:27,996 --> 00:36:30,436 Speaker 4: journalists in the room, you know, sort of reported back, 650 00:36:30,556 --> 00:36:32,836 Speaker 4: and it's almost like you're not supposed to say that. 651 00:36:32,956 --> 00:36:35,916 Speaker 4: You know, there shouldn't be sorrow here. Really, you know, 652 00:36:36,236 --> 00:36:38,996 Speaker 4: this is justice, this is what's being done in our name. 653 00:36:39,596 --> 00:36:41,876 Speaker 4: And I'm still trying to sort of figure out how 654 00:36:41,916 --> 00:36:44,876 Speaker 4: i feel about that, because, by and large, in the 655 00:36:44,916 --> 00:36:48,436 Speaker 4: executions I've recorded on, you don't have the Attorney General 656 00:36:48,516 --> 00:36:50,996 Speaker 4: himself or the prosecutor who sent this person to death 657 00:36:51,076 --> 00:36:54,316 Speaker 4: row attending the execution. It's sort of out of sight, out. 658 00:36:54,156 --> 00:36:56,356 Speaker 2: Of mind, Malcolm. 659 00:36:56,516 --> 00:37:00,436 Speaker 3: As we've talked about and has been repeatedly documented, the 660 00:37:00,476 --> 00:37:03,996 Speaker 3: way that the death penalty has been applied has been 661 00:37:04,356 --> 00:37:08,436 Speaker 3: racist and classes disproportionally affecting black and Latino people and 662 00:37:08,556 --> 00:37:13,516 Speaker 3: poor people. Is also historically penalized people who have mental 663 00:37:13,516 --> 00:37:18,316 Speaker 3: health issues or intellectual disabilities. Even with all that evidence, 664 00:37:18,836 --> 00:37:23,556 Speaker 3: why does this persist? How has vengeance become such a 665 00:37:23,556 --> 00:37:25,716 Speaker 3: core part of the American justice system? 666 00:37:26,756 --> 00:37:29,156 Speaker 6: Well, as I said before, I think what's happened is 667 00:37:29,556 --> 00:37:32,156 Speaker 6: that the people who are opposed to death penalty are 668 00:37:32,196 --> 00:37:35,196 Speaker 6: having a different conversation than the people who are in 669 00:37:35,236 --> 00:37:38,156 Speaker 6: favor of it. That the people who are in favorite 670 00:37:38,236 --> 00:37:41,476 Speaker 6: are trying to make a kind of moral statement about 671 00:37:41,596 --> 00:37:46,796 Speaker 6: society's ultimate intolerance of people who violate certain kinds of norms, 672 00:37:47,356 --> 00:37:50,036 Speaker 6: and they are in the pursuit of that kind of 673 00:37:50,076 --> 00:37:53,436 Speaker 6: moral statement willing to go to almost any lengths. And 674 00:37:53,476 --> 00:37:56,556 Speaker 6: on the other side are people who are saying that 675 00:37:56,716 --> 00:38:00,916 Speaker 6: going this far is outside of the moral boundaries of 676 00:38:00,956 --> 00:38:06,836 Speaker 6: a civilized state. Those are two very different claims that 677 00:38:06,956 --> 00:38:10,476 Speaker 6: proceed on very different assumptions, and we're talking past each other, 678 00:38:10,476 --> 00:38:13,396 Speaker 6: I would even so, my point is it doesn't matter 679 00:38:13,476 --> 00:38:15,636 Speaker 6: to those who are making a broad moral statement about 680 00:38:15,636 --> 00:38:21,596 Speaker 6: society's intolerance what this conditioned status, background makeup of the 681 00:38:21,636 --> 00:38:25,076 Speaker 6: convicted criminal is, because they're not basing their decision on 682 00:38:25,636 --> 00:38:28,916 Speaker 6: the humanity of the defendant, the criminal defendant. They're making 683 