Speaker 1: Pushkin Hey revisionist history listeners ben out of Hafer here
Speaker 1: this past season on Revisionist History, the Alabama Murders, we
Speaker 1: told the tale of how one death snowballed into a
Speaker 1: cascade of moral failures masked with legal fig leaves the
Speaker 1: misunderstanding of what constitutes reasonable doubt, the myth that there's
Speaker 1: a painless way to kill somebody. At its core, the
Speaker 1: Alabama Murders is a searing critique of cruelty in America
Speaker 1: in the legal system that allows that cruelty to thrive.
Speaker 1: But the story goes much deeper than a single case
Speaker 1: or a single incident from the nineteen eighties. As of
Speaker 1: December one this year, eleven states have executed a total
Speaker 1: of forty four people, making twenty twenty five one of
Speaker 1: the deadliest years for state sanctioned killings, and in Alabama,
Speaker 1: they're still using nitrogen hypoxia, the brutal method pioneered in
Speaker 1: Kenny Smith's final execution. Malcolm recently joined Liliana Segura, a
Speaker 1: criminal justice reporter at the Intercept, to discuss capital punishment
Speaker 1: and what happens when a legal system that's supposed to
Speaker 1: catch mistakes and reduce harm doesn't. They also talk about
Speaker 1: why Malcolm felt drawn to investigate the death penalty in
Speaker 1: the series. It's a great conversation and we thought that
Speaker 1: listeners of the series might want to hear it here,
Speaker 1: So here's the episode. Thanks for listening.
Speaker 2: Welcome to the Intercept Briefing. I'm Mikaela Lacey.
Speaker 3: As of December first, officials across the US have executed
Speaker 3: forty four people in eleven states, making twenty twenty five
Speaker 3: one of the deadliest years for state sanctioned executions in
Speaker 3: recent history. According to the Death Penalty Information Center, three
Speaker 3: more people are scheduled for execution before the new year.
Speaker 3: The justification for the death penalty is and it's supposed
Speaker 3: to be the ultimate punishment for the worst crimes, but
Speaker 3: in reality, who gets sentenced to die depends on things
Speaker 3: that often have nothing to do with guilt or innocence. Historically,
Speaker 3: judges have disproportionately sentenced black and Latino people to death.
Speaker 3: A new report from the American Civil Liberties Union released
Speaker 3: in November, found that more than half of the two
Speaker 3: hundred people exonerated from death row since nineteen seventy three
Speaker 3: were black. Executions had been on a steady decline since
Speaker 3: their peak in the late nineteen nineties, but the numbers
Speaker 3: slowly started to creep back up in recent years, more
Speaker 3: than doubling from eleven in twenty twenty one to twenty
Speaker 3: five last year, and we've almost doubled that again this year.
Speaker 3: Several states have stood out in their efforts to ramp
Speaker 3: up executions and conduct them at a faster piece, including Alabama.
Speaker 3: Malcolm Gladwell's new podcast series, The Alabama Murders Dies into
Speaker 3: one case to understand what the system really looks like,
Speaker 3: how it operates, and its inherent brutality.
Speaker 4: Thank you.
Speaker 5: Just got on from work and they come and he said, well, mom,
Speaker 5: can you come?
Speaker 4: He said, the police are here.
Speaker 5: There's no sense in even having a jury.
Speaker 2: If you if you're.
Speaker 5: Going to be able to overturn the jury, if a
Speaker 5: judge can overturn the jury. He said, But I was involved,
Speaker 5: and that's a horrible thing I.
Speaker 4: Was involved in.
Speaker 2: I've been in prison twenty four twenty five years.
Speaker 5: That's probably not long enough.
Speaker 3: I didn't kill them.
Speaker 5: They get burned from the inside, and then glad just
Speaker 5: pours into the lungs and I'm sor he as I'm
Speaker 5: saying this it's awful and this is what this is
Speaker 5: how lethal injection actually kills you.
Speaker 6: Here's what I don't understand. Nobody noticed this till you.
Speaker 5: Apparently not.
Speaker 3: Today we're speaking with Gladwell, who's a writer at The
Speaker 3: New Yorker and co founder of the podcast network Pushkin Industries.
Speaker 3: And we're joined by Intercept senior reporter Lana Segura, who
Speaker 3: has covered capital punishment and criminal justice for two decades.
Speaker 3: We're going to talk about the deeply concerning issues surrounding
Speaker 3: capital punishment. How does the state decide who lives and
Speaker 3: who dies, what happens when the legal system that is
Speaker 3: supposed to catch mistakes doesn't, and what does it all
Speaker 3: say about our country? Malcolm, Lliana, Welcome to the show.
Speaker 2: Thank you, Thank you, Malcolm.
Speaker 3: The series starts by recounting the killing of Elizabeth Sennett,
Speaker 3: but very quickly delves into what happens to the two
Speaker 3: men convicted of killing her, John Parker and Kenny Smith.
Speaker 3: You spend a lot of time in this series explaining,
Speaker 3: sometimes in graphic detail, how the cruelty of the death
Speaker 3: penalty isn't only about the execution, but also about the
Speaker 3: system around it, the paperwork, the waiting. This is not
Speaker 3: the kind of subject matter that you typically tackle. What
Speaker 3: drew you to wanting to report on the death penal
Speaker 3: and criminal justice?
