WEBVTT - Understanding the Death Penalty: Malcolm Gladwell on The Intercept Briefing 0:00:15.356 --> 0:00:22.076 Pushkin Hey revisionist history listeners ben out of Hafer here 0:00:22.836 --> 0:00:26.596 this past season on Revisionist History, the Alabama Murders, we 0:00:26.676 --> 0:00:29.756 told the tale of how one death snowballed into a 0:00:29.756 --> 0:00:34.196 cascade of moral failures masked with legal fig leaves the 0:00:34.236 --> 0:00:38.236 misunderstanding of what constitutes reasonable doubt, the myth that there's 0:00:38.236 --> 0:00:41.636 a painless way to kill somebody. At its core, the 0:00:41.676 --> 0:00:45.196 Alabama Murders is a searing critique of cruelty in America 0:00:45.716 --> 0:00:48.516 in the legal system that allows that cruelty to thrive. 0:00:49.756 --> 0:00:52.076 But the story goes much deeper than a single case 0:00:52.156 --> 0:00:54.996 or a single incident from the nineteen eighties. As of 0:00:55.036 --> 0:00:58.796 December one this year, eleven states have executed a total 0:00:58.876 --> 0:01:02.996 of forty four people, making twenty twenty five one of 0:01:03.036 --> 0:01:07.036 the deadliest years for state sanctioned killings, and in Alabama, 0:01:07.196 --> 0:01:11.236 they're still using nitrogen hypoxia, the brutal method pioneered in 0:01:11.316 --> 0:01:16.596 Kenny Smith's final execution. Malcolm recently joined Liliana Segura, a 0:01:16.636 --> 0:01:20.636 criminal justice reporter at the Intercept, to discuss capital punishment 0:01:20.996 --> 0:01:23.356 and what happens when a legal system that's supposed to 0:01:23.436 --> 0:01:28.276 catch mistakes and reduce harm doesn't. They also talk about 0:01:28.276 --> 0:01:31.076 why Malcolm felt drawn to investigate the death penalty in 0:01:31.116 --> 0:01:34.036 the series. It's a great conversation and we thought that 0:01:34.116 --> 0:01:36.196 listeners of the series might want to hear it here, 0:01:36.556 --> 0:01:39.196 So here's the episode. Thanks for listening. 0:01:44.276 --> 0:01:46.796 Welcome to the Intercept Briefing. I'm Mikaela Lacey. 0:01:47.596 --> 0:01:51.276 As of December first, officials across the US have executed 0:01:51.476 --> 0:01:55.316 forty four people in eleven states, making twenty twenty five 0:01:55.636 --> 0:01:58.876 one of the deadliest years for state sanctioned executions in 0:01:58.916 --> 0:02:02.876 recent history. According to the Death Penalty Information Center, three 0:02:02.996 --> 0:02:06.036 more people are scheduled for execution before the new year. 0:02:06.556 --> 0:02:09.796 The justification for the death penalty is and it's supposed 0:02:09.836 --> 0:02:13.396 to be the ultimate punishment for the worst crimes, but 0:02:13.436 --> 0:02:17.036 in reality, who gets sentenced to die depends on things 0:02:17.036 --> 0:02:21.036 that often have nothing to do with guilt or innocence. Historically, 0:02:21.276 --> 0:02:25.196 judges have disproportionately sentenced black and Latino people to death. 0:02:25.636 --> 0:02:28.356 A new report from the American Civil Liberties Union released 0:02:28.356 --> 0:02:31.156 in November, found that more than half of the two 0:02:31.316 --> 0:02:35.076 hundred people exonerated from death row since nineteen seventy three 0:02:35.316 --> 0:02:39.076 were black. Executions had been on a steady decline since 0:02:39.116 --> 0:02:41.916 their peak in the late nineteen nineties, but the numbers 0:02:41.916 --> 0:02:44.716 slowly started to creep back up in recent years, more 0:02:44.756 --> 0:02:47.836 than doubling from eleven in twenty twenty one to twenty 0:02:47.916 --> 0:02:51.956 five last year, and we've almost doubled that again this year. 0:02:52.436 --> 0:02:55.116 Several states have stood out in their efforts to ramp 0:02:55.236 --> 0:03:00.996 up executions and conduct them at a faster piece, including Alabama. 0:03:01.156 --> 0:03:04.876 Malcolm Gladwell's new podcast series, The Alabama Murders Dies into 0:03:04.956 --> 0:03:08.436 one case to understand what the system really looks like, 0:03:08.876 --> 0:03:11.156 how it operates, and its inherent brutality. 