More Perfect: Cruel and Unusual

Wait, you're listening to Radio Lab, from WNYC. Hey, I'm Matt Kilti, this is Radio Lab, and we are going to start today with Karen. Hello Matt. Sorry. No, it's my cue. Perfect. Right on cue. So Karen Duffin is a radio reporter. She's done stories for us here at Radio Lab. She has worked at this American Life. She co-hosted Planet Money. But way back in 2016, she reported a story for our Supreme Court spin-off show called More Perfect. And we are looking at the Eighth Amendment, so cruel and unusual punishment and whether the death penalty qualified for that. It wasn't that the first, I think it was the first episode of More Perfect. It was the first episode of More Perfect, yeah. The inaugural episode. How fun. It was. Except it's about death. I don't know what you do for fun, Matt, but that's up to you. But the death penalty has been back in the news lately, right? Yeah. It has. For a couple of reasons, actually, and they were almost kind of back to back. Good evening. I'm Nikki Batisse. We are coming on the air with a breaking news update in the-- September 30th, Tennessee tried to execute a woman named Christophe Pike, who might have been the first woman executed in Tennessee in more than 200 years. Oh, wow. But-- The lethal injection, Penta Barbatol. Penta Barbatol, which stops your breathing and your heart. Had been administered, but Pike still had a heartbeat. The execution was botched. The attorneys say she remains alive and in critical condition after the state administered two doses of Penta Barbatol intended to execute her. Oh, my God. She survived both of those. She lifted her head up and was looking around at one point. She said that there was a spot that was burning and hurting and asked if that was normal. None of it was normal. I covered all the executions last year, and most of the ones this year, we haven't seen anything like it. So that was in September the 30th and then basically a week later. No brainer. Execution by firing squad. Secretary-- it's the Secretary of War now? Yeah, the Secretary of War. Pete exists. Yes, he announced on October 7th. An army major betrays his country. Radical Islam is kills a bunch of Americans at Fort Hood. They would be live streaming an execution. Of course, we're going to do it at Fort Hood. A firing squad execution in December. I'm going to do it on a Thursday. We're going to do it at one o'clock, which is when he did it. That's going to be soldiers with rifles executing the firing squad. Trump approves it, and then there's tons of public pushback. And eventually the Trump administration starts backpedaling, too, and it does get canceled. But it just felt like everything that we talked about in that original episode, ten years later, it's back in the national conversation in a whole new way. So what we're going to do today is play that original episode of more perfect. It's called Cruel and Unusual. Then we're going to come back to Karen, who's talked to a bunch of people about the moment we're in right now. It's a moment for us to reflect about the death penalty, including from a lawyer named Carol Steiger, who has spent most of her career studying the death penalty. And it's striking to me how much people are reflecting about it. And a man named Damien Eccles. I'm pretty open to anything. You know, there might be something I can't answer for a legal reason. We've spent almost 20 years on death row before being released. But I'm pretty much open to whatever you want to talk about. So we have a lot to get to, but we are going to start out back in 2016 with Karen on more perfect. More perfect. Can we watch Teletubbies for a second? Although, that's also worth it, it's just five, two, three, two, one. Hey, I'm Jan Abumrod. This is more perfect, a mini series that we're just getting going about. Some of the ideas and the cases that flow through the Supreme Court. And we're going to start the series off with a story that isn't so much a courtroom drama. This one is about an issue that I think everybody agrees is about to land at the Supreme Court again in a big way. Here comes from reporter Karen Duffin and it begins with a mystery. 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. Close college flail. That's the word. The next central 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 view 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 at in the office tonight. She's 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 Landerkin is set to be put to death for killing Chester Dryer. Landerkin 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 legal 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? She raises her hand and she's like, I have 30 minutes, you know? 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 thirapental could have come from in the UK to get the US. Sodium thirapental 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 didn'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. Landrigin is running out of time and options. 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, as 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 US. 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, it got a bit of time. And the next morning I woke up, I was couch surfing, I was in someone's, and I turned on wall service and they announced that Jeffrey Landrigin was executed at 22, 26 hours. This 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 lifted the state of execution, allowing Landrigin to be put to death last night. It 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. So, you know, I took about a rude awakening and 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. It would spark a global conversation about the American death penalty and about those little words cruel and unusual that are embedded in our 8th Amendment. The honor of all the Chief Justice and the Associate Justice is of the Supreme Court of the United States. Oh, yeah, oh, yeah, oh, yeah, oh, yeah, oh, yeah, oh, person's having business before the honorable, the Supreme Court of the United States was managed to draw near and give her a fairytale. ♪ Rotterdam there, there, there, oh yeah ♪ - Gary, 