Speaker 6: Well, I wasn't initially intending to do a story about
Speaker 6: the death penalty. I on a kind of whim spend
Speaker 6: a lot of time with Cape Boorderfield, who's the psychologist
Speaker 6: who studies trauma, who shows up halfway through the Alabama murders,
Speaker 6: and I was just interviewing her about because I was
Speaker 6: interested in the treatment of traumatized people, and she just
Speaker 6: happened to mention that she'd been involved with the death
Speaker 6: penalty case, and her description of it was so kind
Speaker 6: of moving and compelling that I realized, Oh, that's the
Speaker 6: story I want to tell. But this did not start
Speaker 6: as a death penalty project. It started as a exploration
Speaker 6: of a psychologist's work, and it kind of took a detour.
Speaker 3: Tell us a little bit more about how the bureaucracy
Speaker 3: around the death penalty masks its inherent cruelty.
Speaker 6: Well, you know, there's a wonderful phrase that one of
Speaker 6: the people we interviewed, Joel's zibitt Uses, and he talks
Speaker 6: about how the death penalty. He was talking about lethal injection.
Speaker 6: But this is also true of nitrogen gas. He said,
Speaker 6: it is the impersonation of a medical act. And I
Speaker 6: think that phrase speaks volumes that a lot of what
Speaker 6: is going on here is a kind of performance that
Speaker 6: is for the benefit of the viewer. It has to
Speaker 6: look acceptable to those who are watching, to those who
Speaker 6: are kind of in society who are judging or observing
Speaker 6: the process. It is the management of perception that is
Speaker 6: compelling and driving the behavior here, not the actual treatment
Speaker 6: of the condemned prisoner him or herself. And once you
Speaker 6: understand that, oh, it's a performance and a lot of
Speaker 6: it makes sense. One of the crucial moments in a
Speaker 6: story we tell is you know where there is a
Speaker 6: hearing in which the attorneys for Kenny Smith are trying
Speaker 6: to get a stay of execution, and they start asking
Speaker 6: the State of Alabama, the corrections people in the state
Speaker 6: of Alibe, Obama, to explain, did they understand what they
Speaker 6: would do this was they were contemplating the use of
Speaker 6: nitrogen gas. Did they ever talk to a doctor about
Speaker 6: the risks associated with it? Did they ever contemplate any
Speaker 6: of the potential side effects? And it turns out they
Speaker 6: had done none. Of that, and it makes sense when
Speaker 6: you realize that's not what they're interested in. They're interested
Speaker 6: in the impersonation of a medical act, not the implementation
Speaker 6: of a medical act. The bureaucracy is there to make
Speaker 6: it look good. And that was one of the compelling
Speaker 6: lessons of the piece.
Speaker 3: And it's impersonating a medical act with people who are
Speaker 3: not doctors, right, Like, people who are not do not
Speaker 3: have this train.
Speaker 4: Yeah.
Speaker 6: In that hearing, there is this real incredible moment where
Speaker 6: one of the attorneys asks the man who heads Alabama's
Speaker 6: Department of Corrections, did you ever consult with any medical
Speaker 6: personnel about the choice of execution method and its possible problems?
Speaker 6: And the guy says no. And it's just like that,
Speaker 6: you just realize they're just mailing it in, like they
Speaker 6: have no State of Alabama is like, is not interested
Speaker 6: in exploring the kind of full implications of what they're doing.
Speaker 6: They're just engaged in this kind of incredibly sort of
Speaker 6: slap dash operation.
Speaker 2: Well, and I want to bring you in here.
Speaker 3: You've spent years reporting on capital punishment in the US
Speaker 3: and looked into many cases in different states.
Speaker 2: Why are states like Florida.
Speaker 3: And Alabama ramping up the number of executions. Is it
Speaker 3: all politics? What's going on there?
Speaker 4: Yeah, So that is one of the questions that I
Speaker 4: think a lot of us who cover this stuff have
Speaker 4: been asking ourselves all year long, and to some degree,
Speaker 4: it's always politics. The story of the death penalty, the
Speaker 4: story of executions so often really boils down to that
Speaker 4: we are in a political moment right now where the
Speaker 4: climate around executions certainly, but I think in general, the
Speaker 4: kind of appetite for our promotion of vengeance and sort
Speaker 4: of brutality towards our enemies is really shockingly real right now.
Speaker 4: And I was reluctant about a year ago to really
Speaker 4: trace our current moment to Trump. Right the death penalty
Speaker 4: has been a bipartisan project. I don't want to pretend
Speaker 4: like this is something that begins and ends with somebody
Speaker 4: like Trump that said, you know, it's really shocking to
Speaker 4: see the number of executions that are being pushed through,
Speaker 4: especially in Florida, and this is something that has been
Speaker 4: ramped up by Governor DeSantis for purely political reasons. You know,
Speaker 4: this death penalty push in Florida began with his political
Speaker 4: ambitions when he was originally going to run for president,
Speaker 4: and I think that that to some degree is a
Speaker 4: story behind a lot of death penalty policy, certainly going
Speaker 4: back decades, and certainly speaks to the moment we're in.
Speaker 4: I did want to just also touch on some of
Speaker 4: what Malcolm was talking about when it comes to to
Speaker 4: the performance, you know, of executions themselves. Over the past
Speaker 4: many years, I've reported on litigation death penalty trials that
Speaker 4: have taken place in states like Oklahoma and here in
Speaker 4: Tennessee where I live, where we restarted executions some years
Speaker 4: ago after a long time of not carrying any out
Speaker 4: and these trials had at the center the three drug
Speaker 4: protocol that is described so thoroughly in the podcast. And
Speaker 4: it is absolutely true that these are protocols that are
Speaker 4: sort of designed with all of these different steps and
Speaker 4: all of these different parts and made to look, you know,
Speaker 4: using the tools of medicine to kill, and made to
Speaker 4: look like this has really been thought through. But when
Speaker 4: you really trace that history as you do Malcolm in
Speaker 4: your podcast, there's no there there. I mean, these were
Speaker 4: invented for the purpose of having a humane appearing protocol,
Speaker 4: humane appearing method, and it sort of amounts to junk science.
