Radiolab - More Perfect: Cruel and Unusual

Episode Date: August 9, 2019

On the inaugural episode of More Perfect, we explore three little words embedded in the 8th Amendment of the U.S. Constitution: “cruel and unusual.” America has long wrestled with this concept in the context of our strongest punishment, the death penalty. A majority of “we the people” (61 percent, to be exact) are in favor of having it, but inside the Supreme Court, opinions have evolved over time in surprising ways. And outside of the court, the debate drove one woman in the UK to take on the U.S. death penalty system from Europe. It also caused states to resuscitate old methods used for executing prisoners on death row. And perhaps more than anything, it forced a conversation on what constitutes cruel and unusual punishment. Special thanks to Claire Phillips, Nina Perry, Stephanie Jenkins, Ralph Dellapiana, Byrd Pinkerton, Elisabeth Semel, Christina Spaulding, and The Marshall Project Support Radiolab today at Radiolab.org/donate.  Also! We’re working on collecting some audience feedback so we can do a better job of getting our show out to all of you, interacting with you, and reaching new people. We’d love to hear from you. Go to www.radiolab.org/survey to participate.

Wait, you're listening. Okay. All right. You're listening to Radio Lab. Radio Lab. From W. N. Y. C. See?

Yeah. Can we watch Telitubbies for a second? Although that's all so horrible. That's true. Five. Hey, this is Radio Lab. I'm Chad. I'm Ron. And today we're going to share with you a story that we did a few years ago on our sister show,

More Perfect. Here's why. A couple weeks ago, as you may remember, Attorney General William Barr announced that the U.S. government was going to begin executing federal prisoners again. Last execution was in 2003 in Indiana. And the Attorney General said the U.S. is going to start doing it again after a, quote, two-decade-long lapse. It just so happens over at More Perfect.

We, I believe this was the first episode ever of More Perfect. We did a deep dive into how we execute people and given the Eighth Amendment, whether or not we should. And it felt like a good time to bring that story back. So here it is. Comes to us from reporter Karen Duffin and it starts with a mystery. Right. All right. So we're starting with Maya, right?

With Maya, yeah. Maya Foa. I am the director of the death penalty team at Reprieve. Okay, so Maya Foa lives in London, and when she was about 25, she had graduated from college. She was doing some theater things, but she was, like, having this quarter-life crisis and didn't know what to do with her life. Post-colle. Sort of. An existential crisis, and I wrote to a couple of organizations and said, you know, please, can I be useful to you?

She ends up volunteering at this place called reprieve. A legal organization that did death penalty cases. Are they, like, a bunch of lawyers, or what do they do? Yeah, like, they do legal work and advocacy. They've been working on the death penalty for like years at that point to try to abolish it. I view the death penalty and I viewed it at the time as sort of the sharp end of a series of societal injustices. So anyway, she's at Reprieve one night. This was 2010.

I was sitting there one night and Clive Stafford Smith, who's the president of Reprieve or the head of Reprieve, calls and says, look, we've got an execution tonight. There's an execution in Arizona tonight. Jeffrey Landrigan is set to be. put to death for killing Chester Dreyer. Landrigan was found guilty of strangling and stabbing the man in 1989. So Clive says, there's an execution tonight, and we just found out that the lethal injection drugs that they're going to use.

They came from a pharmacy in England. But we don't know which pharmacy because Arizona refuses to release the name. Does anyone in the office have some time, a volunteer, have some time to figure out where those drugs could have come from? And she raises her hand and she's like, I have 30 minutes, you know. And I said, yeah, sure, I've got, you know, I've got. half an hour. I didn't know what I was starting when I started it. So wait, why are they want to find this supplier? Like, why does that help them? Well, the drugs that they want to use in Arizona have to be FDA approved. So if they can find who made these drugs and prove that they

are not FDA approved, then they can probably stop the execution. Did they have any reason to think the drugs weren't FDA approved? It was kind of a Hail Mary. So I started the half hour research task that has taken me now five and a half years. And I was trying to figure out with limited information where sodium thioepantle could have come from in the UK to get to the US. Sodium thiopental is an anesthetic and for a long time it was one of the most common anesthetics used in surgeries, but it's also one of the drugs used in lethal injection. I was sort of, I didn't, I don't think I knew the purpose of all the research that I was doing, but I was doing it very quickly because of course they had an execution that night.

Landrigan is running out of time and options. And it was, I was in the UK, so it was the evening. Which is morning Arizona time. We had just a number of hours. She's, like, frantically searching for all these, like, global medical regulations. And, you know, she can't figure out exactly what the name of the company is. Because there was no way to know at that point. But ultimately, she does figure out that there are no UK companies authorized to ship this drug to the U.S.

There was no, effectively no FDA-approved supplier of the stuff. So whatever this mystery pharmacy was, it probably, wasn't FDA approved. And I remember, you know, I emailed that over. I think we either turned it into an affidavit from me or from Clive. They write up a quick affidavit, they send it back to the States. And the execution that night was stayed, like halted. When I went to sleep, it had been stayed and I just thought, okay, great, you know, we got a bit of time.

In the next morning, I woke up, I was couch surfing, I was in someone's, and I turned on World Service. And they announced that... Jeffrey Landrigan was executed at 22, 26 hours. Um, yeah. His final meal was a piece of steak. His last words were, well, I'd like to say thank you to my family and boomer sooner. It turned out while Maya was asleep. The state appealed all the way to the Supreme Court and late yesterday.

