Understanding the Death Penalty: Malcolm Gladwell on The Intercept Briefing

Malcolm and Liliana Segura, a criminal justice reporter at Intercept, sat down for an episode of The Intercept Briefing to discuss The Alabama Murders, the inherent cruelty of the death penalty, and the concerning rise of executions in America. See omnystudio.com/listener https://omnystudio.com/listener for privacy information.

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  This is Jacob Goldstein. When you're a business owner interested in expanding to new markets, there's a lot to consider and countless questions to answer before making the call. The most important one being, are you ready? That's where ChatGPT comes in. Give it a goal, add your files, and ask chat to help you map out different scenarios for the future of your business. So when growth is on the table, you've got an expansion plan ready to implement. Get started today at chatgpt.com.

• 0:28Malcolm Gladwell?

  This is a paid message from Apple Card. It's easy, I think, in the hubbub of our lives to lose track of our spending. We pay the bills and move on, and don't understand the deeper patterns in our spending, the many different decisions we're making knowingly or unknowingly. You have to understand where your money is going in order to make better decisions about it. That's one reason Apple Card stands out to me. You can earn unlimited daily cash back on every purchase you make. I also appreciate the simplicity. Apple Card doesn't have annual, late, or over the limit fees. No fees ever. There's even an option to open a high-yield savings account through Apple Card. And while I haven't done it yet,

• 1:09Malcolm Gladwell?

  if I do, my daily cash can grow automatically over time without any extra effort. When you better understand your spending habits, it's easier to make your money work harder for you. Apply in the Wallet app on your iPhone today. Subject to credit approval. Variable APRs for Apple Card range from 17.74% to 27.99% based on credit worthiness. Rates as of October 1, 2026. Existing customers can view their variable APR in the Wallet app or card.apple.com. Savings is available to Apple Card owners, subject to eligibility. Savings and Apple Card by Goldman Sachs Bank USA, Salt Lake City Branch, Member FDIC.

• 1:54Malcolm Gladwell?

  Terms and more at applecard.com.

• 2:06Speaker 02

  Hey, Revisionist History listeners. Ben Nautiff Hafer here. This past season on Revisionist History: The Alabama Murders, we told the tale of how one death snowballed into a cascade of moral failures, masked with legal fig leaves. The misunderstanding of what constitutes reasonable doubt, the myth that there's a painless way to kill somebody. At its core, The Alabama Murders is a searing critique of cruelty in America and the legal system that allows that cruelty to thrive. But the story goes much deeper than a single case or a single incident from the 1980s. As of December 1st this year, 11 states have executed a total of 44 people,

• 2:48Speaker 02

  making 2025 one of the deadliest years for state sanctioned killings. And in Alabama, they're still using nitrogen hypoxia, the brutal method pioneered in Kenny Smith's final execution. Malcolm recently joined Liliana Segura, a criminal justice reporter at The Intercept, to discuss capital punishment and what happens when a legal system that's supposed to catch mistakes and reduce harm doesn't. They also talk about why Malcolm felt drawn to investigate the death penalty in the series. It's a great conversation, and we thought that listeners of the series might want to hear it here. So here's the episode. Thanks for listening.

• 3:31Speaker 03

  Welcome to The Intercept Briefing. I'm Michaela Lacy. As of December 1st, officials across the US have executed 44 people in 11 states, making 2025 one of the deadliest years for state sanctioned executions in recent history. According to the Death Penalty Information Center, three more people are scheduled for execution before the new year. The justification for the death penalty is that it's supposed to be the ultimate punishment for the worst crimes. But in reality, who gets sentenced to die depends on things that often have nothing to do with guilt or innocence. Historically, judges have Disproportionately sentenced black and Latino people to death. A new report from the American Civil Liberties Union released in November

• 4:16Speaker 03

  found that more than half of the 200 people exonerated from death row since 1973 were black. Executions had been on a steady decline since their peak in the late 1990s, but the numbers slowly started to creep back up in recent years, more than doubling from 11 in 2021 to 25 last year. And we've almost doubled that again this year. Several states have stood out in their efforts to ramp up executions and conduct them at a faster pace, including Alabama. Malcolm Gladwell's new podcast series, The Alabama Murders, dives into one case to understand what the system really looks like, how it operates, and its inherent brutality.

• 4:59Speaker 04

  Thank you. Just got home from work and they come and he said, well, Mom, can you come? He said, the police are here.

• 5:06Speaker 05

  There's no sense in even having a jury. If you, if you're going to be able to overturn the jury, if a judge can overturn a jury. He said, but I was involved. And that's a horrible thing I was involved in. I've been in prison 24, 25 years. That's probably not long enough. And I didn't kill them.