Speaker 4: There was no way to test these methods. There was
Speaker 4: no nobody can tell us, as you describe in your podcast,
Speaker 4: what it feels like to, you know, undergo this execution process.
Speaker 4: And I think it's really important to remember that this
Speaker 4: is not only the story of lethal injection. This is
Speaker 4: a story of executions, you know, sort of writ large.
Speaker 4: When the electric chair came on the scene generations ago,
Speaker 4: it was also touted as the height of technology because
Speaker 4: it was using electricity and it was supposed to be
Speaker 4: more humane than hanging. There had been botched hangings that
Speaker 4: were seen as gruesome ordeals, you know. So there's this
Speaker 4: bizarre way in which history repeats itself when it comes
Speaker 4: to these methods that are promoted as you know, the
Speaker 4: height of modernity and humanity, and it's just completely bankrupt
Speaker 4: and false.
Speaker 6: Malcolm, do you want to add something, Yeah, I mean
Speaker 6: we have a big focus in the case I'm describing.
Speaker 6: Kenny Smith was notorious because he had a botched execution
Speaker 6: where they couldn't find a vein. And one of the
Speaker 6: points that Joel as if it makes is that, well,
Speaker 6: of course, they's not surprising that they in that case
Speaker 6: and in many others, they can't find a vein, because
Speaker 6: that is a medical procedure that is designed to be
Speaker 6: undertaken in a hospital setting by trained personnel with the
Speaker 6: cooperation of the patient. Right. Usually we'd find a vein
Speaker 6: and the patient cooperates because it's there we're trying to
Speaker 6: save their life or make them healthier. This is a
Speaker 6: use of this procedure that is completely different. It is
Speaker 6: outside of a medical institution, not being done by people
Speaker 6: who are experienced medical professionals, and is not being done
Speaker 6: with the cooperation of the patient. Right. The patient in
Speaker 6: this case is a condemned prisoner who is not in
Speaker 6: the same situation as someone who's ill and trying.
Speaker 4: To get better.
Speaker 2: I want to just walk our listeners through this.
Speaker 3: So this is again one of the pieces of the series,
Speaker 3: this three drug protocol. First there's a sedative, then there's
Speaker 3: a paralytic, and then there's finally a potassium chloride which
Speaker 3: is supposed to stop the heart.
Speaker 2: How did that protocol come to be developed?
Speaker 6: It was dreamt up in an afternoon in Oklahoma in
Speaker 6: the nineteen seventies by a state senator and the Oklahoma
Speaker 6: Medical Examiner who were just kind of spitballing about how
Speaker 6: they might replace the electric chair with something quote more
Speaker 6: humane unquote, and their model was, well, why don't we
Speaker 6: do for humans what we do with horses, which was
Speaker 6: a suggestion that had come from Ronald Reagan, then governor
Speaker 6: of California. So they just sort of generally thought, well,
Speaker 6: we can do a version of what we do in
Speaker 6: those instances, only we'll just ramp up the dose. You know,
Speaker 6: this is also what kind of anesthesia.
Speaker 3: Sometimes this is advertised as something that is supposed to
Speaker 3: be painless.
Speaker 6: Yeah, they had been using and these drugs were also
Speaker 6: in use in the medical setting. But their idea was
Speaker 6: we'll take a protocol that loosely based on what is
Speaker 6: used in a medical setting and ramp up the doses
Speaker 6: so that instead of merely sedating somebody or killing them.
Speaker 6: And it wasn't thought through, tested, analyzed, peer reviewed. It
Speaker 6: was literally two guys dreaming up something in the back
Speaker 6: of an envelope, and one of the guys, the medical examiner,
Speaker 6: later regretted his part in the whole procedure, but the
Speaker 6: genie was out of the bottle and everybody jumped on
Speaker 6: this as an advance over the previous iteration of killing technology.
Speaker 2: In addition to being advertised as painless.
Speaker 3: It's also supposed to be within the bounds of the
Speaker 3: Eighth Amendment protection against Cruel and Unusual punishment.
Speaker 2: Can you tell us about that?
Speaker 6: Yeah, Well, in order to satisfy that prohibition against cruel
Speaker 6: and unusual punishment, you have to have some insight as
Speaker 6: to what the condemned prisoner is going through when they
Speaker 6: are being subjected to this protocol. The universe of people
Speaker 6: engaged in the Capital Punishment Project were universally indifferent to
Speaker 6: trying to find out how exactly this worked. They weren't
Speaker 6: curious at all to figure out, for example, was there
Speaker 6: any suffering that was associated with this three drug protocol?
Speaker 6: Or which of the three drugs is killing you? Or
Speaker 6: I mean, I could go on and on and on.
Speaker 6: Were they just implemented it and because it looked good
Speaker 6: for me outside, Because you have given someone a sedative
Speaker 6: and a paralytic, it's impossible to tell from the outside
Speaker 6: whether they're going through any kind of suffering. It was
Speaker 6: just assume that there should be no there must be
Speaker 6: no suffering going on on the inside. And the Eighth
Speaker 6: Amendment does not say that people should not be subjected
Speaker 6: to the appearance of cruel and unusual punishment. It says no, No,
Speaker 6: the actual punishment itself for the individual should not be
Speaker 6: cruel and unusual. So there was at no point could
Speaker 6: anyone in the early history of this did anyone truly
Speaker 6: satisfy the intent of the Eighth Amendment.