00:38:28,956 --> 00:38:31,916 Speaker 6: a broad moral point, right right. And I wonder I've 684 00:38:31,916 --> 00:38:36,356 Speaker 6: often wondered whether, in doing series as I did that 685 00:38:36,436 --> 00:38:40,156 Speaker 6: focus so heavily on the details of an execution, I'm 686 00:38:40,236 --> 00:38:45,116 Speaker 6: kind of contributing to the problem that if opponents make 687 00:38:45,156 --> 00:38:49,036 Speaker 6: it all about the individual circumstances of the defendant, the 688 00:38:49,036 --> 00:38:51,316 Speaker 6: details of the case, was the person guilty or not, 689 00:38:51,556 --> 00:38:55,796 Speaker 6: was the kind of punishment cruel and unusual. We're kind 690 00:38:55,876 --> 00:39:00,676 Speaker 6: of buying into the moral error here because we're opening 691 00:39:00,756 --> 00:39:03,636 Speaker 6: the possibility that if all we were doing was executing 692 00:39:03,636 --> 00:39:06,956 Speaker 6: people who were one hundred percent guilty, and if our 693 00:39:06,996 --> 00:39:10,276 Speaker 6: method of execution was proven without a shadow of doubt 694 00:39:10,356 --> 00:39:12,556 Speaker 6: to be quote unquote humane, then we don't have a 695 00:39:12,556 --> 00:39:13,276 Speaker 6: case anymore. 696 00:39:13,756 --> 00:39:14,796 Speaker 2: Right then it'd be fine. 697 00:39:14,876 --> 00:39:16,836 Speaker 6: And I, you know, so I look at what I've done. 698 00:39:16,836 --> 00:39:19,076 Speaker 6: That's my one reservation about spending all this time on 699 00:39:19,116 --> 00:39:22,796 Speaker 6: the Kenny Smith case is that we shouldn't have to 700 00:39:22,836 --> 00:39:25,996 Speaker 6: do this. It should be enough to say that even 701 00:39:26,036 --> 00:39:27,956 Speaker 6: the worst person in the world does not deserve to 702 00:39:27,996 --> 00:39:31,676 Speaker 6: be murdered by a state. That's not what states do 703 00:39:32,596 --> 00:39:35,916 Speaker 6: right in a civilized society. That one sentence ought to 704 00:39:35,916 --> 00:39:39,036 Speaker 6: be enough. And it's kind of a symptom of how 705 00:39:40,156 --> 00:39:44,276 Speaker 6: distorted this argument has become that it's not enough. 706 00:39:45,156 --> 00:39:47,116 Speaker 2: Well, Lean, I want to briefly get your thoughts on 707 00:39:47,156 --> 00:39:47,716 Speaker 2: this too. 708 00:39:48,116 --> 00:39:52,036 Speaker 4: Yeah, I think that people who are oppose to the 709 00:39:52,036 --> 00:39:56,116 Speaker 4: death penalty and abolitionists often times sort of say this 710 00:39:56,196 --> 00:39:58,436 Speaker 4: is a broken system, and we talk about prisons in 711 00:39:58,436 --> 00:40:01,236 Speaker 4: that way. This is a broken system. And I think 712 00:40:01,236 --> 00:40:03,636 Speaker 4: it's a mistake to say that this is a broken system, 713 00:40:03,716 --> 00:40:06,436 Speaker 4: because I don't think that this system at its best, 714 00:40:06,436 --> 00:40:09,436 Speaker 4: as you've just discussed, would be fine if it only 715 00:40:09,476 --> 00:40:13,236 Speaker 4: worked correctly. I think that that's absolutely not the case, 716 00:40:13,276 --> 00:40:16,316 Speaker 4: and so I do agree that the system. I don't 717 00:40:16,396 --> 00:40:18,316 Speaker 4: hide the fact that I'm very opposed to the death penalty. 