• 5:31Speaker 06

  They get burned from the inside and then blood just pours into the lungs. And I'm sorry, as I'm saying this, it's awful. And this is what, this is how lethal injection actually kills you.

• 5:46Malcolm Gladwell?

  Here's what I don't understand. Nobody noticed this till you?

• 5:51Speaker 06

  Apparently not.

• 5:53Speaker 03

  Today, we're speaking with Gladwell, who's a writer at The New Yorker and co-founder of the podcast network Pushkin Industries. And we're joined by Intercept senior reporter Liliana Segura, who has covered capital punishment and criminal justice for two decades. We're going to talk about the deeply concerning issues surrounding capital punishment. How does the state decide who lives and who dies? What happens when the legal system that is supposed to catch mistakes doesn't? And what does it all say about our country? Malcolm, Liliana, welcome to the show.

• 6:24Malcolm Gladwell?

  Thank you.

• 6:25Speaker 03

  Thank you. Malcolm, the series starts by recounting the killing of Elizabeth Senate, but very quickly delves into what happens to the two men convicted of killing her, John Parker and Kenny Smith. You spend a lot of time in this series explaining, sometimes in graphic detail, how the cruelty of the death penalty isn't only about the execution, but also about the system around it, the paperwork, the waiting. This is not the kind of subject matter that you typically tackle. What drew you to wanting to report on the death penalty and criminal justice?

• 6:58Malcolm Gladwell?

  Well, I wasn't initially intending to do a story about the death penalty. I, on a kind of whim, spent a lot of time with Kate Porterfield, who's the psychologist who studies trauma, who shows up halfway through the Alabama murders. And I was just interviewing her about, because I was interested in the treatment of traumatized people. And she just happened to mention that she'd been involved with the death penalty case. And her description of it was so kind of moving and compelling that I realized, oh, that's the story I want to tell. But this did not start as a death penalty project. It started as an exploration of a psychologist's work. And it kind of took a detour.

• 7:38Speaker 03

  Tell us a little bit more about how the bureaucracy around the death penalty masks its inherent cruelty.

• 7:45Malcolm Gladwell?

  Well, you know, there's a wonderful phrase that one of the people we interviewed, Joel Zibit, uses. And he talks about how the death penalty, he was talking about lethal injection, but this is also true of nitrogen gas. He says, "It is the impersonation of a medical act." And I think that phrase speaks volumes, that a lot of what is going on here is a kind of performance that is for the benefit of the viewer. It has to look acceptable to those who are watching, to those who are kind of in society, who are judging or observing the process. It is the management of perception that is compelling and driving the behavior here,

• 8:30Malcolm Gladwell?

  not the actual. Treatment of the condemned prisoner, him or herself. And once you understand that, oh, it's a performance and a lot of it makes sense. One of the crucial moments in a story we tell is, you know, where there is a hearing in which the attorneys for Kenny Smith are trying to get a stay of execution. And they start asking the state of Alabama, the corrections people in the state of Alabama, to explain, did they understand what they would do? This was, they were contemplating the use of nitrogen gas. Did they ever talk to a doctor about the risks associated with it? Did they ever contemplate any of the potential side effects? Did they? And it turns out they had done none of that.

• 9:15Malcolm Gladwell?

  And it makes sense when you realize that's not what they're interested in. They're interested in the impersonation of a medical act, not the implementation of a medical act. The bureaucracy is there to make it look good. And that was one of the compelling lessons of the piece.

• 9:32Speaker 03

  And it's impersonating a medical act with people who are not doctors. Right? Like people who are not, do not have this training. Yeah.

• 9:39Malcolm Gladwell?

  In that hearing, there was this really incredible moment where one of the attorneys asks the man who heads Alabama's Department of Corrections, did you ever consult with any medical personnel about the choice of execution method and its possible problems? And the guy says, no. And it's just like that you just realize they're just mailing it in. Like they have no, state of Alabama is like, is not interested in exploring the kind of full implications of what they're doing. They're just engaged in this kind of incredibly sort of slapdash operation.

• 10:14Speaker 03

  Liliana, I want to bring you in here. You've spent years reporting on capital punishment in the U.S. and looked into many cases in different states. Why are states like Florida and Alabama ramping up the number of executions? Is it all politics? What, what, what's going on there?

• 10:32Speaker 07

  Yeah, so that is one of the questions that I think a lot of us who cover this stuff have been asking ourselves all year long. And to some degree, it's always politics. The story of the death penalty, the story of executions so often really boils down to that. We are in a political moment right now where the climate around executions certainly, but I think in general, a kind of appetite for our promotion of vengeance and sort of brutality towards our enemies is really shockingly real right now. And I was reluctant about a year ago to really trace our current moment to Trump, right? The death penalty

• 11:14Speaker 07

  has been a bipartisan project. I don't want to pretend like this is something that begins and ends with somebody like Trump. That said, you know, it's really shocking to see the number of executions that are being pushed through, especially in Florida. And this is something that has been ramped up by Governor DeSantis for purely political reasons. You know, this death penalty push in Florida began with his political ambitions when he was originally going to run for president. And I think that that, to some degree, is a story behind a lot of death penalty policies, certainly going back decades, and certainly speaks to the moment we're in. I did want to just also touch on some of what Malcolm

• 11:55Speaker 07

  was talking about when it comes to the performance, you know, of executions themselves over the past many years. I've reported on litigation, death penalty trials that have taken place in states like Oklahoma and here in Tennessee where I live, where we restarted executions some years ago after a long time of not carrying any out. And these trials had at the center the three-drug protocol that is described so thoroughly in the podcast. And it is absolutely true that these are protocols that are sort of designed with all of these different steps and all of these different parts and made to look, you know, using the tools of medicine to kill and made to look like this has really been thought

• 12:37Speaker 07

  through. But when you really trace that history, as you do, Malcolm, in your podcast, There's no there there. I mean, these were invented for the purpose of having a humane appearing protocol, humane appearing method, and it sort of amounts to junk science. There was no way to test these methods. There was no, nobody can tell us, as you describe in your podcast, what it feels like to, you know, undergo this execution process. And I think it's really important to remember that this is not only the story of lethal injection, this is a story of executions, you know, sort of writ large. When the electric chair came on the scene generations ago, it was also touted as the height of technology because

• 13:20Speaker 07

  it was using electricity and it was supposed to be more humane than hanging. There had been botched hangings that were seen as gruesome ordeals, you know. So there's this bizarre way in which history repeats itself when it comes to these methods that are promoted as, you know, the height of modernity and humanity, and it's just completely bankrupt and false.

• 13:39Speaker 03

  Malcolm, do you want to add something?

• 13:41Malcolm Gladwell?

  Yeah, I mean, we have a big focus. In the case I'm describing, Kenny Smith was notorious because he had a botched execution where they couldn't find a vein. And one of the points that Joel Zivit makes is that, well, of course, it's not surprising that they, in that case and in many others, they can't find a vein, because that is a medical procedure that is designed to be undertaken in a hospital setting by trained personnel with the cooperation of the patient, right? Usually, we'd find a vein and the patient cooperates because it's there, we're trying to save their life or make them healthier. This is a use of this procedure that is completely different. It is outside of a medical institution, not

• 14:26Malcolm Gladwell?

  being done by people who are experienced medical professionals, and is not being done with the cooperation of the patient, right? The patient in this case is a condemned prisoner who is not in the same situation as someone who's ill and trying to get better.

• 14:41Speaker 03

  I want to just walk our listeners through this. So this is, again, one of the pieces of the series, this three-drug protocol. First, there's a sedative, then there's a paralytic, and then there's finally a potassium chloride, which is supposed to stop the heart. How did that protocol come to be developed?

• 14:59Malcolm Gladwell?

  It was dreamt up in an afternoon in Oklahoma in the 1970s by a state senator and the Oklahoma Medical Examiner, who were just kind of spitballing about how they might replace the electric chair with something, quote, "more humane," unquote. And their model was, well, why don't we do, for humans, what we do with horses, which was a suggestion that had come from Ronald Reagan, then governor of California. So they just sort of generally thought, well, we can do a version of what we do in those instances, only we'll just ramp up the dose. You know, this is also a kind of anesthesia sometimes.

• 15:40Speaker 03

  This is advertised as something that is supposed to be painless.

• 15:44Malcolm Gladwell?

  Yeah, they had been using, and these drugs were also in use in the medical setting. But their idea was, we'll take a protocol that loosely based on what is used in the medical setting and ramp up the doses so that instead of merely sedating somebody, we're killing them. And it wasn't thought through, tested, analyzed, peer-reviewed. It was literally two guys dreaming up something in the back of an envelope. And one of the guys, the medical examiner, later regretted his part in the whole procedure. But the genie was out of the bottle, and everybody jumped on this as an advance over the previous iteration of killing technology.

• 16:26Speaker 03

  In addition to being advertised as painless, it's also supposed to be within the bounds of the Eighth Amendment protection against cruel and unusual punishment. Can you tell us about that?