The justices by a five to four vote lift. the stay of execution, allowing Landrigan to be put to death last night. That's because the stay was put in place due to concern over lethal injection drugs. One of those drugs obtained from Britain was not FDA approved, but the U.S. Supreme Court did rule that there was no reason to believe that the drug wasn't safe. You know, I talk about a rude awakening in the literal sense. Now, that rude awakening would send Maya on a journey around the world. It would get her called out by the United States Supreme Court.

And it would spark a global conversation about the American death penalty and about those little words cruel and unusual that are embedded in our Eighth Amendment. The honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Just before the honorable, the Supreme Court of the United States were admonished to draw a near and give that. All right, back to Karen. So we were in London with Maya, who just learned that Jeffrey Landrigan had been executed. But to understand what she does next, let me just. give you a little bit of context. In the fall of 2010, when Jeffrey Landrigan was executed, the drug that they'd used...

The lethal drug, sodium theopental... ...was suddenly in really short supply. There was a nationwide shortage... Because the only U.S. company that still made that drug was having, like, a manufacturing problem. So they had stopped manufacturing or producing this drug. So you actually see these emails between states like, dude, do you have any sodium thio pentol? California got help from right next door.

Arizona agreed to lend California a cup of death. And there's actually this one great email exchange between the California Department of Corrections. They send Arizona this thank you email. And I quote, you guys in Arizona are lifesavers. We'll buy you a beer next time I see you. You're a lifesaver.

Come on. Yeah. So when Jeffrey Landrigan is set to be executed, Arizona is out of that drug. And this is how they end up. at this mystery drug company in London. So after the execution, Maya is doing all this research. She's calling pharma companies.

She's trying through these documents. And very quickly, she learns that the same company that is sending drugs to Arizona had sent drugs to, like, lots of different states. Georgia and South Carolina, Kentucky. California and various other places. They'd actually become one of the primary suppliers of lethal injection drugs to the United States. Wait, tell me again, why was it so hard to find out information about this company? So what happens is that anybody in the United States.

that anybody involved with an execution, your name is kept confidential. And states have started keeping companies' names confidential too. I see. So next she starts calling suppliers and distributors kind of trying to trace, like, how did this drug get to that company, thinking that maybe that'll lead her to it. We had figured out it had come originally from, there was some active ingredients made in Austria. Some of those were sent over to Germany. There were a package put into vials.

those were sent over to the UK. There was one company that has the marketing authorization for the product. They were sold to another one. That company changed. And then they were sent to this company in England, which she still can't figure out the identity of. But then the real breakthrough came just a couple months after Jeffrey Landrigan was executed. I think there was lots of material coming out at that time.

I remember California and the ACLU got a batch of documents. And in one of these batches of documents, she finds an invoice. And this invoice has a name on it. I just remember getting the court documents, and I was working with this very slow internet connection. She was actually in Malawi at the time. Just sort of, you know, fervently, you know, willing the computer to download the document so I could start, you know, looking through them and figuring out this stuff.

And those were the documents that had the name of the middleman. What was it? Dream farmer. Dream farmer. Dream farmer. Dream farmer. Dream farmer. Yeah.

Huh. Yeah. Okay. Yeah. So she's in Malawi, so she, you know, rings up her colleague and says, can you go just look at this place? It's in West London. This is North Acton. And it's this residential area, but also, like, with sort of warehouses, kind of middle class.

You have a couple of petrol stations, a couple of cafes, and then this pharmacy, except that it doesn't look like a pharmacy because it's got a big sign on the front that says, Elgon Driving Academy. I'm going to go and try and go and knock on the door of the Elgon Driving Academy. This is Nina Parrish. She's a freelance producer in London. It doesn't look too good. There's a tiny little storefront.

I can't see any evidence of driving. And if you walk in... Hello. Hello. You walk in and in the front it's just this reception. area, but in the back. Hi. I'm looking for Dream Farmer.

Is that you? Oh, hi. I'm recording for... There's a guy sitting at a desk. His name is Medialavi. He's in his 50s gray feathered hair, kind of like square glasses, looks a little bit like William Hertz. He is Dream Pharma. In other words, the company

that is helping prop up the death penalty system in America. It's a one-man operation operating out of the back of a driving square. school. One guy? One guy. And I thought, well, this can't be true. But they're interested in speaking to you about the injections that you supplied to the States. From the get-go, I just had no comments and I still have no comments. Oh, so what was it like when Reprieve came to find you? Ask them yourself. What was it like for you?

ask them for yourself. Okay. Are you still supplying the states with? No. No. No. It's illegal. Oh right. Did you, were you aware of that? It wasn't illegal at that point. Oh right so then it became illegal? That is correct. Oh. Would you mind me asking how you came to get involved in that in the first place, how they came to find you or you to find them? They found me. They found you? Wow. Were you surprised when they got in contact with you? surprised, I don't know at that point. No, but I guess it unraveled somewhat. I got no further comments, my dear.

Okay, well thank you very much for... Pleasure. For doing that. And thank you for bringing me to Acton because I very much enjoyed walking around Acton and meeting the people around here. Okay. Yeah, so what do you sell now?

It's irrelevant to your case. Well, I'm just quite interested, as a citizen of London. to you. You're not in the business. That's irrelevant to you. Okay? Okay. Well, thank you very much for your time. Pleasure. And what was your name again, please? You know my name? If not, find out. Okay. Thank you very much. Pleasure. Bye-bye. Do you actually do driving lessons? It's irrelevant to you. You don't do driving lessons. So once Maya and Reprie found that guy Medea Lobby in his pharmaceutical room closet of death, the next step was pretty simple. went to the UK government and they told them

because in the UK it's illegal to be part of capital punishment in any way. We have a law that prohibits exports of products for the facilitation of capital punishment or torture. It's called the Torture Regulation. The anti-torture regulation. With this text, unique in the world,

the EU is profoundly committed to the fight against torture and the death penalty. And when they realized that the sole purpose of the exports of this drug was for executions. They put an export control in place. And just like that, the supply of this drug is turned off. So the states were just out of luck?

Well, I mean, 60% of Americans support the death penalty, so they're not going to give this up without a fight. And so over the next few years you have like this arms race. Missouri says, we're going to find the drug in Germany. So Maya goes to Germany. And then she hears that a company called Hospira is about to make the drug in Italy. And so I spent a bit of time there.

The Italian government really didn't want drugs made in the seat of the Pope to be used for execution. A Hospira spokesperson said, We cannot take the risk that we will be held liable by the Italian authorities if the product is diverted for use in capital punishment. And then Denmark. A bunch of states of Florida, Ohio, Alabama, 11 other states, They all decide they're going to get their drug from this company called Lundbeck. Maya calls them up.

I remember my first call with it. She was like, did you know that your drugs being used in executions? And they were like, what? It certainly came as a huge surprise for us. This is Anders Schroll. He's vice president for communications at Lundbeck. We have been in the pharma industry for a little more than 100 years. And we are here to save people's lives.

This was the complete opposite of the intention for this product. And Maya says that she heard the same thing all over the world. Even when states like Nebraska and South Dakota go to India to get their drug. And it's interesting in India because India has capital punishment. So this isn't an objection to capital punishment. This is, from every company I've spoken to in India, they say, but why? Why would they use medicines?

Like if you're going to kill someone, just kill them. Why are you using something that saves lives to do? it. And actually, there's a really interesting story about why we do it that way. So what is the answer to that question? Why do we? Well, the answer to that goes back to this guy named Bill Wiseman. It's a terrible thing to have one's reputation be based on coming up with a new way to kill people. Bill Weissman was a rising star back then. He loved politics. Weisman died in a plane crash in 2007.

This is him in an interview with a reporter named Scott Thompson on KOTV in Tulsa back in 2005. So what's spill story? So he grew up, his dad's a minister, his grandpa's a minister, and he's like, I don't want the family business. And he wanders for years. He, by his account, wanders through like two and a half literature degrees. He becomes a poet. He drinks a lot of corn liquor. And, you know, he finally ends up in construction where he starts working with politicians.

And he's like, oh, this is my calling. I want to be a politician. So he gets elected to the Oklahoma State Legislature in 1974. And he's opposed to the death penalty. And luckily for him, this had just happened. The Supreme Court declared the death penalty unconstitutional today and spared the lives of 600 men in death row cells across the country. In 1972, the Supreme Court actually abolished the death penalty

because they said it was being applied unfairly or haphazardly. In a way that could only be called freakish. So Bill Wiseman is in the Oklahoma legislature, and he's like, great. This is not a problem I'll ever have to worry about. The problem is the public is furious about this decision. Support goes from 50 to 63% in just two years. Do you think the death penalty should be reinstituted? Yes, I think so.

Absolutely. I very much in favor. Highly in favor of it. We get some law and order into this country. There's people writing furious abets. I don't think it should have taken it away in the first place. And almost immediately 35 states rewrite their death penalty laws, essentially saying, like, no, no, no, no, we can do this right. And in 1976, the Supreme Court says, all right,

if you can administer the death penalty fairly and humanely, you can have it back. So 1972, the death penalty is abolished. 1976, it's reinstated. Bill Wiseman gets elected smack dab in the middle of this. So, you know, in 1976, suddenly there's a bill in the Oklahoma State Legislature about whether to reinstate the death penalty. and Bill has to vote on that. I knew that capital punishment.

It just, it doesn't work, doesn't make sense. I couldn't see any way to justify it. I also knew that if I'd voted against it from my district, I would run a high chance of getting whooped. Because 80% of his constituents were in favor of the death penalty. And after all that wandering, he finally found this job that he loved. I was just having the best time, and I didn't want to get whooped. So I was in a real dilemma.

What'd you do? The wrong thing. He voted to reinstate the death penalty. For whatever reasons of ego or vanity or need or the motivation to get reelected, whatever the reasons, I knowingly made a decision when I knew it was wrong. And that's tough. So he's in the legislature and he's feeling like he just sold it. his soul. And as they're debating various amendments to this law, someone brings up something

sort of vaguely about a more humane way to execute people. And he's like, that, yes, that. And he becomes obsessed with this idea. Oh, it's like a way to assuages guilt. Yeah. So he rings up some anesthesiologists and doctors and says, I want to find a better way to do this. And they say, we can't help you because the, you know, Hippocratic oath, do no harm. Death is a little bit of harms. So he goes to the state medical examiner, a guy named Jay Chapman. And Jay just sort of like freestyles, this one line that Bill literally just sits with a yellow legal pad and writes word for word. It said an intravenous saline drip should be established into which would be introduced an ultra-short acting barbiturate in combination with a chemical paralytic.

