More Perfect: Cruel and Unusual

With the death penalty back in the news, we revisit a 2016 episode that asks: what is cruel and unusual punishment?

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  Wait, you're listening. Okay. All right.

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  Okay.

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  All right.

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  You're listening to Radiolab. Radiolab. From...

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  WNYC.

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  See?

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  Yep.

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  Hey, I'm Matt Kilty. This is Radiolab, and we are going to start today with Karen.

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  Hello, Matt. Like, that's my cue.

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  Perfect.

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  Hello, Matt.

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  Right on cue. So Karen Duffin is a radio reporter. She's done stories for us here at Radiolab. 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 spinoff show called More Perfect.

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  And we were looking at the Eighth Amendment, so cruel and unusual punishment, and whether the death penalty qualified for that.

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  It wasn't that the first-- I think that was the first episode of More Perfect.

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  It was the first episode of More Perfect, yeah.

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  The inaugural episode. How fun.

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  It was.

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  Except it's about-- it's about death.

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  I don't know what you do for fun, Matt, but that's up to you.

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  But the death penalty has been back in the news lately, right?

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  Yeah. It has, for a couple of reasons, actually. And they were almost kind of back to back.

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  Good evening. I'm Nikki Batiste. We are coming on the air with a breaking news update in the--

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  September 30th, Tennessee tried to execute--

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  Krista Pike.

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  A woman named Krista Pike, who might have been the first woman executed in Tennessee in more than 200 years.

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  Oh, wow.

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  But--

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  The lethal injection, pentobarbital--

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  Pentobarbital, which stops your breathing and your heart.

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  Had been administered, but Pike still had a heartbeat.

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  The execution was botched.

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  Her attorneys say she remains alive and in critical condition after the state administered two doses of pentobarbital intended to execute her.

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  Oh, my god.

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  She survived both of those.

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  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.

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  So that was in September, the 30th, and then basically a week later--

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  No-brainer. Execution by firing squad.

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  Secretary-- it's the Secretary of War now?

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  Yeah, the Secretary of War.

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  Pete Hegseth, yes. He announced on October 7th--

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  Army major, betrays his country, radical Islamist, kills a bunch of Americans at Fort Hood.

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  They would be livestreaming an execution--

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  Of course, we're going to do it at Fort Hood.

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  A firing squad execution in December.

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  And do it on a Thursday. We're going to do it at 1 o'clock, which is when he did it. And it's going to be soldiers with rifles executing the firing squad.

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  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, 10 years later, it's back in the national conversation in a whole new way.

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  Mm-hmm.

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  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.

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  It's a moment for us to reflect about the death penalty--

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  Including from a lawyer named Carol Steicher, who has spent most of her career studying the death penalty.

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  And it's striking to me how much people are reflecting about it.

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  And a man named Damien Echols.

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  I'm pretty open to anything. You know, there might be something I can't answer for a legal reason.

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  Who spent almost 20 years on death row before being released.

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  But I'm pretty much open to whatever you want to talk about.

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  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.

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  Can we watch Teletubbies for a second?

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  Although that's also horrifying.

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  That's true.

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  Hey, I'm Jana Bumrad. 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. Story comes from reporter Karen Duffin, and it begins with a mystery.

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  Right.

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  All right, so we're starting with Maya, right?

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  With Maya, yeah.

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  Maya Foer. I am the Director of the Death Penalty Team at Reprieve.

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  Okay, so Maya Foer 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.

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  Post-college flail.

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  Sort of.

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  A national crisis, and I wrote to a couple of organizations and said, you know, "Please, can I be useful to you?"

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  She ends up volunteering at this place called Reprieve.

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  Legal organization that did death penalty cases.

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  Are they, like, a bunch of lawyers, or what do they do?

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  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.

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  I view the death penalty, and I viewed it at the time, as sort of the sharp end of a series of societal injustices.

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  So anyway, she's at Reprieve one night. This was 2010.

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  I was sat in the office, and I--

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  She's sitting there one night, and Clive Stafford-Smith, who's the president of Reprieve, or the head of Reprieve, calls and says--

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  "Look, we've got an execution tonight."

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  "There's an execution in Arizona tonight."

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  Jeffrey Landrigan is set to be put to death for killing Chester Dryer. Landrigan was found guilty of strangling and stabbing the man in 1989.

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  So Clive says, "There's an execution tonight, and we just found out that the lethal injection drugs that they're going to use--

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  They came from a pharmacy in England.

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  But we don't know which pharmacy, because Arizona refuses to release the name.

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  Does anyone in the office have some time, a volunteer, have some time to figure out where those drugs could have come from?

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  And she raises her hand, and she's like, "I have 30 minutes," you know?

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  And I said, "Yeah, sure. I've got, you know, I've got half an hour." I didn't know what I was starting when I started it.

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  So wait, why do they want to find this supplier? Like, why does that help them?

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  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.

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  Did they have any reason to think the drugs weren't FDA-approved?

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  It was kind of a hail mary.

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  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 thiopental could have come from in the UK to get to the US.

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  Sodium thiopental is an anesthetic, and for a long time, it was one of the most common anesthetics used in surgeries. But it's also one of the drugs used in lethal injection.

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  I was sort of-- 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.

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  Landrigan is running out of time and options.

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  And it was-- I was in the UK, so it was the evening--

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  Which is morning Arizona time.

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  We had just a number of hours.

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  She's, like, frantically searching through all these, like, global medical regulations, and, you know, she can't figure out exactly what the name of the company is.

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  Because there was no way to know at that point.

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  But ultimately, she does figure out that there are no UK companies authorized to ship this drug to the US.

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  There was no, effectively, no FDA-approved supplier of the stuff.

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  So whatever this mystery pharmacy was, it probably wasn't FDA-approved.

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  And I remember, you know, I emailed that over. I think we either turned it into an affidavit from me or from Clive.

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  They write up a quick affidavit. They send it back to the states.

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  And the execution that night was stayed--

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  Like halted.

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  When I went to sleep, it had been stayed, and I just thought, "Okay, great. You know, we've got a bit of time."

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  The next morning--

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  I woke up. I was couch-surfing. I was in someone's. And I turned on World Service, and--

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  They announced that-- Jeffrey Landrigan was executed at 22, 26 hours.

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  Yeah. His final meal was a piece of steak. His last words were, "Well, I'd like to say thank you to my family."

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  And boomer sooner.

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  It turned out while Maya was asleep.

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  The state appealed all the way to the Supreme Court. And late yesterday, the justices, by a five to four vote, lifted the stay of execution, allowing Landrigan to be put to death last night. The stay was was put in place due to concern over lethal injection drugs. One of those drugs obtained from Britain was not FDA approved, but the US Supreme Court did rule that there was no reason to believe that the drug wasn't safe. So Jeff, you know, talk about a rude awakening in the literal sense.

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  Now, that rude awakening would send Maya on a journey around the world. It would get her called out by the United States Supreme Court. And it would spark a global conversation about the American death penalty and about those little words cruel and unusual that are embedded in our Eighth Amendment.

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  The honor of all the chief justices and the associate justices of the Supreme Court of the United States.

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  Oh, yay, oh, yay, oh, yay. All persons having business before the honorable the Supreme Court of the United States are admonished to draw near and give their attention. For the court is now sitting.

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  God save the United States in this honorable court.

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  All right, back to Karen.

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  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.

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  In the fall of 2010, when Jeffrey Landrigan was executed, the drug that they'd used.

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  The lethal drug sodium thiopental.

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  Was suddenly in really short supply.

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  There was a nationwide shortage.

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  Because 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 thiopental?

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  California got help from right next door. Arizona agreed to lend California a cup of death.

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  And there's actually this one great email exchange between like the California Department of Corrections. They send Arizona this thank you email.

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  Writing, and I quote, "You guys in Arizona are lifesavers."

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  We'll buy you a beer next time I see you.

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  You're a lifesaver.

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  Yes.

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  Come on.

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  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.

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  So after the execution, Maya is doing all this research. She's she's calling pharma companies.

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  Calling through these documents.

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  And very quickly, she learns that the same company that is sending drugs to Arizona had sent drugs to like lots of different states.

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  Georgia and South Carolina, Kentucky. California and various other places.

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  They'd actually become one of the primary suppliers of lethal injection drugs to the United States.

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  Wait, tell me again, why was it so hard to find out information about this company?

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  So what happens is that anybody involved with an execution, your name is kept confidential. And states have started keeping companies' names confidential, too.

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  I see.

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  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.

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  We had figured out it had come originally from, there were some 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 the product. They were sold to another one. That company changed. And then they were sent to this company in England.

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  Which she still can't figure out the identity of. But then the real breakthrough came just a couple of months after Jeffrey Landrigan was executed.

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  I think there was lots of material coming out at that time. I remember California and the ACLU got a batch of documents and.

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  And in one of these batches of documents, she finds an invoice. And this invoice has a name on it.

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  I just I just remember getting the court documents. And I was I was working with this very slow internet connection.

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  She was actually in Malawi at the time.

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  Just sort of, you know, fervently, you know, willing the computer to download the documents. So I could start, you know, looking through them and figuring out this stuff. And those were the documents that had the name of the middleman.

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  What was it?

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  Dream Pharma.

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  Dream Pharma?

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  Dream Pharma.

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  Dream Pharma.

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  Yeah.

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  Huh.

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  Yeah.

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  Okay.

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  Yeah. So she's in Malawi. So she, you know, rings up her colleague and says, can you go just look at this place? It's in West London.

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  And it's this residential area, but also like with sort of warehouses, kind of middle class.

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  You have a couple of petrol stations, a couple of cafes, and then this pharmacy, except that it doesn't look like a pharmacy because it's got a big sign on the front that says, Elgon Driving Academy. I'm going to go and try and go and knock on the door of the Elgon Driving Academy.

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  This is Nina Parrish. She's a freelance producer in London.

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  It doesn't look too good. It's there's a.

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  Tiny little storefront.