0:03:11.596 --> 0:03:11.956 Thank you. 0:03:11.996 --> 0:03:15.836 Just got on from work and they come and he said, well, mom, 0:03:15.876 --> 0:03:16.396 can you come? 0:03:16.516 --> 0:03:18.196 He said, the police are here. 0:03:19.116 --> 0:03:21.116 There's no sense in even having a jury. 0:03:22.276 --> 0:03:23.756 If you if you're. 0:03:23.596 --> 0:03:26.676 Going to be able to overturn the jury, if a 0:03:26.756 --> 0:03:31.156 judge can overturn the jury. He said, But I was involved, 0:03:31.836 --> 0:03:33.676 and that's a horrible thing I. 0:03:33.556 --> 0:03:34.276 Was involved in. 0:03:35.396 --> 0:03:37.716 I've been in prison twenty four twenty five years. 0:03:37.756 --> 0:03:39.156 That's probably not long enough. 0:03:39.756 --> 0:03:43.316 I didn't kill them. 0:03:43.476 --> 0:03:46.716 They get burned from the inside, and then glad just 0:03:46.916 --> 0:03:50.876 pours into the lungs and I'm sor he as I'm 0:03:50.916 --> 0:03:55.236 saying this it's awful and this is what this is 0:03:55.236 --> 0:03:57.956 how lethal injection actually kills you. 0:03:59.276 --> 0:04:03.396 Here's what I don't understand. Nobody noticed this till you. 0:04:03.476 --> 0:04:04.116 Apparently not. 0:04:05.876 --> 0:04:08.476 Today we're speaking with Gladwell, who's a writer at The 0:04:08.516 --> 0:04:12.156 New Yorker and co founder of the podcast network Pushkin Industries. 0:04:12.596 --> 0:04:16.076 And we're joined by Intercept senior reporter Lana Segura, who 0:04:16.116 --> 0:04:19.476 has covered capital punishment and criminal justice for two decades. 0:04:19.956 --> 0:04:23.116 We're going to talk about the deeply concerning issues surrounding 0:04:23.116 --> 0:04:26.996 capital punishment. How does the state decide who lives and 0:04:27.036 --> 0:04:29.996 who dies, what happens when the legal system that is 0:04:30.036 --> 0:04:32.956 supposed to catch mistakes doesn't, and what does it all 0:04:32.996 --> 0:04:36.916 say about our country? Malcolm, Lliana, Welcome to the show. 0:04:37.076 --> 0:04:39.476 Thank you, Thank you, Malcolm. 0:04:39.716 --> 0:04:44.116 The series starts by recounting the killing of Elizabeth Sennett, 0:04:44.196 --> 0:04:47.516 but very quickly delves into what happens to the two 0:04:47.556 --> 0:04:50.476 men convicted of killing her, John Parker and Kenny Smith. 0:04:50.756 --> 0:04:52.996 You spend a lot of time in this series explaining, 0:04:52.996 --> 0:04:55.916 sometimes in graphic detail, how the cruelty of the death 0:04:55.916 --> 0:05:00.196 penalty isn't only about the execution, but also about the 0:05:00.276 --> 0:05:04.236 system around it, the paperwork, the waiting. This is not 0:05:04.356 --> 0:05:07.196 the kind of subject matter that you typically tackle. What 0:05:07.276 --> 0:05:09.116 drew you to wanting to report on the death penal 0:05:09.556 --> 0:05:10.556 and criminal justice? 0:05:10.756 --> 0:05:14.156 Well, I wasn't initially intending to do a story about 0:05:14.196 --> 0:05:17.796 the death penalty. I on a kind of whim spend 0:05:17.836 --> 0:05:20.596 a lot of time with Cape Boorderfield, who's the psychologist 0:05:20.676 --> 0:05:25.716 who studies trauma, who shows up halfway through the Alabama murders, 0:05:26.076 --> 0:05:28.156 and I was just interviewing her about because I was 0:05:28.196 --> 0:05:32.196 interested in the treatment of traumatized people, and she just 0:05:32.236 --> 0:05:34.116 happened to mention that she'd been involved with the death 0:05:34.116 --> 0:05:37.956 penalty case, and her description of it was so kind 0:05:37.956 --> 0:05:41.276 of moving and compelling that I realized, Oh, that's the 0:05:41.316 --> 0:05:43.636 story I want to tell. But this did not start 0:05:43.676 --> 0:05:46.876 as a death penalty project. It started as a exploration 0:05:46.956 --> 0:05:50.436 of a psychologist's work, and it kind of took a detour. 0:05:51.116 --> 0:05:54.276 Tell us a little bit more about how the bureaucracy 0:05:54.476 --> 0:05:57.476 around the death penalty masks its inherent cruelty. 