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. (upbeat music) 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. - 'Cause the only US 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, thyopental?" - California got help from right next door. Arizona agreed to lend California a cup of death. - And there's actually just one great email like the California Department of Corrections. They send Arizona this thank you email. - Writing and I quote, "You guys in Arizona are lifesavers." (audience laughing) - Well, 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's doing all this research. She's calling pharma companies. - Coming 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. - Soldier and the 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 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 an active ingredients made in Austria. Some of those were sent over to Germany. They were packaged, put into vials. Those were sent over to the UK. There was one company that has the marketing authorization for all 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 ACL, you 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, perfectly. Willing the computer to download the documents so I could start looking through them and figuring out this stuff. And those were the documents that had the name of the middle map. - What was it? - Dream farmer. - Dream farmer. - Dream farmer. - Dream farmer. - Yeah. - Yeah. - Okay. - So she's in Malawi. So she, you know, rings up her calling and says, "Can you go just look at this place? It's in West London." 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." And I'm just going to try and go and knock on the door of the Elgon Driving Academy. - This is Nina Parris. She's a freelance producer in London. - It doesn't look too good. Is there a tiny little storefront? - Well, I can't see any evidence of driving. - And if you walk in. - 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 Hurt. He is Dream Farmer. In other words, the company that is helping prep up the death penalty system in America. - It's a one man operation, operating out of the back of a driving school. - One guy? - One guy. - He thought, well, this can't be true. - But they're interested in speaking to you about the injections for that you supplied to the states. - I found the get-go, I had no comments and I still have no comments. - Oh, so what was it like when the brief 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'd 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-- - A pleasure. - For doing that and thank you for bringing me to acting because I very much enjoyed walking around acting and meeting the people around here. - Okay. - Yeah, so what do you, what do you sell now? - It's irrelevant to your case. - Well, I'm just quite interested, as a citizen of London. - You're relevant to you. You're not in the business, that's irrelevant to you. - Okay. - Let's say, okay. Well, thank you very much for your time. - A pleasure. - And what was your name again, please? - You know my name, if not, find out. - Okay, thank you very much. - A pleasure. - Bye-bye. Do you actually do driving lessons? - You don't do driving lessons. - So once Maya and Reprie found that guy, Medialabi, in his pharmaceutical broom closet of death, the next step was pretty simple. They 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 brave its 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 export 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 that they're not gonna give this up without a fight. And so, over the next few years, you have like this arms race. Missouri says, "We're gonna find the drug in Germany." So Maya goes to Germany. And then she hears that a company called Hospiara 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 hospiara 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 gonna get their drug from this company called Lindbach. Maya calls them up. - And I remember my first call with them. - She was like, "Um, 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 Lindbach. - We have been in the farming industry for a little more than 100 years. And we are here to save people's life. This was a complete opposite of the intention of 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 gonna 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. ♪ All day, all day, all day ♪ - That's coming up on more perfect. (whooshing) - Hey, I'm Chad, I'm Umarad. This is more perfect. A mini series about some of the ideas and cases that are flowing through the Supreme Court, back to our story from reporter Karen Duffin. - So we left off with Maya in India, and they're wondering, "Why do you guys use drugs "to kill people? Why?" - Why would they use medicines? So what is the answer to that question? Why do we? Well, the answer to that goes back to this guy named Bill Weisman. It's a terrible thing to have one's reputation be based on coming up with a new way to kill people. Bill Weisman 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 KOTB in Tulsa back in 2005. What is, what's Bill's 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 Weisman is in the Oklahoma legislature and he's like, great, this is not a problem and I'll ever have to worry about the problem is the public is furious about this decision. Support goes from 50 to 63 percent in just two years. Do you think the death penalty should be reinstituted? Yes, I think so. Absolutely. Very much in favor. I'll be in favor of it. And we get some lower in order into this country. There's people writing furious about this. I don't think it should have taken away in the first place. And almost immediately 35 states rewrite their death penalty laws, essentially saying like, no, 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 Weisman gets elected smack dab in the middle of this. So 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 of 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 re-elected, whatever the reasons, I knowingly made a decision when I knew it was wrong, and that's, that's tough. So he's in the legislature and he's feeling like he just sold 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, "Yes, that." And he becomes obsessed