• 16:35Malcolm Gladwell?

  Yeah, well, in order to satisfy that prohibition against cruel and unusual punishment.

• 16:43Malcolm Gladwell?

  You have to have some insight as to what the condemned prisoner is going through when they are being subjected to this protocol. The universe of people engaged in the Capital Punishment Project were universally indifferent to trying to find out how exactly this worked. They weren't curious at all to figure out, for example, was there any suffering that was associated with this three-drug protocol? Or which of the three drugs is killing you? Or, I mean, I could go on and on and on. They just implemented it, and because it looked good from the outside, because you have given someone a sedative and a paralytic, it's impossible to tell from the outside

• 17:26Malcolm Gladwell?

  whether they're going through any kind of suffering. It was just assumed that there should be no, there must be no suffering going on on the inside. And the Eighth Amendment does not say that people should not be subjected to the appearance of cruel and unusual punishment. It says, no, no, the actual punishment itself for the individual should not be cruel and unusual. So there was at no point could anyone, in the early history of this, did anyone truly satisfy the intent of the Eighth Amendment.

• 17:57Speaker 03

  Liliana, you've written a lot about this protocol as well, and the Supreme Court has taken a stance on it. Tell us about that.

• 18:04Speaker 07

  Yeah, so one thing that's really important to understand about the Eighth Amendment and the death penalty in this country is that the US Supreme Court has weighed in on the death penalty numerous times, including, but has never invalidated a method of execution as violating the Eighth Amendment ban on cruel and unusual punishment. And that fact right there, I think, speaks volumes. But one of the cases that I go back to over and over again in my work about lethal injection and about other execution methods dates back to the 1940s, and it's a case involving a man named Willie Francis, who was a teenager, a black teenager, who had been condemned to die in Louisiana. They sent him to the electric chair in 1946, and he survived.

• 18:48Speaker 07

  He survived their initial attempts to execute him. It's a grotesque ordeal. Been a lot written historically about this. But that case, they stopped the execution. He appealed to the US Supreme Court. And a majority of justices found that attempting to kill him again wouldn't violate the Eighth Amendment. And they sent him back in 1947. They succeeded in killing him. But the language that comes out of the court in this case really goes a long way to helping us understand how we ended up where we are now. You know, they essentially said accidents happen. Accidents happen for which no man is to blame. And there's another turn of phrase that's really galling. In which essentially they call this ordeal that he suffered

• 19:33Speaker 07

  an innocent misadventure. And this language, this idea that this was an innocent misadventure finds its way into subsequent rulings decades later. So in 2008, I believe it was, the US Supreme Court took up the three drug protocol, which at the time was being used by Kentucky. This was a case called Bates versus Reese. And there was a lot of evidence, there was a lot that the justices had to look at that should have given them pause about the fact that this protocol was not rooted in science, that there had been many botched executions in terms of the inability to find a vein, in terms of evidence that people were suffering on the gurney. The US Supreme Court upheld that protocol. And yet, right around the time that they handed down that ruling,

• 20:16Speaker 07

  states began sort of tinkering with the lethal injection protocol that had been the prevailing method for so long. Without getting too deep in the weeds, the initial drug, the drug that was supposed to anesthetize people who were being killed by lethal injection, had been originally a drug called sodium thiopental, which was thought to be, believed to be, for good reasons, you know, something that could basically put a person under and where they wouldn't necessarily feel the noxious effects of the subsequent drugs. States were unable to get their hands on this drug for a number of reasons, and subsequently began swapping out other drugs to replace that drug. And different states tried different things. A number of states eventually settled on this drug called midazolam,

• 20:59Speaker 07

  which is a sedative, which does not have the same properties as the previous drug. And has been, over and over again, experts have said that this is not a drug that's going to be effective in providing and anesthetizing people for the purpose of lethal injection. And the Supreme Court was once again ruled that this was true. In Oklahoma, this was the case Glossip versus Gross, which the Supreme Court heard after there had been a very high-profile, really gruesome, botched execution. A man named Clayton Lockett, who was executed in 2014. This ended up going up to the Supreme Court. And I covered that oral argument. And what was really astonishing about that oral argument wasn't just how grotesque it all was, but the fact that the justices were very clearly, very annoyed, very cranky about the fact that, you know,

• 21:44Speaker 07

  only a few years after having upheld this three-drug protocol, now they're having to deal with this thing again. And again, they upheld this protocol despite a lot of evidence that this was completely inhumane, that there was a lot of reason to be concerned that people were suffering on the gurney while being put to death by lethal injection. And so the reason I go back to the Willie Francis case is that it really tells us everything that we need to know, which is that if you have decided that people condemned to die in this country are less than human and that their suffering doesn't matter, then there's no limits on what you are willing to tolerate and uphold in upholding this death protocol that we've invented in this country. And so the Supreme Court has weighed in not only on the three-drug protocol,

• 22:28Speaker 07

  but on execution methods in general. And they have always found that there's not really a problem here.

• 22:34Malcolm Gladwell?

  As I say, at a certain point, it becomes obvious that the cruelty is the point. The Eighth Amendment does not actually have any kind of impact on their thinking because they are anxious to preserve the very thing about capital punishment that is so morally noxious, which is that it's cruel, right?

• 22:53Speaker 03

  Malcolm, one interesting thing that you talk about in this series is this concept of judicial override in Alabama where a judge was able to impose a death sentence even if the jury recommended life in prison. This went on until 2017. As we know, death penalty cases can take decades, so it's possible that there are still people on death row who have been impacted by judicial override. What's your sense about how judges who went that route justified their decisions, if at all?

• 23:25Malcolm Gladwell?

  Yeah, so Alabama was one of a number of, a small number of states who, in response to the Supreme Court's hesitancy about capital punishment in the 1970s, instituted rules which said that a judge can override a jury's sentencing determination in a capital case. So if a jury says, "We want life imprisonment without parole," the judge can impose a death penalty, or vice versa. The motivation for these series of override laws, and there are only about three or four states, Florida, Alabama, a couple of others had them, is kind of murky, but I suspect

• 24:06Malcolm Gladwell?

  what they wanted to do was to guard against the possibility that juries would become overwhelmingly lenient. The concern was that if this, that the public sentiment was moving away from death penalty to the extent that it would be difficult to impose a death penalty in capital cases unless you allowed judges to independently assert their opinion when it came to sentencing. And I also suspect that there's, to states like Alabama, there was a little bit of a racial motivation, that they thought that black juries would be unlikely to vote for the death penalty for black defendants, and they wanted to... Reserve the right to act in those cases.

• 24:48Malcolm Gladwell?

  And what happens in Alabama is that other states gradually abandoned this policy. But Alabama sticks to it. And Alabama sticks, not only that, they have the most extreme version of it. They basically allow the judge to overrule under any circumstances without giving an explanation for why. And when they finally get rid of this, they don't make a retroactive. So they only say, going forward, we're not going to do override, but we're not going to spare people who have already, who are on death row now because of override. We're not going to spare their lives. And it raises this question about, you know, the reason we call our series The Alabama Murders is that when you look very closely at the case we're interested in,

• 25:29Malcolm Gladwell?

  you quickly come to the conclusion, there's something particularly barbaric about the political culture of Alabama. I'm not news, by the way, for anyone who knows anything about Alabama. But Alabama is its own thing, you know? And they remain to this day, kind of clinging to this notion that they need every possible defense against the possibility that a convicted murderer could escape with his life. Right?

• 25:58Speaker 03

  Speaking of just this idea of the title of the show, I also want to bring up that I did not know that the autopsy and an execution, and I don't know that this is unique to Alabama, but that it marks the death as a homicide. I was actually shocked to hear that.

• 26:11Malcolm Gladwell?

  Yes, that interesting. That is the one moment of, the one moment of honesty.

• 26:16Speaker 03

  Right.

• 26:17Malcolm Gladwell?

  And self-awareness in this entire process.

• 26:20Speaker 03

  Right, and that's why it's shocking. It's not shocking because we know it's a homicide. It's shocking because they're admitting to it in a record that is, you know, accessible to the public at some point. After a quick break, more from Malcolm Gladwell, journalist, author, and host of the new Pushkin podcast, The Alabama Murders, and Intercept senior reporter Liliana Segura.

• 26:45Speaker 00

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• 27:22Malcolm Gladwell?

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• 28:05Malcolm Gladwell?

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• 28:38Malcolm Gladwell?

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• 29:22Malcolm Gladwell?

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• 30:05Malcolm Gladwell?

  That's better H E L P dot com slash gladwell.

• 30:11Speaker 03

  Malcolm, you mentioned the racial dynamic with Alabama in particular. But Liliana, I want to ask if you could maybe speak to the historic link between sort of the development of the death penalty and the history of lynching in the South?

• 30:24Speaker 07

  So it's really interesting. Alabama is, in many ways, the poster child for this line that can be drawn between not only lynching, but slavery to lynching, to Reconstruction, to state sanctioned murder. And that's kind of an uneasy line to draw in the sense of, you know, there's a reason that Bryan Stevenson, who is-- The head of the Equal Justice Initiative has called the death penalty "the stepchild of lynching." He calls it "the stepchild of lynching." And it's because, you know, there's something of an indirect link, but it's an absolutely, it's, it's, that link is real. And you really see it in Alabama and certainly in the South.