The idea is that these three drugs would allow them to execute people but painlessly. And right there in that office with just like this yellow legal pad, they invent lethal injection in America. It would be hard to overstate just how important this moment in this office is because, you know, the Supreme Court had just given the country back the death penalty on the grounds and the ideal that we could do this right. And what Bill has just handed America is a way to have the death penalty, but have it be humane. The ideal death penalty. Yeah. So Oklahoma adopts it, and then the very next day, Texas does, and then dozens of states.

And since that moment, 88% of all executions have been done by lethal injection. I don't hear the word lethal injection or execution or anything else without feeling a tug, because it's tied to me. I mean, I'll always be tied to it. Which he lives to regret. He thinks that he actually extended the life of the death penalty. And he actually eventually quits his job, becomes a pastor, and becomes a very strong anti-death penalty advocate.

How does the man who came up with the recipe for lethal injection, what does he do on Judgment Day? The same thing everyone else does, throw ourselves on the mercy of God, say that we have done wrong and we're sorry. And the thing that I find really interesting is that if you look at the modern lethal injection cocktail, it's three drugs. first drug's supposed to anesthetize you, the second drug paralyzes you, and the third drug is

the acid that stops the heart and kills you. And in this drug cocktail, you kind of see everything that we want and need from the death penalty, just kind of all mixed together. The third drug, the drug that stops your heart, that's kind of our sense of justice. The first drug, the anesthetic, that's kind of our sense of humanity or kindness. That second drug, the one that paralyzes their muscles. The second drug is purely cosmetic. It serves no medical purpose. The reason it was put into the lethal injection cocktail in the first place was so that if the first drug doesn't work effectively, the second drug will mask any signs of visible suffering and it would be extremely significant because the potassium chloride is this potent acid that people have described as

being like fire going through your veins and being sort of burnt alive from the inside. She says, just imagine that that's happening to you, but something goes wrong with the anesthetic and you become conscious. You have this burning acid going through your body, and you are paralyzed, all your voluntary muscles are paralyzed, so you can't say, I'm awake, I can feel everything this is agony. She says that it's that second drug that is both the thing that could make the execution most torturous, and the thing that meant that we, the witnesses, the viewers, the public, wouldn't know that it was torture because we weren't supposed to know that.

So does she end up going after that second drug, the paralytic? No, actually, she goes after the first drug, the anesthetic. And it's a total coincidence. This is just the one that had manufacturing problems that started the arms race. But it turns out that this drug, the anesthetic, is the one that's the most constitutionally important drug. Because in 2008, when the Supreme Court ruled on lethal injection, they said... The parties agree that successful delivery of the first drug is necessary to prevent the prisoner from experiencing severe pain. So if there's no anesthetic, there's pain, which would be too severe and then be there for, what, an Eighth Amendment violation, cruel an unusual punishment?

Exactly. So that drug, the anesthetic, is the key drug. But over the past five and a half years, as Maya has, like, whack-a-mold her way across the... these different companies, she's just made it harder and harder to get. There are now 20 plus companies who have, they've said, we disapprove of the misuse of medicines and executions, and we're going to take steps to prevent it. And that has states scrambling.

The drugs used in the 32 death penalty states are now running out. They have run out of drugs. And as a result, what you've seen is that things have gotten very DIY. They're changing and trying new procedures never used before in the history of executions. Officials are in a difficult position. You even have the DA start raiding prisons. Complicating the drugs during the import process. Because they're essentially using illegal drugs at this point.

And so reporters are just starting to pay more attention. And in the middle of all that. He began kicking his feet, lifting his head in his chest off the gurney, grimacing. You also get scenes like this. Clenching his teeth and a couple of moments he actually mumbled. He would open his mouth and you'd see his chest move. go all the way down to his stomach. So it was a clear gas.

April 29, 2014, in Oklahoma, a man named Clayton Lockett was being executed for murder, rape, and kidnapping. Lockett's execution used a new drug combination whose source is unknown. He was sedated and declared unconscious, but... He started thrashing, clenching his teeth and... He started moving the arm, his little legs. It took him 43 minutes to die. Grizzly, horrific spectacle.

And this kept happening. After an hour and 57 minutes, this... State pronounced him dead. You had situations like this in Arizona, Ohio. This drug formula is unconstitutional. People started filing a bunch of lawsuits, and one of these eventually got to the Supreme Court. Case 1479.55.

And interestingly, when it got to the Supreme Court... Yeah, I mean, let's be honest about what's going on here. Things got very tense. This is Justice Alito saying essentially, come on, guys, this isn't actually a problem. You made it a problem. Executions could be carried out painlessly. There are many jurisdictions.

There are jurisdictions in this country. There are jurisdictions abroad that allow assisted suicide. The states have gone through two different drugs, and those drugs have been rendered unavailable by the abolitionist movement. And this is Justice Scalia. Putting pressure on the companies that manufacture them so that the states cannot obtain those two other drugs. And now you want to come before the court and say,

well, this third drug is not 100% sure. The reason it isn't 100% sure is because the abolitionists have rendered it impossible to get the 100% short drug. Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty? What do you think he means by guerrilla war? I think he's trying to say there are ways to, if you want to make the death penalty illegal, you have ways to do it. You can call your legislator, you can pressure them, they can pass a law. but you're trying to hide in the trees and like pulled drugs off and make them so scarce that you're forcing a legal problem that doesn't exist without you.