0:05:58.036 --> 0:06:00.756 Well, you know, there's a wonderful phrase that one of 0:06:00.756 --> 0:06:05.236 the people we interviewed, Joel's zibitt Uses, and he talks 0:06:05.236 --> 0:06:08.356 about how the death penalty. He was talking about lethal injection. 0:06:08.436 --> 0:06:12.116 But this is also true of nitrogen gas. He said, 0:06:12.156 --> 0:06:16.636 it is the impersonation of a medical act. And I 0:06:16.796 --> 0:06:21.076 think that phrase speaks volumes that a lot of what 0:06:21.196 --> 0:06:24.156 is going on here is a kind of performance that 0:06:24.276 --> 0:06:28.636 is for the benefit of the viewer. It has to 0:06:28.676 --> 0:06:32.356 look acceptable to those who are watching, to those who 0:06:32.356 --> 0:06:35.796 are kind of in society who are judging or observing 0:06:35.836 --> 0:06:40.036 the process. It is the management of perception that is 0:06:40.356 --> 0:06:45.396 compelling and driving the behavior here, not the actual treatment 0:06:45.516 --> 0:06:49.636 of the condemned prisoner him or herself. And once you 0:06:49.716 --> 0:06:51.756 understand that, oh, it's a performance and a lot of 0:06:51.756 --> 0:06:54.676 it makes sense. One of the crucial moments in a 0:06:54.716 --> 0:06:58.876 story we tell is you know where there is a 0:06:58.956 --> 0:07:02.476 hearing in which the attorneys for Kenny Smith are trying 0:07:02.516 --> 0:07:06.076 to get a stay of execution, and they start asking 0:07:06.156 --> 0:07:08.716 the State of Alabama, the corrections people in the state 0:07:08.756 --> 0:07:12.876 of Alibe, Obama, to explain, did they understand what they 0:07:12.876 --> 0:07:15.396 would do this was they were contemplating the use of 0:07:15.476 --> 0:07:19.396 nitrogen gas. Did they ever talk to a doctor about 0:07:19.516 --> 0:07:23.716 the risks associated with it? Did they ever contemplate any 0:07:23.756 --> 0:07:26.636 of the potential side effects? And it turns out they 0:07:26.636 --> 0:07:29.396 had done none. Of that, and it makes sense when 0:07:29.396 --> 0:07:33.156 you realize that's not what they're interested in. They're interested 0:07:33.196 --> 0:07:37.356 in the impersonation of a medical act, not the implementation 0:07:37.436 --> 0:07:41.076 of a medical act. The bureaucracy is there to make 0:07:41.116 --> 0:07:43.236 it look good. And that was one of the compelling 0:07:43.316 --> 0:07:44.156 lessons of the piece. 0:07:45.196 --> 0:07:48.236 And it's impersonating a medical act with people who are 0:07:48.236 --> 0:07:50.996 not doctors, right, Like, people who are not do not 0:07:51.076 --> 0:07:51.556 have this train. 0:07:51.756 --> 0:07:52.236 Yeah. 0:07:52.316 --> 0:07:55.116 In that hearing, there is this real incredible moment where 0:07:55.356 --> 0:07:58.196 one of the attorneys asks the man who heads Alabama's 0:07:58.236 --> 0:08:01.476 Department of Corrections, did you ever consult with any medical 0:08:01.516 --> 0:08:07.196 personnel about the choice of execution method and its possible problems? 0:08:07.356 --> 0:08:09.796 And the guy says no. And it's just like that, 0:08:09.876 --> 0:08:12.876 you just realize they're just mailing it in, like they 0:08:12.916 --> 0:08:17.556 have no State of Alabama is like, is not interested 0:08:17.676 --> 0:08:21.036 in exploring the kind of full implications of what they're doing. 0:08:21.396 --> 0:08:24.476 They're just engaged in this kind of incredibly sort of 0:08:25.116 --> 0:08:26.316 slap dash operation. 0:08:27.276 --> 0:08:28.876 Well, and I want to bring you in here. 0:08:28.916 --> 0:08:32.476 You've spent years reporting on capital punishment in the US 0:08:32.516 --> 0:08:34.916 and looked into many cases in different states. 0:08:35.516 --> 0:08:37.796 Why are states like Florida. 0:08:37.396 --> 0:08:41.196 And Alabama ramping up the number of executions. Is it 0:08:41.276 --> 0:08:44.196 all politics? What's going on there? 0:08:44.836 --> 0:08:48.116 Yeah, So that is one of the questions that I 0:08:48.156 --> 0:08:50.556 think a lot of us who cover this stuff have 0:08:50.676 --> 0:08:54.156 been asking ourselves all year long, and to some degree, 0:08:54.196 --> 0:08:56.676 it's always politics. The story of the death penalty, the 0:08:56.676 --> 0:09:00.076 story of executions so often really boils down to that 0:09:00.436 --> 0:09:04.276 we are in a political moment right now where the 0:09:04.396 --> 0:09:08.516 climate around executions certainly, but I think in general, the 0:09:08.636 --> 0:09:13.436 kind of appetite for our promotion of vengeance and sort 0:09:13.516 --> 0:09:18.916 of brutality towards our enemies is really shockingly real right now. 0:09:18.996 --> 0:09:21.996 And I was reluctant about a year ago to really 0:09:22.596 --> 0:09:26.516 trace our current moment to Trump. Right the death penalty 0:09:26.676 --> 0:09:29.516 has been a bipartisan project. I don't want to pretend 0:09:29.676 --> 0:09:32.356 like this is something that begins and ends with somebody 0:09:32.396 --> 0:09:36.636 like Trump that said, you know, it's really shocking to 0:09:36.756 --> 0:09:40.156 see the number of executions that are being pushed through, 0:09:40.836 --> 0:09:43.876 especially in Florida, and this is something that has been 0:09:43.956 --> 0:09:48.156 ramped up by Governor DeSantis for purely political reasons. You know, 0:09:48.236 --> 0:09:51.556 this death penalty push in Florida began with his political 0:09:51.596 --> 0:09:54.356 ambitions when he was originally going to run for president, 0:09:54.476 --> 0:09:57.596 and I think that that to some degree is a 0:09:57.636 --> 0:10:00.956 story behind a lot of death penalty policy, certainly going 0:10:00.996 --> 0:10:04.156 back decades, and certainly speaks to the moment we're in. 0:10:04.756 --> 0:10:07.356 I did want to just also touch on some of 0:10:07.356 --> 0:10:09.316 what Malcolm was talking about when it comes to to 0:10:10.116 --> 0:10:14.316 the performance, you know, of executions themselves. Over the past 0:10:14.396 --> 0:10:19.196 many years, I've reported on litigation death penalty trials that 0:10:19.316 --> 0:10:22.356 have taken place in states like Oklahoma and here in 0:10:22.396 --> 0:10:25.716 Tennessee where I live, where we restarted executions some years 0:10:25.756 --> 0:10:27.796 ago after a long time of not carrying any out 0:10:28.236 --> 0:10:31.596 and these trials had at the center the three drug 0:10:31.636 --> 0:10:35.956 protocol that is described so thoroughly in the podcast. And 0:10:36.116 --> 0:10:40.716 it is absolutely true that these are protocols that are 0:10:41.036 --> 0:10:43.436 sort of designed with all of these different steps and 0:10:43.476 --> 0:10:45.676 all of these different parts and made to look, you know, 0:10:46.036 --> 0:10:48.796 using the tools of medicine to kill, and made to 0:10:48.836 --> 0:10:51.036 look like this has really been thought through. But when 0:10:51.036 --> 0:10:53.556 you really trace that history as you do Malcolm in 0:10:53.596 --> 0:10:56.836 your podcast, there's no there there. I mean, these were 0:10:56.876 --> 0:11:02.676 invented for the purpose of having a humane appearing protocol, 0:11:02.916 --> 0:11:06.316 humane appearing method, and it sort of amounts to junk science. 0:11:06.356 --> 0:11:09.396 There was no way to test these methods. There was 0:11:09.436 --> 0:11:12.636 no nobody can tell us, as you describe in your podcast, 0:11:12.636 --> 0:11:16.836 what it feels like to, you know, undergo this execution process. 0:11:17.156 --> 0:11:19.476 And I think it's really important to remember that this 0:11:19.596 --> 0:11:21.516 is not only the story of lethal injection. This is 0:11:21.516 --> 0:11:24.276 a story of executions, you know, sort of writ large. 0:11:24.916 --> 0:11:28.476 When the electric chair came on the scene generations ago, 0:11:28.916 --> 0:11:32.636 it was also touted as the height of technology because 0:11:32.676 --> 0:11:35.636 it was using electricity and it was supposed to be 0:11:35.876 --> 0:11:38.436 more humane than hanging. There had been botched hangings that 0:11:38.476 --> 0:11:41.716 were seen as gruesome ordeals, you know. So there's this 0:11:41.796 --> 0:11:44.476 bizarre way in which history repeats itself when it comes 0:11:44.476 --> 0:11:46.476 to these methods that are promoted as you know, the 0:11:46.516 --> 0:11:50.436 height of modernity and humanity, and it's just completely bankrupt 0:11:50.596 --> 0:11:51.156 and false. 