Speaker 3: Well, Leanna, you've written a lot about this protocol as well,
Speaker 3: and the Supreme Court has taken a stance on it.
Speaker 4: Tell us about that. Yeah, So, one thing that's really
Speaker 4: important to understand about the Eighth Amendment and the death
Speaker 4: penalty in this country is that the US Supreme Court
Speaker 4: has weighed in on the death penalty numerous times, including
Speaker 4: but has never invalidated a method of execution as violating
Speaker 4: the Eighth Amendment ban on cruel and unusual punishment. And
Speaker 4: that fact right there, I think speaks volumes. But one
Speaker 4: of the cases that I go back to over and
Speaker 4: over again in my work about lethal injection and about
Speaker 4: other execution methods dates back to the nineteen forties, and
Speaker 4: it's a case involving a man named Willie Francis, who
Speaker 4: was a teenager, black teenager who had been condemned to
Speaker 4: die in Louisiana. They sent him to the electric chair
Speaker 4: in nineteen forty six, and he survived. He survived their
Speaker 4: initial attempts to execute him. It's a grotesque ordeal. There's
Speaker 4: been a lot written historically about this, but that case,
Speaker 4: they the execution. He appealed to the US Supreme Court
Speaker 4: and a majority of justices found that attempting to kill
Speaker 4: him again wouldn't violate the Eighth Amendment, and they sent
Speaker 4: him back in nineteen forty seven. They succeeded in killing him.
Speaker 4: But the language that comes out of the court in
Speaker 4: this case really goes a long way to helping us
Speaker 4: understand how we ended up where we are now. You know,
Speaker 4: they essentially said accidents happen, accidents happened for which no
Speaker 4: man is to blame. And there's another turn of phrase
Speaker 4: that's really galling in which essentially they call this ordeal
Speaker 4: that he suffered an innocent misadventure. And this language, this
Speaker 4: idea is that this was an innocent misadventure, finds its
Speaker 4: way into subsequent rulings decades later. So in two thousand
Speaker 4: and eight, I believe it was the US Supreme Court
Speaker 4: took up the three Drug Protocol, which at the time
Speaker 4: was being used by Kentucky. This was a case called
Speaker 4: Bays versus Rees, and there was a lot of evidence.
Speaker 4: There was a lot that the justices had to look
Speaker 4: at that should have given them pause about the fact
Speaker 4: that this protocol was not rooted in science, that there
Speaker 4: had been many botched executions in terms of the inability
Speaker 4: to find a vein, in terms of evidence that people
Speaker 4: were suffering on the gurney. The US Supreme Court upheld
Speaker 4: that protocol, and yet right around the time that they
Speaker 4: handed down that ruling, states began sort of tinkering with
Speaker 4: the lethal injection protocol that had been the prevailing method
Speaker 4: for so long. Without getting too deep in the weeds,
Speaker 4: the initial drug, the drug that was supposed tonestize people
Speaker 4: who were being killed by lethal injection, had been originally
Speaker 4: a drug called sodium thiopental, which was thought to be
Speaker 4: believed to be, for good reasons, something that could basically
Speaker 4: put a person under and where they wouldn't necessarily feel
Speaker 4: the noxious effects of the subsequent drugs. States were unable
Speaker 4: to get their hands on this drug for a number
Speaker 4: of reasons and subsequently began sort of swapping out other
Speaker 4: drugs to replace that drug, and different states tried different things.
Speaker 4: A number of states eventually settled on this drug called medaslum,
Speaker 4: which is a sedative which does not have the same
Speaker 4: properties as the previous drug and has been over and
Speaker 4: over again experts have said that this is not a
Speaker 4: drug that's going to be effective in providing and anesetizing
Speaker 4: people for the purpose of lethal injection, and the Supreme
Speaker 4: Court was once again ruled that this was true. In Oklahoma,
Speaker 4: this was the case Golossip versus gross which the Supreme
Speaker 4: Court heard after there had been a very high profile,
Speaker 4: really gruesome botched execution a man named Clayton Lockett, who
Speaker 4: was executed in twenty fourteen. This ended up going up
Speaker 4: to the Supreme Court, and I covered that oral argument,
Speaker 4: and what was really kind of astonishing about that oral
Speaker 4: argument wasn't just how grotesque it all was, but the
Speaker 4: fact that the justices were very clearly very annoyed, very
Speaker 4: cranky about the fact that, you know, only a few
Speaker 4: years after having upheld this three drug protocol, now they're
Speaker 4: having to deal with this thing again, and they again
Speaker 4: they upheld this protocol despite a lot of evidence that
Speaker 4: this was completely inhumane, that there was a lot of
Speaker 4: reasons to be concerned that people were suffering on the
Speaker 4: gurney while being put to death by lethal injection. And
Speaker 4: so the reason I go back to the Willy Francis
Speaker 4: case is that it really tells us everything that we
Speaker 4: need to know, which is that if you have decided
Speaker 4: that people condemned to die in this country are less
Speaker 4: than human and that their suffering doesn't matter, then there's
Speaker 4: no limits on what you are willing to tolerate and
Speaker 4: uphold in sort of upholding this death protocol that we've
Speaker 4: invented in this country. And so the Supreme Court has
Speaker 4: weighed not only on the three Drug Protocol but on
Speaker 4: execution methods in general, and they have always found that
Speaker 4: there's not really a problem here.
