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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. The death penalty,

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Speaker 1: which had appeared headed for extinction in the US, is

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Speaker 1: poised for a resurgence. Attorney General William Barr announced the

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Speaker 1: federal government will resume executions in December after a sixteen

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Speaker 1: year moratorium, joining me as Madeleine co and a capital

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Speaker 1: defense attorney who represents several prisoners on federal death Row

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Speaker 1: Madeline In. The death penalty was under so much pressure

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Speaker 1: that the late Justice Antonin Scalia said he wouldn't be

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Speaker 1: surprised if his colleagues outlawed it. What has changed, dude,

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Speaker 1: Nothing has changed in terms of the country moving away

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Speaker 1: from death penalty. That continues to be the case, and

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Speaker 1: a number of states that we might consider to be

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Speaker 1: more conservative leaning states have continued to push and in

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Speaker 1: many cases passed bills to abolish the death penalty by

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Speaker 1: resuming executions. The Trump administration seems to be going in

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Speaker 1: the opposite direction from the rest of the country. The

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Speaker 1: Supreme Court has ruled that the death penalty is constitutional.

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Speaker 1: So is there any legal reason, any legal challenge that

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Speaker 1: could stomp the federal government from going forward with these executions.

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Speaker 1: I'm sure that right now the lawyers who represent each

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Speaker 1: of those five individuals is marceling the best legal arguments

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Speaker 1: that they can come up with. Those will be both

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Speaker 1: specific and systemic arguments, and there are many. Um It's

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Speaker 1: important to remember that the Supreme Court has not outlawed

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Speaker 1: the death penalty, but has discussed the death penalty in

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Speaker 1: terms of evolving standards of decency. And what we've seen

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Speaker 1: over the last several years is that our standards are

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Speaker 1: evolving away from the death penalty. So there was a

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Speaker 1: moratorium on federal electric executions, fueled somewhat by worries about

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Speaker 1: racial disparity in the way it was being carried out.

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Speaker 1: Have those concerns dissipated, not at all. The federal death

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Speaker 1: penalty is meted out in a very racially disparate way.

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Speaker 1: The federal death row is the majority minority, and almost

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Speaker 1: half of the people on federal death row are black men.

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Speaker 1: But certainly a majority of those on death row? Are

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Speaker 1: people of color? Bar is proposing to execute these five

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Speaker 1: men that he's picked out himself, and it seems a

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Speaker 1: bit rushed. It's going to start in December. Are there

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Speaker 1: any concerns about this seeming rush. Absolutely. The government rolled

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Speaker 1: out its execution protocol all the same day and announced

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Speaker 1: to these execution dates. That protocol is entirely new and

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Speaker 1: has not been subjected to any judicial review. It also

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Speaker 1: has not gone through public rulemaking. And it's worth noting

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Speaker 1: that there has been litigation pending in the District of

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Speaker 1: Columbia District Court for many, many years raising challenges to

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Speaker 1: federal government execution procedures. These five individuals were not set

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Speaker 1: for execution because they have the oldest federal des sentences

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Speaker 1: and have been on death road the longest. They happen

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Speaker 1: to not be parties to that litigation and don't have

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Speaker 1: stays of execution. So by singling these prisoners out for execution,

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Speaker 1: the government seems to be making an end run around

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Speaker 1: the litigation and that litigation's request for careful administrative and

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Speaker 1: judicial review of its processes. If that question got to

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Speaker 1: the Supreme Court. We have a court where Justice Gorset

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Speaker 1: in a recent decision said the Eighth Amendment doesn't guarantee

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Speaker 1: a prisoner a painless death, something that of course isn't

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Speaker 1: guaranteed to many people, including most victims of capital crimes.

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Speaker 1: So would that kind of a proceeding get far when

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Speaker 1: it faces a Supreme Court ruling, Well, that's hard to say.

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Speaker 1: The Supreme Court's decisions in these Glossip and Bucklew that

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Speaker 1: addressed legal injection questions do not address the questions that

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Speaker 1: this specific protocol might raise. But before we ever get

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Speaker 1: to the Supreme Court, the public should have a right

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Speaker 1: to know what the United States government is doing when

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Speaker 1: it tries to carry out the first executions in sixteen years.

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Speaker 1: And the administration has announced that it does not intend

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Speaker 1: to go through any public rulemaking. So we have many,

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Speaker 1: many unanswered questions about how the protocol will work and

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Speaker 1: regular where it intends to get the drugs that it

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Speaker 1: will use for this process. So, as you mentioned, twenty

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Speaker 1: one states have abolished the death penalty. Four states have

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Speaker 1: a moratorium imposed by the governor, and one of those

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Speaker 1: is California, and recently, Gavin Usom, the governor, said that

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Speaker 1: it was costing five billion dollars to the taxpayers since

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Speaker 1: California reinstated the death penalty, even though they now have

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Speaker 1: a moratorium on it. Is there any information about how

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Speaker 1: much it costs the federal government. I don't know that

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Speaker 1: those costs are available. There was a study done in

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Speaker 1: two thousand and ten that looked at some costs associated

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Speaker 1: with the federal the federal death penalty. Certainly it is

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Speaker 1: very expensive, and one of them not uncommon but very

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Speaker 1: troubling things that we've seen is that the most likely,

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Speaker 1: uh the reason you are most likely to get a

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Speaker 1: death sentence is not because you committed the worst crime,

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Speaker 1: but because you have the worst or often the most

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Speaker 1: poorly funded lawyers. And so we see concentration of federal

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Speaker 1: death sentences in jurisdictions that are less willing to provide

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Speaker 1: adequate funding to capital defense lawyers. It has the process

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Speaker 1: for appellate review of capital punishment in the federal system

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Speaker 1: been curtailed. That's a bit of a complicated question, and

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Speaker 1: I'll try to give you an uncomplicated answers. Um. So,

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Speaker 1: because it is a very very important issue and it's

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Speaker 1: one of the great sailings of the federal death penalty system,

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Speaker 1: it is probably a shock to most people that the

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Speaker 1: federal death row prisoners get less judicial review than state

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Speaker 1: death row prisoners get UM, including the fact that the

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Speaker 1: United States Supreme Court has not given any substantive consideration

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Speaker 1: to any federal death penalty case since the federal death

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Speaker 1: penalty came back in They have reviewed one um statutory

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Speaker 1: procedural question in the case of a man who has

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Speaker 1: executed in two thousands three, But other than that, the

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Speaker 1: Supreme Court has left the federal death penalty alone. That

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Speaker 1: means that at least on direct review or you have

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Speaker 1: a right to appeal, the federal courts of appeal are

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Speaker 1: the beginning and the end of review on post conviction.

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Speaker 1: Federal death row prisoners should, if you read the statute,

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Speaker 1: they should have a right to an evidentiary hearing on

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Speaker 1: their serious claims of ineffective council, prosecutorial and misconduct during

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Speaker 1: misconduct um, all the things that we know from the

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Speaker 1: many cases that we've seen go wrong in death penalty cases.

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Speaker 1: In fact, very few federal death row prisoners, including several

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Speaker 1: of the guys who are scheduled for execution. Most of

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Speaker 1: the guys do you not get of an entry hearing.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg