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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 an 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 at the Bloomberg Law Podcast, on Apple podcast, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. The U. S.

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Speaker 1: Supreme Court has refused to clear the federal government to

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Speaker 1: resume executions after a sixteen year hiatus. The Justice is

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Speaker 1: rejected a bid by the Trump administration to lift a

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Speaker 1: trial judge's order that blocked the executions of four inmates.

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Speaker 1: The judge ruling that the new execution procedures approved by

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Speaker 1: Attorney General William Barr violate the Federal Death Penalty Act.

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Speaker 1: Joining me is Jeffrey Fagan, a professor at Columbia Law School.

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Speaker 1: This Supreme Court ruling seems to just delay the inevitable

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Speaker 1: appeal to come. So can it be called a victory

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Speaker 1: for those who are opposed to the death penalty? Well,

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Speaker 1: I think it's a victory in general for everybody opposed

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Speaker 1: or not opposed, because the Court's basically saying that there

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Speaker 1: are established judicial processes that they want the governments to

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Speaker 1: adhere to, and just simply because the government says, well,

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Speaker 1: we've solved the execution protocol problem. We can proceed. That's

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Speaker 1: not the case. There are procedures for review of that

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Speaker 1: claim and so on. So I think that this is

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Speaker 1: following the rule of law, and I think that's a

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Speaker 1: victory for everybody. The U. S. Solicitor General Noel Francisco

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Speaker 1: told the Supreme Court that the inmates were suing over

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Speaker 1: a quote, purely procedural violation. Do you agree with that?

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Speaker 1: Is this purely procedural? Not at all? At least one

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Speaker 1: of the inmates is suing over. I'm not sure if

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Speaker 1: it's in the main case, but it certainly is. One

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Speaker 1: of the five ex scheduled executions. He's swing over the

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Speaker 1: validity of the death sentence itself that he's facing. There

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Speaker 1: are questions in that particular case about whether prosecutors withheld

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Speaker 1: full information, particularly about his involvement in the crime, the

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Speaker 1: defendantive involvement in the crime itself, So there's a question

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Speaker 1: there of whether or not the person is culpable at

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Speaker 1: a level that's sufficient to justify execution. Another case where

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Speaker 1: they're alleging m maracial bias this Native American defendant, and

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Speaker 1: there are other cases where somebody u one of the

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Speaker 1: defendants is suffering from dementia. I don't think that we

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Speaker 1: as a society want to be executing somebody who doesn't

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Speaker 1: really understand why they're being executed, and that actually is

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Speaker 1: bed rock law. One can't execute somebody under the Eighth

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Speaker 1: Amendment if they don't have an understanding fully of why

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Speaker 1: they're being executed. So there are there are very complicated

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Speaker 1: legal questions at play here that go that. Certainly the

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Speaker 1: one that stands out as the legal injection protocol, but

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Speaker 1: there are other issues that are not certainly not technicalities

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Speaker 1: that Mr Francisco is a So what is the issue

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Speaker 1: over the lethal injection protocols? There was an agreement about

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Speaker 1: a protocol under a case called Roan that has been

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Speaker 1: an effect for many years, and there was no really

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Speaker 1: Russia until very recently until I guess August of September

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Speaker 1: when bar announced depending executions to resolve that impasse. The

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Speaker 1: protocol that the fenders have approved is they want to

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Speaker 1: use a single single drug execution protocol. This would replace

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Speaker 1: the three drug protocol. But the single drug execution protocol

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Speaker 1: hasn't been fully reviewed by the Fence. In the Federal courts,

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Speaker 1: So that's the issue number one. Issue number two the

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Speaker 1: protocols that go beyond just simply which drug is used,

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Speaker 1: and they go to to the question of administration and

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Speaker 1: how the drug is administered. Will medical personnel be involved?

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Speaker 1: What are the safeguards in case something goes wrong and

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Speaker 1: there's some signs of severe pain and suffering on the

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Speaker 1: part of the defendant. What happens if they can't um

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Speaker 1: locate a vein or some way to administer the drug.

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Speaker 1: So the protocol goes well beyond just simply the psychotropic

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Speaker 1: or or medical effects of the drug itself. Those things

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Speaker 1: have not yet been worked out. The way that the

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Speaker 1: Death Penalty Act works is that for a federal execution,

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Speaker 1: the execution takes place in the state where the person

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Speaker 1: committed the crime and where the court is located sentence

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Speaker 1: the person to death. In the Iowa case, that that

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Speaker 1: state does not have a death protocol and execution protocol,

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Speaker 1: so they have to fall to Indiana, where the execution

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Speaker 1: protocol is being contested. In another place. The execution protocol

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Speaker 1: that's in place is a three drug cocktail that they

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Speaker 1: want to replace with this new procedure, so that has

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Speaker 1: to be evaluated very carefully as well. In any execution,

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Speaker 1: there's quite a danger of a botched execution where there

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Speaker 1: is extraordinary pain and suffering. This has been shown to

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Speaker 1: be about one out of every six or seven executions

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Speaker 1: that have taken place since the resumption of executions in

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Speaker 1: the nineteen seventies. So this is not a victory for

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Speaker 1: those who seek to delay. This is a victory for

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Speaker 1: established judicial process of review of statute of federal statute

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Speaker 1: um and to some degree of state statute. This is

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Speaker 1: just another case where the Trump administration is asking the

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Speaker 1: Supreme Court to jump into the case before the Circuit

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Speaker 1: Court has made a decision, So refusing to wait for

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Speaker 1: the normal legal process to take effect. Have the justices

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Speaker 1: reached a point where they don't believe that it's a

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Speaker 1: real emergency anymore. I think that varies by justice. I

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Speaker 1: think some of the justices probably see that the administrations

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Speaker 1: is crying wolf over the need to rush to a finality.

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Speaker 1: I suspect some of the justices would be perf be

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Speaker 1: comfortable with this, and might even agree with the administration's

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Speaker 1: position that this is nothing to get too worried about.

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Speaker 1: It can be resolved quickly, that seemed to be Aldo's

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Speaker 1: position when he said he thinks we can resolve this

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Speaker 1: in sixty days. I don't think that's the case. I

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Speaker 1: think the courts have their own processes and this will

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Speaker 1: take as much as six months, perhaps more. It's hard

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Speaker 1: to read Justice Roberts. Chief Justice Roberts, he did not

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Speaker 1: weigh in one way or the other. He just simply

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Speaker 1: went along with the majority that agreed to delay the

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Speaker 1: execution order. So it's hard to say whether or not

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Speaker 1: they think that. Once again, the administration is thinking and

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Speaker 1: then run is the wrong term. I think they just

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Speaker 1: simply to speed up the process in order to achieve

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Speaker 1: a particular policy goal. We could go down the justices

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Speaker 1: one by one of the three who said they thought

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Speaker 1: this would eventually wind up the favoring the government course

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Speaker 1: at Kavanaugh and Alito. They've evaluated the evidence of that

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Speaker 1: fully here in the evidence, and I think that's something

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Speaker 1: of a problem for judicial process. Again, as I said,

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Speaker 1: we don't know where Justice Roberts stands just this. Thomas

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Speaker 1: probably would would be approving of the government's position. He's

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Speaker 1: very pro execution, and unless there's an intent to cause

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Speaker 1: the torturous pain, he finds no problem with any accution protocol.

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Speaker 1: So we really don't know how this is going to

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Speaker 1: end up time wise. It could be that some of

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Speaker 1: the substantive claims do rise to the surface and eclipse

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Speaker 1: they claim about the legal injection protocol itself. It could

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Speaker 1: be that these claims of innocence on one person's behalf,

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Speaker 1: the claim of dementia and the eighth a biment problem

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Speaker 1: on the other second persons that we have, and the

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Speaker 1: claim of racial biased all of these may actually get

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Speaker 1: some traction with the court. You've left out the liberal justices.

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Speaker 1: Do they vote as a block in death penalty cases

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Speaker 1: or not? No, not always. There are many death penalty

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Speaker 1: cases which appeal for Supreme Court hearing in which are

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Speaker 1: denied the hearing. So they certainly are going along with

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Speaker 1: the decision to execute somebody when they agree to the

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Speaker 1: the denial of the petition for hearing the case. So no,

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Speaker 1: they're not voting as a block. Perhaps at appellate cases

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Speaker 1: they seem to, and in particular and legal injection cases

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Speaker 1: they do seem to vote as a block. And that

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Speaker 1: goes back as far as the two thousand and eight

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Speaker 1: case and Bays v. Res and the two thousand and

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Speaker 1: twelfth case in Glossop and then the two thousand and

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Speaker 1: a team case in Buckaloo. On all three of these

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Speaker 1: cases they did vote as a block, and I think

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Speaker 1: they have problems with a number of issues about lethal injection,

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Speaker 1: one of which is just simply the lack of attention

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Speaker 1: to the details of the protocols themselves. As I mentioned before,

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Speaker 1: it's beyond just the drug. But I think they also

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Speaker 1: think that there's an element, particularly here, of human experimentation

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Speaker 1: when you're using an untested protocol. It's been tested in

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Speaker 1: some of the states, but here the protocol, the administration,

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Speaker 1: and the drug together had not been tested, and that

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Speaker 1: caused it to human insperimentation, which I think is a

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Speaker 1: society we still don't like. Thanks Professor. That's Professor Jeffrey

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Speaker 1: Fagan of Columbia Law School. Thanks for listening to the

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Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the

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Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

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Speaker 1: slash podcast. I'm June Basso. This is Bloomberg