Should not have bearing on whether that method is constantly. I would like an answer to the question. You've been interrupted several times. The justices called you guys out kind of. You know, it's, look, you know, there's a lot of narrative around this being guerrilla activism, but this has nothing to do with. me or anyone else, it's that the companies don't want their medicines used in executions. The manufacturers, the distributors, the pharmacists, the anesthesiologists, the, you know,

European governments, whoever else it might be the Indian industry. None of them asked to be part of Ohio's capital punishment machine. But isn't there an argument to be made here? I mean, I get what she's saying that like all these different people in different countries have been like unknowingly drafted onto Ohio's execution team, which doesn't seem fair. But isn't there an argument it to be made that like even so the effect is that she has taken a death penalty that is kind of humane maybe and made it more cruel i mean because that's kind of the accusation in the air yeah it's it's i'm going to say two things one of them is a throw away um she didn't cause it she's the states are chasing the companies and she's chasing the states right so like you can't say

that she caused it but what you more importantly what you also can't say is that it is actually more cruel because there's no evidence that there's been an increase in botched executions. What I think is happening is just that we're paying more attention to lethal injection, right? We're just looking at it more. Oh, you mean like it's botched executions have been happening forever and we're just now noticing them? Yeah. Nonetheless, people do accuse her of making this more cruel and not just because of the drugs,

because states in their sort of desperation to still be able to do this are looking for other ways to do it. And some of those ways might seem like we're going backwards. The lady that was spearheaded, getting rid of the injections, all she did is basically forced people to be shot. This is Paul Ray. State Representative House District 13, Utah. He says one day he was sitting in his office.

I was actually listening to the local NPR station. And they were talking about... European pharmaceutical companies used to provide this controversial drug but now refused to sell it to American prisons. The European drug company is no longer selling the drug cocktail. And so I called our Department of Corrections and says, hey, do we have access to the drug? And they said, no, we don't.

You know, we have a set amount, and then we're out. He says he hung up the phone, did a little bit of thinking, a little bit of research. Kind of deep into the history. And eventually he came to the conclusion. Well, let's revert back to the firing squad. What you mean like firing squad, John Wayne firing squad? Like line up against the wall?

No, it's like they have a chair and they bring. the person into the room and they strap them to the chair, they put a hood over their head. A physician will locate the heart and they'll pin a target where the heart is. And then there's five men with rifles and one of them has a blank but none of them know which one it is. And then when the order is given, they all shoot the individual in the heart. Normakers in Utah have voted to bring back executions by firing squad if lethal injections are not readily available. Paul Ray says he was just trying to solve a problem. But I was completely taken off guard by the media frenzy that...

The cruel holdover from the state's Wild West days. That happened. The cruel relic of Old West justice. And will earn it international condemnation. The fact that Utah is adopting it now is an embarrassment. Barbaric. We shouldn't be shooting our people. This is ridiculous. This is not the time of Moses. Why is it that the...

Do you think the firing squad itself created this response? Well, it's brutal. You know, it's certainly not the easy, give them a couple of injections, and they quietly go down. You know, this is calling it for what it is. In fact, Paul would argue... If you want to look at something that's more humane, definitely the firing squad. What caught my attention was that it was so sudden, so quick, boom, boom, just like that. These are reporters talking about witnessing a firing squad execution in Utah.

It was over pretty quickly. It was cleaner than I expected. and it was fast. With the firing squad, you're dead within seconds of pulling the trigger. Five bullets directly to the heart. It's over. There's not the paralytic that hides it. It's done. But he moved.

He moved a little bit. And to some degree, that bothers me. And that seemed to carry on the last 60 to 120 seconds. So this is how Utah has to. chosen to solve the whack-a-mole problem. Yeah, and the firing squad has already been upheld by the Supreme Court. We have approved electrocution. We have approved death by firing squad.

That's Justice Scalia in 2008. The Supreme Court actually approved the firing squad in 1879. And the people who were part of the firing squad are actually volunteers. Do you have a lack of volunteers or an abundance of volunteers? We have an abundance. I know the last death penalty, they had hundreds. nobody's forced to do it. There are people that are willing,

they kind of see as their civic duty, you know, to help carry these out. And while I was down there, I actually asked Paul. I really want to talk to a volunteer member of the firing squad. If you'd put me in touch with somebody who's actually been involved with the firing squad. Well, we're done. Let's go in my office. I'll call somebody.

I'm going to wait until this thing passes us. That's an F-16 from Hill Air Force to the bombing range. All right. I like it. The sound of freedom. This is Kenny. We agreed not to use his last name. And Ken's dad ran the firing squad for a couple of decades. So as you see, there's two cottonwood trees over here. Those old cottonwood trees, they'd set up,

and that's where they would drill the firing squad at. These men were selected because, for one, they're absolute marksmen. Two, they just had moral clarity. Just they, many of them did not want to be on there, but once they were called, they felt obligated to see it through. Ken told me that on execution days, his dad and the other shooters, they would sit down together at the kitchen table. And, you know, it's just like a little family breakfast. And his mom.