Speaker 6: Say, at a certain point, it becomes obvious that the
Speaker 6: cruelty is the point the Eighth Amendment does not actually
Speaker 6: have any kind of impact on their thinking, because they
Speaker 6: are anxious to preserve the very thing about capital punishment
Speaker 6: that is so morally noxious, which is.
Speaker 2: That it's cruel, Right, Malcolm.
Speaker 3: One interesting thing that you talk about in the series
Speaker 3: is this concept of judicial override in Alabama, where a
Speaker 3: judge was able to impose a death sentence even if
Speaker 3: the jury recommended life in prison. This went on until
Speaker 3: twenty seventeen. As we know, death penalty cases can take decades,
Speaker 3: so it's possible that there are still people on death
Speaker 3: row who have been impacted by judicial override. What's your
Speaker 3: sense about how judges who went that route justified their decisions,
Speaker 3: if at all.
Speaker 6: Yeah. So, Alabama was one of a number of a
Speaker 6: small number of states who, in response to the Supreme
Speaker 6: Court's hesitancy about capital punishment in the nineteen seventies, instituted
Speaker 6: rules which said that a judge can override a jury's
Speaker 6: sentencing determination in a capital case. So if a jury
Speaker 6: says we want life imprisonment without parole, the judge could
Speaker 6: impose the death penalty, or vice versa. The motivation for
Speaker 6: these series of override laws, and are only about three
Speaker 6: or four states at Florida, Alabama, a couple of others
Speaker 6: had them, is kind of murky, but I suspect what
Speaker 6: they wanted to do was to guard against the possibility
Speaker 6: that juries would become overwhelmingly lenient. The concern was that
Speaker 6: if the public sentiment was moving away from death penalty
Speaker 6: to the extent that it would be difficult to impose
Speaker 6: the death penalty in capital cases unless you allowed judges
Speaker 6: to independently assert their opinion when it came to sentencing.
Speaker 6: And I also suspect that there's to be in saints
Speaker 6: like Alabama, there was a little bit of a racial
Speaker 6: motivation that they thought that black jeries would be unlikely
Speaker 6: to vote for the death penalty for black defendants, and
Speaker 6: they wanted to reserve the right to act in those cases.
Speaker 6: And what happens in Alabama is that other states gradually
Speaker 6: abandon this policy, but Alabama sticks to it. And Alabama
Speaker 6: sticks not only that they have the most extreme version
Speaker 6: of it. They basically allow the judge to overrule under
Speaker 6: any circumstances without giving an explanation for why. And when
Speaker 6: they finally get rid of this, they don't make it retroactive,
Speaker 6: so they only say going forward, we're not going to
Speaker 6: do override, but we're not going to spare people who
Speaker 6: have already who are on death row now because of override,
Speaker 6: We're not going to spare their lives. And it raises
Speaker 6: this question of what you know. The reason we call
Speaker 6: our series the Alabama Murders is that when you look
Speaker 6: very closely at the case we're interested in, you quickly
Speaker 6: come to the conclusion there's something particularly barbaric about the
Speaker 6: political culture of Alabama. I'm not news by the way,
Speaker 6: for anyone who knows any about Alabama, but Alabama's it's
Speaker 6: its own thing, you know, and they remain to this
Speaker 6: day kind of clinging to this notion that they need
Speaker 6: every possible defense against the possibility that a convicted murderer
Speaker 6: could escape with his life.
Speaker 4: Right.
Speaker 3: Speaking of just this idea of the title of the show,
Speaker 3: I also want to bring up that I did not
Speaker 3: know that the autopsy and an execution, and I don't
Speaker 3: know that this is unique to Alabama, but that it
Speaker 3: marks the death as a homicide. I was actually shocked
Speaker 3: to hear that.
Speaker 6: Yes, that interesting. That is the one moment of the
Speaker 6: one moment of honesty, right, and self awareness in this
Speaker 6: entire process.
Speaker 3: Right, And that's why it's it's shocking. It's not shocking
Speaker 3: because we know it's a homicide. It's shocking because they're
Speaker 3: admitting to it in a record that is, you know,
Speaker 3: accessible to the public at some point after a quick break.
Speaker 3: More from Malcolm Gladwell, journalist, author and host of the
Speaker 3: new Pushkin podcast The Alabama Murders, and Intercept Senior reporter
Speaker 3: Liliana Segura. Malcolm, you mentioned the racial dynamic with Alabama
Speaker 3: in particular, but Lilian, I want to ask if you
Speaker 3: could maybe speak to the historic link between sort of
Speaker 3: the development of the death penalty and the history of
Speaker 3: lynching in the South.
Speaker 4: So it's really interesting Alabama is in many ways the
Speaker 4: poster child for this line that can be drawn between
Speaker 4: not only lynching, but slavery to lynching, to reconstruction to
Speaker 4: state sanctioned murder. And that's kind of an uneasy line
Speaker 4: to draw in the sense of, you know, there's a
Speaker 4: reason that Brian Stephenson, who is the head of the
Speaker 4: Equal Justice Initiative, has called it a penalty the step
Speaker 4: child of lynching. He calls it the step child of lynching,
Speaker 4: and it's because, you know, there's something of an indirect link,
Speaker 4: but it's an absolutely it's that link is real and
Speaker 4: you really see it in Alabama and certainly in the South.