• 31:04Speaker 07

  And so in, I think it was in 2018, I went down to Montgomery a number of times for the opening of EJI's memorial, you know, lynching memorial that they had launched there. And this was a major event. And at the time, I went with sort of this, this link in mind to try to sort of interrogate and understand this history a little bit better. And I ended up writing this big, long piece, which I only recently went back to reread because it's not fresh in my mind anymore. But one of the things that is absolutely undoubtedly true is that the death penalty in the South in its early days was justified using the exact same rationale that people used for lynching, which was that this was about protecting white women from sexually predatory black men.

• 31:46Speaker 07

  And that line, that consistent sort of feature of executions, whether it was an extrajudicial lynching or an execution carried out by the state, has been really consistent and I think overlooked in the history of the death penalty. And part of the reason it's overlooked is that, again, going back to the Supreme Court, there have been a number of times that this history has come before the Supreme Court and other courts. And by and large, the reaction has been to look away, to sort of deny this. And that is absolutely true in the years leading up to the 1972 case Furman versus Georgia, which Malcolm alluded to earlier. There was this, there was this moment where the Supreme Court sort of had to pause executions. And this was a four-year period in the seventies.

• 32:29Speaker 07

  1972 was Furman versus Georgia, 1976 was Gregg versus Georgia. Part of the reason that Furman, which was this 1972 case, invalidated the death penalty across the country was because there was evidence that executions, that death sentences were being handed down in what they called "an arbitrary way." And in reality, it wasn't so much arbitrariness as very clear evidence of sentences that were being given disproportionately to people of color, to black people. And the history showed- That that was largely motivated by cases in which a victim was white. It was a white woman, maybe, who had been subjected to sexual violence. You know, there is that link, and I think it's really important to sort of remember that.

• 33:10Speaker 07

  In Alabama, one of the really interesting things, too, going back to judicial override, there's this kind of irony in the history of judicial override and the way that it was carried out by judges, where Alabama, when they restarted the death penalty in the early 80s, was getting a lot of flak for essentially having a racist death penalty system. And of course, there was a lot of defensiveness around this, and there were judges who actually, in cases where juries did not come back with a death sentence for a white defendant, there were cases where judges then overrode that decision in a sort of display of fairness. And one of the things that I found when I was researching my piece from 2018 was that there was a judge in, I believe it was 1999, who explained, you know, why he overrode

• 33:54Speaker 07

  the jury in sentencing this particular white man to die. And he said, "If I hadn't imposed the death sentence, I would have sentenced three black people to death and no white people." So this was his way of ensuring fairness. Well, I've got to override it here. Never mind what it might say about the jury, seeing the decision not to hand down a death sentence for a white person. You know, they needed, again, it goes back to appearance, they needed the appearance of fairness. And so Alabama really does typify a certain kind of racial dynamic in early history of the death penalty that you see throughout the South, especially, not just the South, but especially in the South.

• 34:28Speaker 03

  One of the things proponents of the death penalty are adamant about is that it requires some element of secrecy to survive. Executions happen behind closed walls, in small rooms, late at night. The people involved never have their identities publicly revealed or their credentials. The concern being that if people really knew what was involved, there would be a massive public outcry. Malcolm, in this series, you describe in gruesome detail what is actually involved in an execution. For folks who haven't heard the series, tell us about that.

• 35:01Malcolm Gladwell?

  Well, in Alabama, there is a long execution protocol.

• 35:06Malcolm Gladwell?

  Kind of a written script, which was made public only because it was, it came out during a lawsuit, which kind of lays out all the steps that the state takes. And Alabama also has, to your point, an unusual level of secrecy. So for example, in many states, the entire execution process is open at least to witnesses. In Alabama, they, you only see the person after they've found a vein. So the Kenny Smith case we were talking about where they spent hours unsuccessfully trying to find a vein, that was all done behind closed doors. And the second thing is that you pointed out is that people who are involved remain anonymous. And you can understand why.

• 35:48Malcolm Gladwell?

  I mean, it's a kind of, it is an acknowledgement on the part of these states that they are engaged in something shameful, right? If they were as kind of morally clear headed as they claim to be, then what would be the problem with making every aspect of the process public?

• 36:07Speaker 03

  Right.

• 36:08Malcolm Gladwell?