She'd make coffee, and she would do scones or biscuits and gravy, and she wanted those men to know that it wasn't easy and that she appreciated them. I know there was a lot of prayer full times around the house, and those men were over getting ready. I know that it's a pretty solemn moment. What's the prayer? Is it for the person being executed, the victim with the prayer? I think you have to pray for strength to follow through on what you have to do. I think that, you know, you might need a little guidance and you might need a little understanding and something bigger than you is out there.

And I think that if we're going to have the death penalty, people just have to understand that there's some savagery involved in it. And it's unfortunate that it is, but if we have it to do, let's do it, but let's do it humanely. One of the things that I found kind of striking is that Maya FOA is against the death penalty, and you have the folks in Utah that are for it. But everyone seems to agree that we shouldn't fool ourselves. I favor the death penalty, but one thing I've never favored in, some common ground between me and the abolitionists is that lethal injection is a terrible method of execution.

That's Robert Blecker, a New York law school professor, sounding a little bit like Maya. But he says he objects to lethal injection, not because it's cruel. Not because it might cause pain, but because it certainly causes confusion. I attended an execution in Florida, Benny Demp's, and I also was with my father-in-law when he was in a hospice dying from an incurable and very painful cancer. And the death scene in both situations was bizarrely similar. In both cases, the person dying. was lying on a gurney with an IV coming out of his arm, wrapped in white sheets, medical technicians at his side surrounded by loved ones. And it struck me as bizarre that we are killing those whom we love

in a fashion that so nearly resembles how we are killing those we rightfully detest. There should be no resemblance. This isn't medicine. This is punishment. So the firing squad, is honest and it acknowledges itself for what it is. I have one objection to the traditional firing squad that Utah uses. He says he doesn't like the fact that one person gets a blank and that nobody knows who that person is. That to me is symptomatic of our failure once again to take responsibility for what we do. Nobody should have a blank. And if we cannot face what we're doing and acknowledge it, then we shouldn't do it.

And we may be coming to a moment where we are about to do that to look at this and acknowledge it. Because in 2014, in a case that was really just about lethal injection, Justice Breyer said, look, let's stop just talking about the details, like questions about which medicine that we use. The time has come for the court to again consider a more basic question whether the death penalty itself is constitutional. In other words, what he's saying is it's time to talk about not just like the mechanics of what we're doing, but whether we should even do it at all. Reporter Karen Duffin. Now, when Justice Breyer said that in 2014, he was in the dissent. But a lot of people heard that statement as kind of an invitation like Breyer saying to the lawyers of America, send us cases. Send us cases about this.

Up next, we'll have a conversation with a brother and sister team who've dedicated their lives to studying the death penalty and they'll tell us when we can expect that next big case. And whether or not the Supreme Court might ultimately force the country to join the rest of the West in abolishing the death penalty once and for all. I'm Chad Aboumrod back in a moment. My name is Santiago Fernandez de Cordoba. I'm calling him from Madrid, Spain. Radio Lab is supported in part by the Alfred P. Sloan Foundation, enhancing public understanding of science and technology in the modern world.

More information about Sloan at www.sloan.org. Adios. I'm Jad, this is Radio Lab. We're back with our story from More Perfect about the death penalty, which we're replaying because of the Attorney General's recent announcement. And just in a moment ago, at the conclusion of that segment, we heard Justice Breyer inviting cases about the death penalty up to the Supreme Court, saying basically it's time for the court to revisit the question of constitutionality.

At the time when we first reported this, we wanted to find out a little bit more about that. Like what exactly does that mean? When will it happen? When might it happen? I should say, what might it look like? So we sent a reporter, Sean Ramos firm out to look into that. Where do you two stand on the death penalty? Guess. I figured I'd just ask. We found two siblings, actually, who have dedicated their lives to studying capital punishment in America. I'm Carol Stiker.

I'm a professor at Harvard Law School. Earlier in my career, I was a law clerk for Justice Thurgood Marshall, for whom Jordan also clerked two years later. My name's Jordan Stiker. I'm a professor at the University of Texas School of Law, and I'm the director of the University of Texas School of Law's Capital Punishment Center. And you two are related, I think. We are. Most people think we're married, but in fact, we're brother and sister. How knowing is that when most people think you're married to your brother? We have a great line. People often ask us how we met. And I say, our parents brought him home from the hospital.

But I wasn't very impressed at the time. So our story starts with this execution being halted and then eventually being resumed. In what sounds like the middle of the night, it's happening like after hours at a prison. How is it that the Supreme Court, the most vaunted in our nation, deals with these sort of local life or death last minute calls at all hours of the day? Is RBG on call all day and all night? That doesn't seem to make much sense. Everyone knows now that the U.S. Supreme Court is the last stop for a contested execution.

That's just a fact of life. when we were law clerks on the court in the late 1980s, we would stay until late in the evening. It was the job of whoever the clerk was in each chambers who was responsible for that particular case to stay in chambers until the case made it to the court and was either stayed or the condemned was executed. Okay. There was a permanent clerk in the clerk's office of the Supreme Court, who was known as the death clerk. His job was to keep track, is to keep track of all of the death cases that are coming to the court, their execution dates, and to stay in touch with the attorneys on both sides. Do we think a death clerk gets paid more than a regular clerk for having maybe the worst job in the building? That's a good question. Don't know the answer to that one.