Speaker 4: And so I think it was in twenty eighteen I
Speaker 4: went down to Montgomery a number of times for the
Speaker 4: opening of Eji's memorial, you know, lynching memorial that they
Speaker 4: had launched there, and this was a major event and
Speaker 4: at the time I went with sort of this this
Speaker 4: link in mind to try to sort of interrogate and
Speaker 4: understand this history a little bit better, and I ended
Speaker 4: up writing this big, long piece which I only recently
Speaker 4: went back to reread because it's not fresh in my
Speaker 4: mind anymore. But one of the things that is absolutely,
Speaker 4: undoubtedly true is that the death penalty in the South
Speaker 4: in its early days was justified using the exact same
Speaker 4: rationale that people used for lynching, which was that this
Speaker 4: was about protecting white women from sexually predatory black men.
Speaker 4: And that line, that consistent sort of feature of executions,
Speaker 4: whether it was an extra judicial lynching or an execution
Speaker 4: carried out by the state, has been really consistent and
Speaker 4: I think overlooked in the history of the death penalty.
Speaker 4: And part of the reason it's overlooked is that, again
Speaker 4: going back to the Supreme Court, there have been a
Speaker 4: number of times that this history has come before the
Speaker 4: Supreme Court and other courts, and by and large the
Speaker 4: reaction has been to look away, to sort of deny this,
Speaker 4: and that is absolutely true. In the years leading up
Speaker 4: to the nineteen seventy two case Firm and versus Georgia,
Speaker 4: which Malcolm alluded to earlier, there was this moment where
Speaker 4: the Supreme Court sort of had to pause executions, and
Speaker 4: this was a four year period in the seventies. Nineteen
Speaker 4: seventy two was Firman versus Georgia, nineteen seventy six was
Speaker 4: greg versus Georgia. Part of the reason that Furman, which
Speaker 4: was this nineteen seventy two case, invalidated the death penalty
Speaker 4: across the country was because there was evidence that executions,
Speaker 4: that death sentences were being handed down in what they
Speaker 4: called an arbitrary way. And in reality, it wasn't so
Speaker 4: much arbitrariness as very clear evidence of sentences that were
Speaker 4: being given disproportionately to people of color, to black people,
Speaker 4: and the history showed that that was largely motivated by
Speaker 4: cases in which a victim was white. It was a
Speaker 4: white woman maybe who had been subjected to sexual violence.
Speaker 4: You know, there is that link, and I think it's
Speaker 4: really important to sort of remember that. In Alabama. One
Speaker 4: of the really interesting things too, going back to judicial override,
Speaker 4: there's this kind of irony in the history of judicial
Speaker 4: override in the way that it was carried out by
Speaker 4: judges where Alabama, when they restarted the death penalty in
Speaker 4: the early eighties was getting a lot of flack for
Speaker 4: essentially having a racist death penalty system, and of course
Speaker 4: there was a lot of defensiveness around this, and there
Speaker 4: were judges who actually, in cases where juries did not
Speaker 4: come back with a death sentence for a white defendant,
Speaker 4: there were cases where judges then overrode that decision in
Speaker 4: a sort of display of fairness. And one of the
Speaker 4: things that I found when I was researching my piece
Speaker 4: from twenty eighteen was that there was a judge and
Speaker 4: I believe it was nineteen ninety nine, who explained, you
Speaker 4: know why he overrode the jury in sentencing this particular
Speaker 4: white man to die. And he said, if I hadn't
Speaker 4: imposed the death sentence, I would have sentenced three black
Speaker 4: people to death and no white people. So this was
Speaker 4: his way of ensuring fairness. Well, I got to overwrite
Speaker 4: it here, never mind what it might say about the
Speaker 4: jury seemed a decision not to hand down a death
Speaker 4: sentence for a white person, you know, they needed. Again,
Speaker 4: it goes back to appearance. They needed the appearance of fairness.
Speaker 4: And so Alabama really does typify a certain kind of
Speaker 4: racial dynamic and early history of the death penalty that
Speaker 4: you see throughout the South, especially not just the South,
Speaker 4: but especially in the South.
Speaker 3: One of the things proponents of the death penalty are
Speaker 3: adamant about is that it requires some element of secrecy
Speaker 3: to survive. Executions happen behind closed walls in small rooms
Speaker 3: late at night. The people involved never have their identities
Speaker 3: publicly revealed or their credentials, the concern being that if
Speaker 3: people really knew what was involved, there would be a
Speaker 3: massive public outcry. Malcolm, in this series, you describe in
Speaker 3: gruesome detail what is actually involved in an execution. For
Speaker 3: folks who haven't heard the series, tell us about that.
Speaker 4: Well.
Speaker 6: In Alabama, there is a long execution protocol, kind of
Speaker 6: a written script, which was made public only because it
Speaker 6: came out during a lawsuit, which kind of lays out
Speaker 6: all the steps that the state takes. And Alabama also has,
Speaker 6: to your point, an unusual level of secrecy. For example,
Speaker 6: in many states, the entire execution process is open at
Speaker 6: least to witnesses. In Alabama, they you only see the
Speaker 6: person after they've found a vein. So the Kenny Smith
Speaker 6: case we were talking about, where they spend hours unsuccessfully
Speaker 6: trying to find a vein, that was all done behind
Speaker 6: closed doors. And the second thing is you point out
Speaker 6: is that people who are involved remain anonymous. And you
Speaker 6: can understand why. I mean, it's a kind of it
Speaker 6: is an acknowledgement on the part of these states that
Speaker 6: they are engaged in something shameful. Right, if they were
Speaker 6: as kind of morally clear headed as they claim to be,
Speaker 6: then what would be the problem with making every aspect
Speaker 6: of the process public. But instead they go in the
Speaker 6: opposite direction and they try and shroud it. They make
Speaker 6: it as much of a mystery as they can. And
Speaker 6: you know, it's funny. So much of our knowledge about
Speaker 6: death palic procedures only comes out because of lawsuits. It
Speaker 6: is only under the compulsion of the judicial process that
Speaker 6: we learn any even the smallest tidbit about what's going
Speaker 6: on or what kind of thought would into a particular procedure.