with this idea. Oh, it's like a way to assuage his guilt. Yeah. So he brings 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, hypocritic oaths, you know, harm death is a little bit of harm. He goes to the state medical examiner, a guy named Jay Chapman, and Jay, just sort of like free styles is one line that, 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 it would be introduced a 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, we could do this right. And what Bill has just handed America is, is a way to have the death penalty but, 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 and 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. The first drug's best to necessitate is 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 potent acid that people have described as being like fire going through your veins and being 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 or 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 therefore what? Eighth Amendment violation, criminal and usual punishment? Exactly. So that drug, the anesthetic is the key drug. But over the past five and a half years, Maya has like whackled her way across 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 a 32-depth 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. Prison officials are in a difficult position. They even have the DA start rating prisons 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 and his chest off the gurney, grimacing. You also get scenes like this, clenching his teeth and a couple moments he actually mumbled. He would open his mouth and you'd see his chest move and go all the way down to his stomach. 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 starting losing the arm. He took him 43 minutes to die. Grizzly, horrific spectacle. And this kept happening. After an hour and 57 minutes, the state pronounced him dead. Good situations like this in Arizona, Ohio. The drug formula is unconstitutional because people started filing a bunch of lawsuits. And one of these eventually got to the Supreme Court. Case 14, 79, 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 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% sure 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 pull drugs off and make them so scarce that you're forcing a legal problem that doesn't exist without you. They should not have bearing on whether that method is conserved. 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, there's a lot of narrative around this being guerrilla activism. But this is 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 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 all these different people in different countries have been unknowingly drafted onto Ohio's execution team, which doesn't seem fair. But isn't there an argument to be made that even so, the effect is that she has taken a death penalty that is kind of humane, maybe, and made it more cruel? Because that's kind of the accusation in the air. Yeah, it's-- I'm going to say two things-- one of them-- Yeah, of course, right. She didn't cause it. The states are chasing the companies, and she's chasing the states, right? So you can't say that she caused it. But more importantly, what you also can't say is that it is actually a 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. 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 the getting rid of the injections, all she did is basically force 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 federal judge in Oklahoma. 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. We have a set amount, and then we're out. He says, he hung up the phone, did a little 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. [MUSIC PLAYING] What do you mean, 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. The 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 bin, none of them know which one it is. And then when the order is given, they all shoot the individual to have-- In the heart. [MUSIC PLAYING] And all makers in Utah have voted to bring back executions by firing squad if lethal injections are not readily available. Paul Rays says he was just trying to solve a problem. But I was completely taken off guard by the media frenzy that the cruel hold over from the state's Wild West days. That happened. A 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 should be shooting our people. This is ridiculous. This is not the time of Moses. Why is it that do you think the firing squad itself created this response? Well, it's brutal. It's certainly not the easy, give them a couple of injections, and they quietly go down. This is calling it for what it is. In fact, Paul would argue. If you want to look at something that's more humane, you're 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. If I bullets directly to the heart, it's over. It'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 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. That local jurisdiction, the first time. And the people who were part of the firing squad are actually volunteers. Do you have a whack of volunteers or an abundance of volunteers? We have an abundance. I know the last death penalty. They had hundreds of nobody's forced to do it. You know, there are people that are willing-- they kind of see as their civic duty 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 on my office. I'll call somebody. OK. I'm going to wait till this thing passes us. Sound of freedom is going. That's an F-16 from Miller 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 cotton with trees over here. Those old cotton with 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 marksman. 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. So 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, what's 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 use 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 my 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 of Benny Dems. 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. We 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, just as Briar said, look like, 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 the mechanics of what we're doing, but whether we should even do it at all. Okay, I'm here, back in the present day, back talking to Karen Duffin and I was just sort of realizing that it almost felt like at the end of that piece that we were sort of on our way to completely abolishing the death penalty. Yes. Okay. Yeah. And obviously that didn't happen. Yes. Breaking news. We're still doing it. Really, the only realistic path to that would be a decision by the US Supreme Court. And according to Carol Steiger, a law professor at Harvard, that prospect is low. She said we are significantly less likely to abolish because the makeup of the court has changed so much. Sure. So much conservative court. Yeah, exactly. But the leading indicator of what will happen in the future with the death penalty is new death sentences. And even in states that strongly support the death penalty, we see fewer and fewer death sentences. Oh, really? Yeah. Down more than 90%. Whoa. 90%. Yeah. Why do you think that is? Well, that's probably not a single reason. So one of the reasons why she said the death penalty is being handed down much less is because in the 90s and into the 2000s, there was a big movement to make L-Wop, as we say, life without parole, the alternative to the death penalty, which it now is in every state that has the death penalty. Before it was either you could get life, but maybe people thought they were going to get parole or something, so they were willing to put people to death. But now that there's life without parole is an option, people are choosing that more often. That's a relatively new thing. I didn't know that, but yeah. Yeah. And she said that lawyers are also just getting much better at presenting mitigating circumstances. People with intellectual disability can no longer constitutionally be executed. And also mental illness often prevents a death sentence from being handed down when correctly investigated and presented to juries. And she said cost is another reason. But rising cost of administering the death penalty. And it comes from the Supreme Court's insistence that there be, in essence, two trials, a trial and whether the person is guilty and then a separate trial on the correct sentence. So all of these things make capital trials much more expensive. She said urban areas are more likely to be able to afford to send it someone to death, but they are less likely to actually impose the death penalty. People in rural areas are more likely to support it, but those areas are less likely to be able to afford it. So kind of complicated, but there are also 23 states that have abolished it. Oh, wow. I had no idea it was that many. Yeah. And some of the things that have most influenced it have been concerns about wrongful convictions and executions. You know, most people's ideas of how the legal system and the justice system and all that stuff, our ideas of how that works come from things like TV shows and movies and books where there's always, you know, a hero in a last minute reveal and all these sorts of things. So I actually talked to a guy named Damien Eccles as part of this update. And he was arrested in Arkansas in 1993 when he was 18 years old for the murder of three children and was on death row for 18 years, but was innocent. The average person has no comprehension of how corrupt or bureaucratic the system is. Did you have any understanding of death row or the death penalty or opinions or ideas of what it was before you were sentenced? No, you know, honestly stuff like that played no role in my life. I was a teenager. So there was nothing in my existence or experience up until that point that would allow me to understand or comprehend anything about the system that I was in. Did you have an opinion about it like I didn't, okay, no, I absolutely didn't know. But he wrote an Instagram post recently, which is how we found him and he made it clear that he has these mixed feelings about the death penalty. You know, it's one of those things that there is no easy answer here. You know, people kind of expect me to be like super one-sided and have these ideas about the death penalty, but I've seen it from all perspectives and like I said, he had a good friend when he was on death row who did eventually get executed. And this man was guilty. He told me he was guilty. This was a man that I had seen actually break down crying before and telling me he wishes he were as evil as people said he was, because then he wouldn't be bothered by what he had done. But he was bothered by it and like he dreamed about it at night and it ate him up his entire life. But did he think that the death penalty was just given his remorse or did he feel more like, you know, he tried to drop his appeals a couple of different times because he wanted to be executed close to the end. Wow. What did you think? I don't know. This was a man who if he would have been let out of prison that day, if they would have just opened the gate and said, get out of here, leave. He would have never heard another soul in his life. On the other hand, I saw people that even after they're sent to prison, they continue to kill people even in prison. These are people who will hurt and kill people until the day that they finally leave this earth. And nothing's going to prevent it, nothing's going to stop it. My issue, my problem is I don't think executions should ever be allowed to be handed out by the state because I saw the inside of the machinery. I saw the inside of the bureaucracy, how corrupt it was, how political it is. Yeah. It's so interesting. So I studied a lot of the show that this was originally on was about the Supreme Court. You know, back in the 70s for a brief period of time, the death penalty was repealed because they said it was administered in an arbitrary way. But then all the states rushed to make all these laws and give more like sentencing guidelines. So then four years later, it was restored because the Supreme Court said, okay, now it's not arbitrary. Do you think that's true? I think it is, I think it is still to this day, it is completely and absolutely arbitrary. And whether or not someone gets a death sentence can depend upon something as fickle as it being a