Okay. I'm curious. where our current nine justices come down on the death penalty right now? Evenly split between justices who... Just quick note, obviously that conversation happened a little while ago. In the time since we first aired the story, Justice Antonin Scalia passed away, Justice Anthony Kennedy retired. Two new justices are now on the court, Neil Gorsuch and Brett Kavanaugh, which means, of course,

the court looks a bit different now. When we checked back in with Carol, she said that while she thinks that this court is much less likely to strike down the death penalty, she still thinks that given recent events in states like California, where Governor Newsom recently stayed all executions, there is still a general movement away from the death penalty. Carol also pointed out that while the Attorney General's announcement may seem to be pointing us in the opposite direction, there are only six federal prisoners on death row, whereas in California,

that stay of execution applied to more than 700 death row inmates. We do think that the death penalty will eventually be struck down as unconstitutional under the Eighth Amendment simply because the way the court has thought about it in the cases in which it's narrowed the death penalty recently so that in the last 15 years the Supreme Court has said that people with intellectual disability can't get the death penalty, that juvenile offenders can't get the death penalty, that people who commit interpersonal crimes other than murder can't get the death penalty. In these cases where the Supreme Court has constrained

the scope of the death penalty, they've made it clear that the analysis involves considering whether the practice violates evolving standards of decency. It seems like the death penalty is on a collision course with the Supreme Court's Eighth Amendment jurisprudence. And as close court watchers and people who have served as clerks in the court yourselves, when do you think that case is coming? It's hard to say two years ago, many people thought that when justices, Breyer, and Ginsburg

signed on to that dissent, they were signaling that the time was nigh and that there were perhaps five votes on the court. why else would they call for the court to take this issue up? I recognize that we are a court, not a legislature. But the matters I have discussed are judicial matters. They concern the infliction of an unfair, cruel, and unusual punishment upon individuals at odds with a specific constraint that the The Constitution imposes upon the democratic process, namely through the Eighth Amendment.

In the two years since, there have been many opportunities for the court to do so, and it hasn't. So that suggests that the time is less nigh than court watchers thought it might be two years ago. We also think that the one major difference this time, which makes it so much more likely, that the death penalty will eventually be abolished, is the extent to which the United States stands virtually alone in its use and retention of the death penalty among Western democracies, that all of our peer nations have jettisoned the death penalty. And the outlier status is more remarkable than that. It's not just that we're the only Western democracy to retain the death penalty.

We're still one of the world's leaders in executions, even with the decline. and executions in the United States, we're in a very small club of active executing countries, along with countries like Iraq, Iran, China. United States is really in a very small group of nations that uses the death penalty in a regular way. Steve Bright, who's an anti-death penalty lawyer for most of his career is quite well known, he used to joke that in 1970, if you had asked anyone in 1970, which of the first of the following three countries would be the only one that would still have the death penalty at the turn of the millennium, Russia, South Africa, and the United States. Nobody would have picked the United States.

Right. In the 1970s, only 16 countries in the world were fully abolitionist by law. Today, more than two-thirds of the countries in the world are abolitionists by law or practice. The last I heard 60% of people approve of the death penalty in the country. Is that true? Well, it depends on how you ask the question. The Gallup polling organization has been asking people the same very simple question, do you support the death penalty for murder for almost 100 years? So it's easy to compare. You're comparing apples to apples. And support for the death penalty is around 60-ish percent now, which is down from 80-something percent. percent in the early 1990s. Okay. But if you ask the question in a different way, for example, if you ask people whether they'd support the death penalty or life without possibility of parole, I see.

You get very close to 50-50. And if you ask people whether they support the death penalty or life without parole with a prisoner working for restitution to the victim's family, support for the death penalty drops below 50%. One of the more striking figures is the number of states that have legislatively repealed the death penalty in recent years. So seven states passed repeal bills in the last 10 or so years. One of them, Nebraska, really the only red state to do so, brought the death penalty

back through a referendum procedure last November. But the fact that its Republican legislature repealed the state's death penalty. And then the Republican governor vetoed that repeal. And then the Republican legislature overrode the governor's veto with a two-thirds majority is a pretty striking indication of change in public attitudes. So what do we think has changed? I think there are a couple of things that have accounted for the decline in public support. One thing that happened in the 1990s was there was a growing awareness of wrongful death sentences. Right.

The decline in violent crime. The 1970s and 80s saw an extraordinary rise in violent crime in the United States, and that trend has reversed to some significant extent. And I also think that the concern about ordinary crime has been displaced a bit by concern about terrorism and other threats that are more existential than ordinary crime in the United States. It's also been the case that because of the court's intervention in the death penalty, the death penalty has become extraordinarily expensive. To just put a figure on that, if you look at how much the state of California has spent on its death penalty system, trials, appeals, maintaining death row, and you add that money up, and you divide it by the 13 executions that California has carried out in the last 40 years, you get a price tag of more than a quarter of a billion dollars per execution.

Are you serious? Do you think of every American knew that we'd still be at 60 percent? It's kind of hard to imagine when you think of what you could do to address legitimate concerns about crime and public safety with a quarter of a billion dollars other than execute another person. I think it's important to realize that in all of our peer countries that abolish the death penalty, a majority of the public supported the death penalty at the time of abolition. The support for the death penalty in Western Europe fell only after the abolition of the death penalty, not before. But those countries have much more parliamentary procedures.