Speaker 6: When we're talking about the state taking the life of
Speaker 6: a citizens of the United States, that's weird, right. We
Speaker 6: have more transparency over the most prosaic aspects of government
Speaker 6: practice than we do about something that involves something as
Speaker 6: important as taking someone's life.
Speaker 3: Well, Leanna, you've witnessed two executions. Tell us about your experience,
Speaker 3: and particularly this aspect of secrecy surrounding the process.
Speaker 4: Well, let me just pick up first on the secrecy piece,
Speaker 4: because one of the really bizarre aspects of the death
Speaker 4: penalty when you've covered it in different states and looked
Speaker 4: at the federal system as well, is that there's just
Speaker 4: this wide range when it comes to what states and
Speaker 4: jurisdictions are willing to reveal and show. What they are
Speaker 4: not willing to reveal is certainly the individuals involved. A
Speaker 4: ton of states or death penalty states have passed secrecy legislation,
Speaker 4: essentially bringing all of that information even further behind closed doors.
Speaker 4: So you know, the identity of the executioners was always
Speaker 4: sort of a secret, but now we don't get to
Speaker 4: know where they get the drugs. We don't get to know,
Speaker 4: you know, and in some states, in some places, the
Speaker 4: secrecy is really sort of shocking. Indiana. I just wrote
Speaker 4: a story about Indiana, which recently restarted executions, and Indiana
Speaker 4: is the only act of death penalty state that does
Speaker 4: not allow any media witnesses. There is nothing, you know,
Speaker 4: and that's exceptional. And if you go and try as
Speaker 4: a journalist to cover an execution in Indiana, it's not
Speaker 4: going to be like in Alabama and Oklahoma, where you know,
Speaker 4: the head of the doc comes out and addresses things
Speaker 4: and says, you know, whether true or not true, everything
Speaker 4: went great. No, you are in a parking lot at
Speaker 4: midnight across from the prison. There is absolutely nobody coming
Speaker 4: to tell you what happened. It's a sort of ludicrous
Speaker 4: display of indifference and contempt, frankly for the press or
Speaker 4: for the public that has a right and an interest
Speaker 4: in knowing what's happening in their names. So secrecy there's
Speaker 4: a range, I guess, is my point. And yes, most
Speaker 4: places err on the side of not revealing anything, but
Speaker 4: some take that a lot further than others. In terms
Speaker 4: of the experience of witnessing an execution, you know, that's
Speaker 4: obviously a big question. I will say that both those
Speaker 4: executions were in Oklahoma. That is a state that has
Speaker 4: a really ugly, sordid history of botched executions going back
Speaker 4: longer than ten years. But Oklahoma became sort of infamous
Speaker 4: on the world stage about ten years ago a little
Speaker 4: more for botching a series of executions. I've been covering
Speaker 4: the case of Richard Glossip for a while. Richard Glossip
Speaker 4: is a man with a long standing innocence claim whose
Speaker 4: death sentence and conviction was overturned only this year. Richard
Speaker 4: Glossip was almost put to death by the state of
Speaker 4: Oklahoma in twenty fifteen, and I was outside the prison
Speaker 4: that day. And it's only because they had the wrong
Speaker 4: drug on hand that it did not go through. And
Speaker 4: so going into a situation where I was preparing to
Speaker 4: witness an execution in Oklahoma, I was all too keenly
Speaker 4: aware of the possibility that something could go wrong. And
Speaker 4: that's just something you know when you're covering this stuff.
Speaker 4: And instead, you know, Oklahoma carried out the three drug
Speaker 4: protocol execution of a man named Anthony Sanchez in September
Speaker 4: of twenty twenty three. I had written about Anthony's case,
Speaker 4: I had spoken to him the day before and for
Speaker 4: the better part of a year, and I think I'm
Speaker 4: still trying to understand what I saw that day, because
Speaker 4: you know, by all appearances, things looked like they went
Speaker 4: as smoothly as one would hope. Right, he was covered
Speaker 4: with a sheet. He you know, you sort of saw
Speaker 4: the color in his face change. He went still, and
Speaker 4: as a journalist or just an ordinary person trying to
Speaker 4: describe what that meant and what I was seeing I
Speaker 4: couldn't really tell you, because the process, by design was
Speaker 4: made to look that way. But I could not possibly
Speaker 4: guess as to what he was experiencing. And again that's
Speaker 4: because lethal injection and that three drug protocol has been
Speaker 4: designed to make it look humane and make it look
Speaker 4: like everything's gone smoothly. I will say one thing that
Speaker 4: has really stuck with me about that execution was that
Speaker 4: I was sitting right behind the Attorney General of Oklahoma,
Speaker 4: Getner Drummond, who has attended, i think to his credit, frankly,
Speaker 4: but who has attended every execution that has been carried
Speaker 4: out in Oklahoma under his tenure, and he was sitting
Speaker 4: in front of me, and a member of the one
Speaker 4: witness who was there, who I believe was a member
Speaker 4: of Anthony's family, was sitting sort of one seat over,
Speaker 4: and after the execution was over, she was kind of
Speaker 4: quietly weeping, and Getner Drummond, the Attorney General who was
Speaker 4: responsible for this execution, kind of, you know, put his
Speaker 4: hand on her and said, I'm sorry for your loss.