0:11:51.836 --> 0:11:54.316 Malcolm, do you want to add something, Yeah, I mean 0:11:54.716 --> 0:11:57.516 we have a big focus in the case I'm describing. 0:11:57.716 --> 0:12:01.836 Kenny Smith was notorious because he had a botched execution 0:12:01.876 --> 0:12:04.716 where they couldn't find a vein. And one of the 0:12:04.756 --> 0:12:07.836 points that Joel as if it makes is that, well, 0:12:07.836 --> 0:12:11.116 of course, they's not surprising that they in that case 0:12:11.156 --> 0:12:13.556 and in many others, they can't find a vein, because 0:12:13.956 --> 0:12:17.196 that is a medical procedure that is designed to be 0:12:17.836 --> 0:12:23.316 undertaken in a hospital setting by trained personnel with the 0:12:23.356 --> 0:12:26.996 cooperation of the patient. Right. Usually we'd find a vein 0:12:27.036 --> 0:12:29.756 and the patient cooperates because it's there we're trying to 0:12:29.796 --> 0:12:32.676 save their life or make them healthier. This is a 0:12:32.836 --> 0:12:36.396 use of this procedure that is completely different. It is 0:12:36.676 --> 0:12:39.556 outside of a medical institution, not being done by people 0:12:39.556 --> 0:12:43.196 who are experienced medical professionals, and is not being done 0:12:43.236 --> 0:12:46.636 with the cooperation of the patient. Right. The patient in 0:12:46.636 --> 0:12:49.076 this case is a condemned prisoner who is not in 0:12:49.116 --> 0:12:52.436 the same situation as someone who's ill and trying. 0:12:52.196 --> 0:12:52.716 To get better. 0:12:53.476 --> 0:12:56.316 I want to just walk our listeners through this. 0:12:56.436 --> 0:12:59.876 So this is again one of the pieces of the series, 0:13:00.196 --> 0:13:03.076 this three drug protocol. First there's a sedative, then there's 0:13:03.116 --> 0:13:06.636 a paralytic, and then there's finally a potassium chloride which 0:13:06.636 --> 0:13:07.916 is supposed to stop the heart. 0:13:08.676 --> 0:13:11.596 How did that protocol come to be developed? 0:13:12.356 --> 0:13:16.076 It was dreamt up in an afternoon in Oklahoma in 0:13:16.116 --> 0:13:21.156 the nineteen seventies by a state senator and the Oklahoma 0:13:21.196 --> 0:13:25.236 Medical Examiner who were just kind of spitballing about how 0:13:25.276 --> 0:13:28.636 they might replace the electric chair with something quote more 0:13:28.716 --> 0:13:31.636 humane unquote, and their model was, well, why don't we 0:13:31.676 --> 0:13:35.716 do for humans what we do with horses, which was 0:13:35.756 --> 0:13:38.916 a suggestion that had come from Ronald Reagan, then governor 0:13:38.916 --> 0:13:41.956 of California. So they just sort of generally thought, well, 0:13:42.636 --> 0:13:45.356 we can do a version of what we do in 0:13:45.396 --> 0:13:49.916 those instances, only we'll just ramp up the dose. You know, 0:13:49.996 --> 0:13:51.956 this is also what kind of anesthesia. 0:13:52.076 --> 0:13:54.956 Sometimes this is advertised as something that is supposed to 0:13:55.036 --> 0:13:56.356 be painless. 0:13:56.436 --> 0:13:58.356 Yeah, they had been using and these drugs were also 0:13:58.556 --> 0:14:02.516 in use in the medical setting. But their idea was 0:14:02.556 --> 0:14:05.516 we'll take a protocol that loosely based on what is 0:14:05.596 --> 0:14:08.916 used in a medical setting and ramp up the doses 0:14:09.356 --> 0:14:12.676 so that instead of merely sedating somebody or killing them. 0:14:13.356 --> 0:14:19.156 And it wasn't thought through, tested, analyzed, peer reviewed. It 0:14:19.236 --> 0:14:23.076 was literally two guys dreaming up something in the back 0:14:23.076 --> 0:14:26.116 of an envelope, and one of the guys, the medical examiner, 0:14:26.756 --> 0:14:30.436 later regretted his part in the whole procedure, but the 0:14:30.516 --> 0:14:33.996 genie was out of the bottle and everybody jumped on 0:14:34.076 --> 0:14:38.116 this as an advance over the previous iteration of killing technology. 