718 00:40:18,316 --> 00:40:20,116 Speaker 4: I don't think that you can design it and improve 719 00:40:20,156 --> 00:40:22,596 Speaker 4: it and make it fair and make it just. I 720 00:40:22,636 --> 00:40:24,796 Speaker 4: also think that part of the reason that people have 721 00:40:24,836 --> 00:40:27,076 Speaker 4: a hard time saying that is that if you were 722 00:40:27,076 --> 00:40:29,116 Speaker 4: to say that about the death penalty in this country, 723 00:40:29,156 --> 00:40:31,156 Speaker 4: for all of the reasons that that may be true, 724 00:40:31,236 --> 00:40:34,356 Speaker 4: then you would be forced to deal with the criminal 725 00:40:34,436 --> 00:40:38,196 Speaker 4: justice system more broadly and with prisons and sentencing as 726 00:40:38,236 --> 00:40:40,396 Speaker 4: a whole. And I think that there's a real reluctance 727 00:40:40,476 --> 00:40:43,076 Speaker 4: to see the problems that we see in death penalty 728 00:40:43,076 --> 00:40:46,236 Speaker 4: cases in that broader context, because what does that mean 729 00:40:46,476 --> 00:40:49,236 Speaker 4: for this country if you're calling the question on mass 730 00:40:49,236 --> 00:40:52,916 Speaker 4: incarceration and in the purpose that these sentences serve. 731 00:40:53,836 --> 00:40:55,836 Speaker 3: We've covered a lot here. I want to thank you 732 00:40:55,876 --> 00:40:57,556 Speaker 3: both for joining me on the Intercept Briefing. 733 00:40:57,836 --> 00:40:58,596 Speaker 6: Thank you so much. 734 00:40:58,916 --> 00:40:59,276 Speaker 4: Thank you. 735 00:41:01,276 --> 00:41:03,676 Speaker 3: Before we go, we want to hear from you. What 736 00:41:03,716 --> 00:41:05,516 Speaker 3: do you want to see more covered of? Are you 737 00:41:05,556 --> 00:41:09,276 Speaker 3: taking political action? Are there organizing efforts in your community? 738 00:41:09,396 --> 00:41:11,516 Speaker 3: You want to shout out? Shoot us an email at 739 00:41:11,556 --> 00:41:13,996 Speaker 3: podcasts at the Intercept dot com or leave us a 740 00:41:14,036 --> 00:41:17,516 Speaker 3: voicemail at five three zero podcast That's five three zero 741 00:41:17,756 --> 00:41:20,956 Speaker 3: seven six three two two seven eight. This episode was 742 00:41:20,996 --> 00:41:25,036 Speaker 3: produced by Andrew Stelzer. Laura Flynn is our supervising producer. 743 00:41:25,396 --> 00:41:29,156 Speaker 3: Seem Agerwaal is our executive producer. Ben Music is our 744 00:41:29,236 --> 00:41:32,996 Speaker 3: editor in chief. Chelsea Bcooms is our social and video producer. 745 00:41:33,316 --> 00:41:36,796 Speaker 3: Desiree Dieb is our booking producer. Valeoh is our product 746 00:41:36,796 --> 00:41:40,916 Speaker 3: and design manager. Narishin is our copy editor. Will Stanton 747 00:41:40,956 --> 00:41:44,596 Speaker 3: mixed our show and legal review by David Burrello slipstream 748 00:41:44,596 --> 00:41:47,436 Speaker 3: provider or theme music. If you want to support our work, 749 00:41:47,556 --> 00:41:49,676 Speaker 3: you can go to the Intercept dot com slash join 750 00:41:50,116 --> 00:41:53,396 Speaker 3: your donation no matter the amount makes a real difference, 751 00:41:53,556 --> 00:41:56,316 Speaker 3: And if you haven't already, please subscribe to the Intercept 752 00:41:56,316 --> 00:41:59,356 Speaker 3: Briefing wherever you listen to podcasts and leave us a rating. 753 00:41:59,516 --> 00:42:00,076 Speaker 2: Or a review. 754 00:42:00,196 --> 00:42:03,156 Speaker 3: It helps other listeners find our reporting. Until next time, 755 00:42:03,276 --> 00:42:04,156 Speaker 3: I'm MICHAELA. Lacey