Speaker 4: And it was this really bizarre moment because he was
Speaker 4: acknowledging that this was a loss that this death of
Speaker 4: this person that she clearly cared about, he was responsible
Speaker 4: for it. And I don't know that he has ever
Speaker 4: said something like that since, because a lot of us
Speaker 4: journalists in the room, you know, sort of reported back,
Speaker 4: and it's almost like you're not supposed to say that.
Speaker 4: You know, there shouldn't be sorrow here. Really, you know,
Speaker 4: this is justice, this is what's being done in our name.
Speaker 4: And I'm still trying to sort of figure out how
Speaker 4: i feel about that, because, by and large, in the
Speaker 4: executions I've recorded on, you don't have the Attorney General
Speaker 4: himself or the prosecutor who sent this person to death
Speaker 4: row attending the execution. It's sort of out of sight, out.
Speaker 2: Of mind, Malcolm.
Speaker 3: As we've talked about and has been repeatedly documented, the
Speaker 3: way that the death penalty has been applied has been
Speaker 3: racist and classes disproportionally affecting black and Latino people and
Speaker 3: poor people. Is also historically penalized people who have mental
Speaker 3: health issues or intellectual disabilities. Even with all that evidence,
Speaker 3: why does this persist? How has vengeance become such a
Speaker 3: core part of the American justice system?
Speaker 6: Well, as I said before, I think what's happened is
Speaker 6: that the people who are opposed to death penalty are
Speaker 6: having a different conversation than the people who are in
Speaker 6: favor of it. That the people who are in favorite
Speaker 6: are trying to make a kind of moral statement about
Speaker 6: society's ultimate intolerance of people who violate certain kinds of norms,
Speaker 6: and they are in the pursuit of that kind of
Speaker 6: moral statement willing to go to almost any lengths. And
Speaker 6: on the other side are people who are saying that
Speaker 6: going this far is outside of the moral boundaries of
Speaker 6: a civilized state. Those are two very different claims that
Speaker 6: proceed on very different assumptions, and we're talking past each other,
Speaker 6: I would even so, my point is it doesn't matter
Speaker 6: to those who are making a broad moral statement about
Speaker 6: society's intolerance what this conditioned status, background makeup of the
Speaker 6: convicted criminal is, because they're not basing their decision on
Speaker 6: the humanity of the defendant, the criminal defendant. They're making
Speaker 6: a broad moral point, right right. And I wonder I've
Speaker 6: often wondered whether, in doing series as I did that
Speaker 6: focus so heavily on the details of an execution, I'm
Speaker 6: kind of contributing to the problem that if opponents make
Speaker 6: it all about the individual circumstances of the defendant, the
Speaker 6: details of the case, was the person guilty or not,
Speaker 6: was the kind of punishment cruel and unusual. We're kind
Speaker 6: of buying into the moral error here because we're opening
Speaker 6: the possibility that if all we were doing was executing
Speaker 6: people who were one hundred percent guilty, and if our
Speaker 6: method of execution was proven without a shadow of doubt
Speaker 6: to be quote unquote humane, then we don't have a
Speaker 6: case anymore.
Speaker 2: Right then it'd be fine.
Speaker 6: And I, you know, so I look at what I've done.
Speaker 6: That's my one reservation about spending all this time on
Speaker 6: the Kenny Smith case is that we shouldn't have to
Speaker 6: do this. It should be enough to say that even
Speaker 6: the worst person in the world does not deserve to
Speaker 6: be murdered by a state. That's not what states do
Speaker 6: right in a civilized society. That one sentence ought to
Speaker 6: be enough. And it's kind of a symptom of how
Speaker 6: distorted this argument has become that it's not enough.
Speaker 2: Well, Lean, I want to briefly get your thoughts on
Speaker 2: this too.
Speaker 4: Yeah, I think that people who are oppose to the
Speaker 4: death penalty and abolitionists often times sort of say this
Speaker 4: is a broken system, and we talk about prisons in
Speaker 4: that way. This is a broken system. And I think
Speaker 4: it's a mistake to say that this is a broken system,
Speaker 4: because I don't think that this system at its best,
Speaker 4: as you've just discussed, would be fine if it only
Speaker 4: worked correctly. I think that that's absolutely not the case,
Speaker 4: and so I do agree that the system. I don't
Speaker 4: hide the fact that I'm very opposed to the death penalty.
Speaker 4: I don't think that you can design it and improve
Speaker 4: it and make it fair and make it just. I
Speaker 4: also think that part of the reason that people have
Speaker 4: a hard time saying that is that if you were
Speaker 4: to say that about the death penalty in this country,
Speaker 4: for all of the reasons that that may be true,
Speaker 4: then you would be forced to deal with the criminal
Speaker 4: justice system more broadly and with prisons and sentencing as
Speaker 4: a whole. And I think that there's a real reluctance
Speaker 4: to see the problems that we see in death penalty
Speaker 4: cases in that broader context, because what does that mean
Speaker 4: for this country if you're calling the question on mass
Speaker 4: incarceration and in the purpose that these sentences serve.
Speaker 3: We've covered a lot here. I want to thank you
Speaker 3: both for joining me on the Intercept Briefing.
Speaker 6: Thank you so much.
Speaker 4: Thank you.
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Speaker 3: I'm MICHAELA. Lacey