0:14:39.316 --> 0:14:41.516 In addition to being advertised as painless. 0:14:41.556 --> 0:14:43.316 It's also supposed to be within the bounds of the 0:14:43.396 --> 0:14:46.436 Eighth Amendment protection against Cruel and Unusual punishment. 0:14:46.636 --> 0:14:47.676 Can you tell us about that? 0:14:48.276 --> 0:14:54.036 Yeah, Well, in order to satisfy that prohibition against cruel 0:14:54.076 --> 0:14:57.156 and unusual punishment, you have to have some insight as 0:14:57.196 --> 0:15:00.876 to what the condemned prisoner is going through when they 0:15:00.876 --> 0:15:05.156 are being subjected to this protocol. The universe of people 0:15:05.196 --> 0:15:11.716 engaged in the Capital Punishment Project were universally indifferent to 0:15:11.876 --> 0:15:15.316 trying to find out how exactly this worked. They weren't 0:15:15.476 --> 0:15:18.996 curious at all to figure out, for example, was there 0:15:19.036 --> 0:15:22.676 any suffering that was associated with this three drug protocol? 0:15:22.956 --> 0:15:25.516 Or which of the three drugs is killing you? Or 0:15:25.716 --> 0:15:27.036 I mean, I could go on and on and on. 0:15:27.236 --> 0:15:30.636 Were they just implemented it and because it looked good 0:15:30.676 --> 0:15:33.676 for me outside, Because you have given someone a sedative 0:15:33.676 --> 0:15:38.356 and a paralytic, it's impossible to tell from the outside 0:15:38.716 --> 0:15:41.796 whether they're going through any kind of suffering. It was 0:15:41.836 --> 0:15:44.276 just assume that there should be no there must be 0:15:44.316 --> 0:15:47.836 no suffering going on on the inside. And the Eighth 0:15:47.836 --> 0:15:51.356 Amendment does not say that people should not be subjected 0:15:51.356 --> 0:15:56.516 to the appearance of cruel and unusual punishment. It says no, No, 0:15:56.836 --> 0:16:00.556 the actual punishment itself for the individual should not be 0:16:00.596 --> 0:16:03.236 cruel and unusual. So there was at no point could 0:16:03.276 --> 0:16:07.196 anyone in the early history of this did anyone truly 0:16:07.236 --> 0:16:10.116 satisfy the intent of the Eighth Amendment. 0:16:10.796 --> 0:16:13.596 Well, Leanna, you've written a lot about this protocol as well, 0:16:13.596 --> 0:16:15.916 and the Supreme Court has taken a stance on it. 0:16:15.996 --> 0:16:18.836 Tell us about that. Yeah, So, one thing that's really 0:16:18.836 --> 0:16:22.476 important to understand about the Eighth Amendment and the death 0:16:22.476 --> 0:16:25.196 penalty in this country is that the US Supreme Court 0:16:25.236 --> 0:16:28.516 has weighed in on the death penalty numerous times, including 0:16:28.916 --> 0:16:34.036 but has never invalidated a method of execution as violating 0:16:34.076 --> 0:16:36.916 the Eighth Amendment ban on cruel and unusual punishment. And 0:16:37.036 --> 0:16:39.636 that fact right there, I think speaks volumes. But one 0:16:39.636 --> 0:16:41.916 of the cases that I go back to over and 0:16:41.956 --> 0:16:44.916 over again in my work about lethal injection and about 0:16:44.916 --> 0:16:48.116 other execution methods dates back to the nineteen forties, and 0:16:48.156 --> 0:16:51.396 it's a case involving a man named Willie Francis, who 0:16:51.476 --> 0:16:54.756 was a teenager, black teenager who had been condemned to 0:16:54.836 --> 0:16:57.876 die in Louisiana. They sent him to the electric chair 0:16:57.956 --> 0:17:01.436 in nineteen forty six, and he survived. He survived their 0:17:01.476 --> 0:17:05.396 initial attempts to execute him. It's a grotesque ordeal. There's 0:17:05.436 --> 0:17:08.796 been a lot written historically about this, but that case, 0:17:08.836 --> 0:17:12.636 they the execution. He appealed to the US Supreme Court 0:17:13.076 --> 0:17:16.476 and a majority of justices found that attempting to kill 0:17:16.516 --> 0:17:19.436 him again wouldn't violate the Eighth Amendment, and they sent 0:17:19.556 --> 0:17:23.036 him back in nineteen forty seven. They succeeded in killing him. 0:17:23.076 --> 0:17:25.276 But the language that comes out