They're more insulated from populist lawmaking, and they tend to defer to elites and to expertise on criminal justice policy. The other truly extraordinary and exceptional facet of the American death penalty in the modern era is that, and I think most people my age, I'm 32, I was born in the 1980s, I feel like most people my age don't even really know, is that we got rid of it for four years. We got rid of it actually for longer than that because the litigation that led up to the case, Furman v. Georgia, that abolished the death penalty brought the death penalty to a halt. for five years prior to that ruling. So there were no executions in the United States between 1967 and 1972 when the Supreme Court abolished it. The vote was five to four against the death penalty.

Justices Brennan and Marshall said it is cruel and unusual punishment and therefore unconstitutional. They would prohibit it entirely. Douglas wouldn't go quite as far. He said the death penalty has been imposed disproportionately on minority groups. More than half of the six 100 people now under death sentence are black.

And then there were no executions between 1972 and 1976 when the Supreme Court brought it back. And then the first execution after the revival of the death penalty was actually Gary Gilmore, who volunteered, gave up all his appeals, wanted to be executed in Utah in 1977. So there was a 10-year period, 1967 to 1977, in which there were no executions in the United States. States, the longest period in our history. You guys, sorry, were alive in that period, some of it, all of it? We were. We were children, but we were alive. Thank you very much, Sean. You're welcome.

But since you've studied it, I'm just so curious. I mean, what was that like? What was in the air then? And was it just a fight to bring it back the whole time? Or did it free criminal justice reformers up to worry about overpopulation of prison? or the sort of prison industrial complex in this country, did it make the country function better in some way? Or was it just this disastrous fight?

No, it really didn't. I mean, the moment at which the death penalty was suspended was one of the most turbulent moments in American history. It was, you know, right in the wake of the violence of the late 1960s that brought, that swept Richard Nixon into the presidency. and his promise was to restore law and order. There was an enormous political backlash when the Supreme Court struck down the prevailing death penalty statutes in 1972.

So even though it was a period without executions, it was not a period free of, you know, pro-death penalty agitation. In fact, it might have been, you know, the most extreme period of pro-death penalty agitation because of the perception that the Supreme Court was taking away this power from the states. And you think if your hypothesis bears out and the Supreme Court does abolish the death penalty or deem it unconstitutional in the next 10, 20, 30, 40, 50 years, do you think it will be gone for good this time? I do think that this time would be different. Last time when the Supreme Court abolished it and then four years later blinked and brought it back, it did so in a way of saying, well, these new statutes look like they're going to fix some of the concerns about arbitrariness and discrimination and lack of adequate process. That was 40 years ago.

It's pretty clear those statutes didn't do what many people. people hoped that they would do. I don't think it's possible for the court to take another mend it, don't end it approach. They tried that, and we've all tried that for a really long time. If it happened next year, if the Supreme Court abolished the death penalty next year with some degree of finality, what do you think you guys would do? What's the second biggest issue for you? Oh, there's so many, Sean. I'd say probably the two biggest issues are mass incarceration, the number of people that the United States locks up and for how long were an outlier in that area as well. And the ways in which our criminal justice policies really punish people for poverty,

the incredible fees and fines and bail amounts that end up locking people up in prisons and jails, not actually for the crimes, which are often petty that they've committed, but because they can't pay court costs or court fines or bail in order to get out. I'll just add that I would be thrilled for the Capital Punishment Center at the University of Texas to go out of business. The honor of all the Chief Justice and the Associate Justices of the Supreme Court of the United States. Sean Ramosferm, speaking with brother and sister Carol and Jordan Stiker from Harvard, and Texas law, respectively.

Sean, since working with us at Moore Perfect, has gone on to host an amazing podcast called Today Explained. Definitely check it out. In fact, last week they did an episode on the Attorney General's decision. It's called Reviving Death. Also, want to ask you for a little favor. Here at Radio Lab, we are collecting some feedback so we can optimize the way that we get you the show,

how we interact with you guys, how we can reach new audiences. We would love to hear from you guys. go to radio lab.org slash survey. It's a good chance for us to know how we're doing what you would like to hear and not hear. RadioLab.org slash survey. This episode of More Perfect was originally produced by me, Chad Abumrod, with Susie Lechtenberg, Karen Duffin, Sean Ramos firm, Tobin Lowe, Kelsey Padgett, Saurin, Alex Overington, and Ellie Mistal, with fact-checking by Michelle Harris.

From 30 feet underwater is created by Chad Avanrod and is produced by Soren Wheeler. Dylan Keefe is our director of sound design. Susie Lynchenberg is our executive producer. Our staff includes Simon Adler. Becca Bressler, Rachel Cusick, David Gevill. Bethel Hapte, Tracy Hunt, Nora Keller. Matt Kielke, Robert Krollwich, Annie McEwan, Latif Nasser, Sarah Parry, Adrian Wack, Pat Walters, and Molly Weps.

With home from Seema Ulii, W. Harry Fortuna, Ruth Samuel, Mani Leonard, Neil Dinesha, Sarah Sambach, and Melissa O'Donnell. Our fact checker is Michelle Harris.