slow news day. He feels like, for example, there was a lot of pressure on the prosecutors to sentence him to death because he was convicted around the time of something that was called the Satanic Panic. So prosecutors were making a big deal out of like, we're cracking down on this. So if you got caught up in the Satanic Panic, then it's more likely just by coincidence, you know, of the year in which you were convicted that someone would seek the death penalty. So for him, these prosecutors aren't making decisions based just on the case. There's been a lot of studies about how the death penalty is administered, who gets it, and who doesn't get it. And we see such incredible arbitrariness, both in the ways in which you'd think, you know, racially inflected and who has the worst lawyer, that's a big driver of who gets the death penalty, but also incredibly geographically arbitraried. So in Texas, Texas as I believe 254 counties and in the modern era from 1976, you know, more than 200 of them haven't seen anybody executed. And it's really just a handful of those counties that have driven, you know, even Texas, which is by far the leader in executions in the modern era, even in Texas, you see this incredible lumpiness. So there's no way to look at how the death penalty is administered and think, oh, yeah. - Yeah, arbitrariness, we've solved that problem. We certainly have not. - But, you know, just saying philosophically, abstractly, I think there are people that the only thing that will stop them from hurting more people is execution. And I think in a situation like that, it makes sense to choose the lesser evil. But there's just too many other factors involved. So, you know, it's, I don't think it's a very cut and dried, black and white thing at all. - It's so interesting 'cause I just feel like, what's surprising about it is anytime you hear about somebody's lived experience where they actually come up against something, it feels like it's always so clarifying for them. - Oh, yeah. - And yet this is this case where somebody was on death row and yet walks away from it with a sense of like, yeah, I don't know, it's still. - Yeah, it got my dear. Like, the fact that he could be sort of complicated seems just so strange. - Yeah, but I should say there is one thing that he was very clear on. And this was actually in the Instagram post, you know, that he put up right after Hegseth announced the livestream. And what he said basically was, we should not do this. We shouldn't watch this. - You do not see someone killed and then walk away unchanged. When I was in prison, I saw people stab the death. The very first time I saw someone stab the death, it broke me in a way that I would never be the same again. You know, if it's being livestreamed, little kids were gonna see that. People were gonna start making memes about it and it was gonna be all over the internet. And people who never should have been exposed to that were gonna be exposed to it. - And with the stamp of approval of the federal government. - Yes, yep. - I feel like this moment with the proposed public firing squad execution with the botched execution of Christopoeic in Tennessee, that suddenly the death penalty is top of public consciousness for a moment. Maybe it's just the press that I read, but it's also like people in my life, many of whom are not opposed to the death penalty asking me about it, wanting to talk about it. I think it's kind of had that effect to make people think, hmm, maybe this is not such a great practice after all. If this is what it might come to. - Everything you've told me, it feels like we're in this strange kind of muddled place where it's like, are we in, is this a period of transition or is this just like some new normal of fractured opinions and confusion? - My hunch is that for as long as this country exists, we will swing back and forth on this one, because really the polls were swinging between our justice and mercy, and that's just a very human tug of war. - So we're just currently in yet another moment where the pendulum is in the midst of a swing. - Yeah. - Thank you to Karen Duffin, and actually speaking of this pendulum swing, as we were about to publish this episode on November 5th, Governor Gavin Newsom commuted the Descences of all 548 prisoners on California's death row. That is about a quarter of all death row inmates in the United States. It is the largest mass commutation of Descences in our history. The original more perfect episode was reported by Karen and produced by her with Chad Abumrod, Suzy Lechtemberg, Kelsey Paget, and Tobin Lowe. - You don't want to do the rest, sure. - With Soren Wheeler, Ellie Mistal, David Herman, Alex Overrington, Karen Duffin, Sean Ramasferam, Catherine Wells, Barry Finkel, Andy Mills, and Daniel Moatar. Special thanks to Ben Cohen, Mona Lynch, Austin Cert, Chris Zimmerman, Julie Toll, and the Death Penalty Information Center. Supreme Court audio is from Oye, a free law project in collaboration with the Legal Information Institute at Cornell. - More perfect is funded in part by the William and Flora Hewitt Foundation, the Charles Evans Hughes Memorial Foundation, and the Joyce Foundation. - I'm Matt Kilti, Radio Lab will be back next week. - Hi, I'm Maya, and I'm from London, and here are the staff credits. Radio Lab is hosted by Lulu Miller and Latifnasa. Soren Wheeler is our executive editor. Sarah Soundback is our executive producer. Our managing editor is Pat Walters. Dylan Keith is our director of sound design. Our staff includes Jeremy Bloom, W. Harry Fortuna, David Gable, Muria Paz Gutierrez, Matt Kilti, Mona Mordgaulco, Annie McEwan, Alex Neeson, Sara Carey, Natalia Ramirez, Joanna Strogatz, Anise Vitzer, Ariane Wack, Molly Webster, and Jessica Young, with help from Maya Abelby-Malamed and Laura Carpass. Our fact checkers are Nora Balblidia, Hilary Elkins, Rachel Gross, Diane Kelly, Emily Krieger, Natalie Middleton, and Sophie Samae. - Hi, I'm Aubrey, calling from Salt Lake City, Utah. Leadership support for Radio Lab's science programming is provided by the Simon Foundation and the John Templeton Foundation. Foundational support for Radio Lab was provided by the Alfred P. Sloan Foundation.