of the court in 0:17:25.356 --> 0:17:29.196 this case really goes a long way to helping us 0:17:29.276 --> 0:17:31.476 understand how we ended up where we are now. You know, 0:17:31.516 --> 0:17:35.756 they essentially said accidents happen, accidents happened for which no 0:17:36.076 --> 0:17:39.116 man is to blame. And there's another turn of phrase 0:17:39.116 --> 0:17:44.156 that's really galling in which essentially they call this ordeal 0:17:44.236 --> 0:17:48.476 that he suffered an innocent misadventure. And this language, this 0:17:48.556 --> 0:17:51.436 idea is that this was an innocent misadventure, finds its 0:17:51.436 --> 0:17:55.436 way into subsequent rulings decades later. So in two thousand 0:17:55.476 --> 0:17:58.196 and eight, I believe it was the US Supreme Court 0:17:58.236 --> 0:18:00.556 took up the three Drug Protocol, which at the time 0:18:00.796 --> 0:18:03.276 was being used by Kentucky. This was a case called 0:18:03.316 --> 0:18:07.076 Bays versus Rees, and there was a lot of evidence. 0:18:07.116 --> 0:18:09.436 There was a lot that the justices had to look 0:18:09.476 --> 0:18:11.996 at that should have given them pause about the fact 0:18:11.996 --> 0:18:14.556 that this protocol was not rooted in science, that there 0:18:14.556 --> 0:18:18.516 had been many botched executions in terms of the inability 0:18:18.516 --> 0:18:21.076 to find a vein, in terms of evidence that people 0:18:21.116 --> 0:18:24.556 were suffering on the gurney. The US Supreme Court upheld 0:18:24.636 --> 0:18:27.636 that protocol, and yet right around the time that they 0:18:27.636 --> 0:18:31.156 handed down that ruling, states began sort of tinkering with 0:18:31.316 --> 0:18:33.876 the lethal injection protocol that had been the prevailing method 0:18:33.916 --> 0:18:36.516 for so long. Without getting too deep in the weeds, 0:18:36.836 --> 0:18:40.516 the initial drug, the drug that was supposed tonestize people 0:18:40.556 --> 0:18:44.676 who were being killed by lethal injection, had been originally 0:18:44.676 --> 0:18:47.756 a drug called sodium thiopental, which was thought to be 0:18:47.756 --> 0:18:52.076 believed to be, for good reasons, something that could basically 0:18:52.076 --> 0:18:54.716 put a person under and where they wouldn't necessarily feel 0:18:54.756 --> 0:18:58.956 the noxious effects of the subsequent drugs. States were unable 0:18:58.956 --> 0:19:01.116 to get their hands on this drug for a number 0:19:01.116 --> 0:19:04.196 of reasons and subsequently began sort of swapping out other 0:19:04.276 --> 0:19:08.316 drugs to replace that drug, and different states tried different things. 0:19:09.156 --> 0:19:12.316 A number of states eventually settled on this drug called medaslum, 0:19:12.316 --> 0:19:14.436 which is a sedative which does not have the same 0:19:14.516 --> 0:19:18.236 properties as the previous drug and has been over and 0:19:18.236 --> 0:19:20.156 over again experts have said that this is not a 0:19:20.236 --> 0:19:23.356 drug that's going to be effective in providing and anesetizing 0:19:23.396 --> 0:19:25.956 people for the purpose of lethal injection, and the Supreme 0:19:25.996 --> 0:19:29.636 Court was once again ruled that this was true. In Oklahoma, 0:19:29.716 --> 0:19:32.956 this was the case Golossip versus gross which the Supreme 0:19:32.996 --> 0:19:35.716 Court heard after there had been a very high profile, 0:19:36.076 --> 0:19:39.436 really gruesome botched execution a man named Clayton Lockett, who 0:19:39.516 --> 0:19:42.436 was executed in twenty fourteen. This ended up going up 0:19:42.436 --> 0:19:45.196 to the Supreme Court, and I covered that oral argument, 0:19:45.276 --> 0:19:47.436 and what was really kind of astonishing about that oral 0:19:47.516 --> 0:19:50.676 argument wasn't just how grotesque it all was, but the 0:19:50.716 --> 0:19:54.276 fact that the justices were very clearly very annoyed, very 0:19:54.316 --> 0:19:57.116 cranky about the fact that, you know, only a few 0:19:57.196 --> 0:19:59.876 years after having upheld this three drug protocol, now they're 0:19:59.876 --> 