  But instead they go in the opposite direction and they try and shroud it, they make it as much of a mystery as they can. And, you know, it's funny, so much of the, of our knowledge about death penalty procedures only comes out because of lawsuits. It is only under the compulsion of the judicial process that we learn any, even the smallest tidbit about what's going on or what kind of thought went into a particular procedure. When we're talking about the state taking the life of a citizen of the United States, that's weird, right? We have more transparency over the most prosaic aspects of government practice than we do about something that involves something as important as taking someone's life.

• 36:49Speaker 03

  Liliana, you've witnessed two executions. Tell us about your experience and particularly this aspect of secrecy surrounding the process.

• 37:01Speaker 07

  Well, let me just pick up first on the secrecy piece because one of the really bizarre aspects of the death penalty, when you've covered it in different states and looked at the federal system as well, is that there's just this wide range when it comes to what states and jurisdictions are willing to reveal and show. What they are not willing to reveal is certainly the individuals involved. A ton of states have, or death penalty states, have passed secrecy legislation essentially, bringing all of that information even further behind closed doors. So, you know, the identity of the executioners was always sort of a secret, but now we don't get to know where they get the drugs. We don't get to know, you know, and in some states, in some places, the secrecy is really sort of shocking. Indiana,

• 37:44Speaker 07

  I just wrote a story about Indiana, which recently restarted executions, and Indiana is the only active death penalty state that does not allow any media witnesses. There is nothing, you know, and that's exceptional. And if you go out and try as a journalist to cover an execution in Indiana, it's not going to be like in Alabama or in Oklahoma, where, you know, the head of the DOC comes out and addresses things and says, you know, whether true or not true, everything went great. No, you are in a parking lot at midnight across from the prison. There is absolutely nobody coming to tell you what happened. It's a sort of ludicrous display of indifference and contempt, frankly, for the press or for the public that has a right and an interest in knowing what's happening in their names.

• 38:29Speaker 07

  So secrecy, there's a range, I guess, is my point. And yes, most places err on the side of not revealing anything, but some take that a lot further than others. In terms of the experience of witnessing an execution, you know, that's obviously a big question. I will say that both those executions were in Oklahoma. That is a state that has a really ugly, sordid history of botched executions, going back longer than 10 years. But Oklahoma became sort of infamous on the world stage about 10 years ago, a little more, for botching a series of executions. I've been covering the case of Richard Glossip for a while. Richard Glossip is a man with a longstanding innocence claim, whose death sentence and conviction was overturned only this year.

• 39:14Speaker 07

  Richard Losop was almost put to death by the state of Oklahoma in 2015, and I was outside the prison that day. And it's only because they had the wrong drug on hand that it did not go through. And so going into a situation where I was preparing to witness an execution in Oklahoma, I was all too keenly aware of the possibility that something could go wrong. And that's just something you you know, when you're covering this stuff. And instead, you know, Oklahoma carried out the three-drug protocol execution of a man named Anthony Sanchez in September of 2023. I had written about Anthony's case. I had spoken to him the day before and for the better part of a year. And I think I'm still

• 39:54Speaker 07

  trying to understand what I saw that day because, you know, by all appearances, things looked like they went as smoothly as one would hope, right? He was covered with a sheet. He, you know, you sort of saw the color in his face change. He went still. And as a journalist, or just an ordinary person, trying to describe what what that meant, what I was seeing, I couldn't really tell you because the process by design was made to look that way. But I could not possibly guess as to what he was experiencing. And again, that's because lethal injection and that three-drug protocol has been designed

• 40:39Speaker 07

  to make it look humane and make it look like everything's gone smoothly. I will say one thing that has really stuck with me about that execution was that I was sitting right behind the Attorney General of Oklahoma, Gennert Drummond, who has attended, I think to his credit, frankly, but who has attended every execution that has been carried out in Oklahoma under his tenure. And he was sitting in front of me and a member of the one witness who was there, who I believe was a member of Anthony's family, was sitting sort of one seat over. And after the execution was over, she was kind of quietly weeping. And Gennert Drummond, the Attorney General, who was responsible for this execution, kind of, you know, put his hand on her and said, I'm sorry for your loss.

• 41:25Speaker 07

  And it was this really bizarre moment because he was acknowledging that this was a loss, that this death of this person that she clearly cared about, he was responsible for it. And I don't know that he has ever said something like that since because a lot of us journalists in the room, you know, sort of reported back. And it's almost like, you're not supposed to say that, you know, there shouldn't be sorrow here, really, you know, this is justice. This is what's being done in our name. And I'm still trying to sort of figure out how I feel about that. Because by and large, in the executions I've reported on, you don't have the Attorney General himself or the prosecutor who sent this person to death row, attending the execution. It's sort of out of sight, out of mind.