0:20:02.556 having to deal with this thing again, and they again 0:20:02.636 --> 0:20:05.956 they upheld this protocol despite a lot of evidence that 0:20:06.036 --> 0:20:08.796 this was completely inhumane, that there was a lot of 0:20:08.796 --> 0:20:11.436 reasons to be concerned that people were suffering on the 0:20:11.436 --> 0:20:15.116 gurney while being put to death by lethal injection. And 0:20:15.156 --> 0:20:17.316 so the reason I go back to the Willy Francis 0:20:17.356 --> 0:20:19.036 case is that it really tells us everything that we 0:20:19.116 --> 0:20:22.316 need to know, which is that if you have decided 0:20:22.476 --> 0:20:24.996 that people condemned to die in this country are less 0:20:24.996 --> 0:20:27.956 than human and that their suffering doesn't matter, then there's 0:20:27.996 --> 0:20:31.796 no limits on what you are willing to tolerate and 0:20:31.876 --> 0:20:35.796 uphold in sort of upholding this death protocol that we've 0:20:35.796 --> 0:20:39.316 invented in this country. And so the Supreme Court has 0:20:39.356 --> 0:20:41.636 weighed not only on the three Drug Protocol but on 0:20:41.756 --> 0:20:44.636 execution methods in general, and they have always found that 0:20:44.676 --> 0:20:46.076 there's not really a problem here. 0:20:46.876 --> 0:20:49.796 Say, at a certain point, it becomes obvious that the 0:20:49.836 --> 0:20:54.276 cruelty is the point the Eighth Amendment does not actually 0:20:54.316 --> 0:20:57.236 have any kind of impact on their thinking, because they 0:20:57.236 --> 0:21:01.236 are anxious to preserve the very thing about capital punishment 0:21:01.556 --> 0:21:03.836 that is so morally noxious, which is. 0:21:03.796 --> 0:21:06.836 That it's cruel, Right, Malcolm. 0:21:06.956 --> 0:21:09.676 One interesting thing that you talk about in the series 0:21:09.756 --> 0:21:14.796 is this concept of judicial override in Alabama, where a 0:21:14.876 --> 0:21:18.156 judge was able to impose a death sentence even if 0:21:18.196 --> 0:21:20.876 the jury recommended life in prison. This went on until 0:21:20.956 --> 0:21:25.036 twenty seventeen. As we know, death penalty cases can take decades, 0:21:25.076 --> 0:21:27.756 so it's possible that there are still people on death 0:21:27.836 --> 0:21:31.116 row who have been impacted by judicial override. What's your 0:21:31.156 --> 0:21:36.156 sense about how judges who went that route justified their decisions, 0:21:36.236 --> 0:21:37.076 if at all. 0:21:37.276 --> 0:21:40.436 Yeah. So, Alabama was one of a number of a 0:21:40.516 --> 0:21:44.236 small number of states who, in response to the Supreme 0:21:44.276 --> 0:21:50.516 Court's hesitancy about capital punishment in the nineteen seventies, instituted 0:21:50.916 --> 0:21:56.516 rules which said that a judge can override a jury's 0:21:56.796 --> 0:22:00.676 sentencing determination in a capital case. So if a jury 0:22:00.716 --> 0:22:04.876 says we want life imprisonment without parole, the judge could 0:22:04.876 --> 0:22:08.476 impose the death penalty, or vice versa. The motivation for 0:22:08.516 --> 0:22:11.916 these series of override laws, and are only about three 0:22:11.956 --> 0:22:15.556 or four states at Florida, Alabama, a couple of others 0:22:15.916 --> 0:22:19.116 had them, is kind of murky, but I suspect what 0:22:19.156 --> 0:22:22.676 they wanted to do was to guard against the possibility 0:22:22.676 --> 0:22:27.556 that juries would become overwhelmingly lenient. The concern was that 0:22:27.556 --> 0:22:31.796 if the public sentiment was moving away from death penalty 0:22:32.116 --> 0:22:34.796 to the extent that it would be difficult to impose 0:22:34.836 --> 0:22:39.436 the death penalty in capital cases unless you allowed judges 0:22:40.156 --> 0:22:45.356 to independently assert their opinion when it came to sentencing. 0:22:45.716 --> 0:22:48.276 And I also suspect that there's to be in saints 0:22:48.276 --> 0:22:50.356 like Alabama, there was a little bit of a racial 0:22:50.396 --> 0:22:54.076 motivation that they thought that black jeries would be unlikely 0:22:54.556 --> 0:22:56.596