• 42:08Speaker 03

  Malcolm, as we've talked about and has been repeatedly documented, the way that the death penalty has been applied has been racist and classist, disproportionately affecting Black and Latino people and poor people. It has also historically penalized people who have mental health issues or intellectual disabilities. Even with all that evidence, why does this persist? How has vengeance become such a core part of the American justice system?

• 42:39Malcolm Gladwell?

  Well, as I said before, I think what's happened is that the people who are opposed to death penalty are having a different conversation than the people who are in favor of it. That the people who are in favor of it are trying to make a kind of moral statement about society's ultimate intolerance of people who violate certain kinds of norms. And they are in the pursuit of that kind of moral statement, willing to go to almost any lengths. And on the other side are people who are saying that going this far is outside of the moral boundaries of a civilized state. Those are two very different claims that proceed on very different assumptions, and we're talking past each other. I would even...

• 43:23Malcolm Gladwell?

  So my point is, it doesn't matter to those who are making a broad moral statement about society's intolerance, what this condition, status, background makeup of the convicted criminal is, because they're not basing their decision on the humanity of the defendant, the criminal defendant. They're making a broad moral point, right?

• 43:43Speaker 03

  Right.

• 43:43Malcolm Gladwell?

  And I wonder, I've often wondered whether, in doing series as I did, That focus so heavily on the details of an execution, I'm kind of contributing to the problem. That if opponents make it all about the individual circumstances of the defendant, the details of the case, was the person guilty or not? Was the kind of punishment cruel and unusual? We're kind of buying into the moral error here. Because we're opening the possibility that if all we were doing was executing people who were 100% guilty, and if our method of execution was proven without a shadow of doubt to be quote unquote humane, then we don't have a case anymore.

• 44:26Speaker 03

  Right, then it'd be fine.

• 44:27Malcolm Gladwell?

  And I, you know, so when I look at what I've done, that's my one reservation about spending all this time on the Kenny Smith case is that we shouldn't have to do this. It should be enough to say that even the worst person in the world does not deserve to be murdered by state. That's not what states do, right? In a civilized society. That one sentence ought to be enough. And it's kind of a symptom of how distorted this argument has become, that it's not enough.

• 44:57Speaker 03

  Lilian, I want to briefly get your thoughts on this, too.

• 45:00Speaker 07

  Yeah, I think that people who are opposed to the death penalty and abolitionists oftentimes sort of say this is a broken system. And we talk about prisons in that way. This is a broken system. And I think it's a mistake to say that this is a broken system because I don't think that this system, at its best, as you've just discussed, would be fine if it only worked correctly. I think that that's absolutely not the case. And so I do agree that, you know, the system, I don't hide the fact that I'm very opposed to the death penalty. I don't think that you can design it and improve it and make it fair and make it just. I also think that part of the reason that people have a hard time saying that is that if you were to say that about the death penalty in this country, for all of the reasons that

• 45:42Speaker 07

  that may be true, then you would be forced to deal with the criminal justice system more broadly and with prisons and sentencing as a whole. And I think that there's a real reluctance to see the problems that we see in death penalty cases in that broader context. Because what does that mean for this country if you're calling the question on mass incarceration and in the purpose that these sentences serve?

• 46:06Speaker 03

  We've covered a lot here. I want to thank you both for joining me on the Intercept briefing.

• 46:10Malcolm Gladwell?

  Thank you so much.

• 46:11Speaker 07

  Thank you.

• 46:13Speaker 03

  Before we go, we want to hear from you. What do you want to see more coverage of? Are you taking political action? Are there organizing efforts in your community you want to shout out? Shoot us an email at [email protected] or leave us a voicemail at 530-763-2278. This episode was produced by Andrew Stelzer. Laura Flynn is our supervising producer. Simi Agarwal is our executive producer. Ben Musig is our editor in chief. Chelsea B. Coombs is our social and video producer. Desiree Adib is our booking producer. Fay Leo is our product and design manager. Narasimhan is our copy editor. Will Stanton mixed our show. And legal review by David Borello. Slipstream provided our theme music.

• 46:58Speaker 03

  If you want to support our work, you can go to theintercept.com/join. Your donation, no matter the amount, makes a real difference. And if you haven't already, please subscribe to The Intercept Briefing wherever you listen to podcasts and leave us a rating or a review. It helps other listeners find our recording. Until next time, I'm Michaela Lacy.

• 47:28Malcolm Gladwell?

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• 48:05Malcolm Gladwell?

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• 48:50Malcolm Gladwell?

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