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  Well, I can't see any evidence of driving. And if you walk in.

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  Hello?

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  You walk in and in the front, it's just this reception area. But in the back.

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  Hi.

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  I'm looking for Dream Pharma. Is that you? Oh, hi, I'm recording for.

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  There's a guy sitting at a desk. His name is Mehdi Alavi. He's in his 50s, gray feathered hair, kind of like square glasses. Looks a little bit like William Hurt. He is Dream Pharma. In other words, the company that is helping prop up the death penalty system in America.

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  It's a one man operation, operating out of the back of a driving school.

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  One guy?

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  One guy.

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  And I 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. From the get go, I had no comments, and I still have no comments. Oh, so what was it like when Reprieve came to find you? Ask them yourself. What was it like for you? Ask them for yourself. Okay. Are you still supplying the states with? No. No. No, it's illegal. Oh, right. Did you were you aware of that? It wasn't illegal at that point. Oh, right. So then it became illegal. That is correct. Oh.

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  Would you mind me asking how you came to get involved in that in the first place? How they came to find you or you to find them? They found me. They found you? Wow. Were you surprised when they got in contact with you?

• 15:49Speaker 04

  Surprised? I don't know at that point. No, but I guess it unraveled somewhat to.

• 15:59Speaker 04

  I got no further comments, my dear. Okay. Well, thank you very much for. Pleasure. For doing that. And thank you for bringing me to Acton because I very much enjoyed walking around Acton and meeting the people around here. Okay. Yeah. So what do you what do you sell now?

• 16:16Speaker 04

  It's irrelevant to your case. Well, I'm just quite interested, as a citizen of London. It's irrelevant to you. You're not in the business. That's irrelevant to you. Okay? So, okay. Well, thank you very much for your time. Pleasure. And what was your name again, please? You know my name? If not, find out. Okay. Thank you very much. Pleasure. Bye bye.

• 16:37Speaker 04

  Do you actually do driving lessons? It's irrelevant to you. You don't do driving lessons?

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  So once Maya and Reprieve found that guy Mehdi Alavi 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.

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  We have a law that prohibits exports of products for the facilitation of capital. Punishment or torture. It's called the torture regulation. The anti-torture regulation. With this text, unique in the world, the EU is profoundly committed to the fight against torture and the death penalty. And when they realized that the sole purpose of the exports of this drug was for executions, they put an export control in place.

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  And just like that, the supply of this drug is turned off.

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  So the states were just out of luck?

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

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  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 executions. A Hospira spokesperson said, "We cannot take the risk that we will be held liable by the Italian authorities if the product is diverted for use in capital punishment."

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  And then Denmark. A bunch of states, Florida, Ohio, Alabama, 11 other states, they all decide they're going to get their drug from this company called Lundbeck. Maya calls them up.

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  And I remember my first call with them.

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  She was like, um, did you know that your drug's being used in executions? And they were like, what?

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  It certainly came as a huge surprise for us.

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  This is Anders Schroll. He's vice president for communications at Lundbeck.

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  We have been in the pharma industry for a little more than 100 years, and we are here to save people's lives. This was the complete opposite of the intention of this product.

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  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.

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  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?

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  Like, if you're going to kill someone, just kill them.

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  Why are you using something that saves lives to do it?

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  And actually, there's a really interesting story about why we do it that way.

• 19:35Speaker 02

  That's coming up on More Perfect.

• 19:41Speaker 04

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• 22:28Speaker 02

  I'm Jad Abumrad. 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.

• 22:38Speaker 01

  So we left off with Maya in India, and they're wondering, why do you guys use drugs to kill people?

• 22:43Speaker 04

  Why? Why would they use medicines?

• 22:46Speaker 02

  So what is the answer to that question? Why do we?

• 22:48Speaker 01

  Well, the answer to that goes back to this guy named Bill Weisman.

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  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.

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  Weisman died in a plane crash in 2007. This is him in an interview with a reporter named Scott Thompson on KOTV in Tulsa back in 2005.

• 23:15Speaker 02

  So what is, what's Bill's story?

• 23:17Speaker 01

  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.

• 23:48Speaker 06

  The Supreme Court declared the death penalty unconstitutional today and spared the lives of 600 men in death row cells across the country.

• 23:56Speaker 01

  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. He's like, great, this is not a problem I'll ever have to worry about. The problem is, the public is furious about this decision. Support goes from 50 to 63% in just two years. Do you think the death penalty should be reinstated?

• 24:23Speaker 06

  Yes, I think so.

• 24:24Speaker 04

  Absolutely. I'm very much in favor. Highly in favor of it.

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  And we get some law and order into this country.

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  There's people writing furious obits.

• 24:31Speaker 06

  I don't think you should have taken it away in the first place.

• 24:33Speaker 01

  And almost immediately, 35 states rewrite their death penalty laws, essentially saying, like, 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.

• 24:49Speaker 01

  So 1972, the death penalty is abolished. 1976, it's reinstated. Bill Weisman gets elected smack dab in the middle of this. So, you know, in 1976, suddenly, there's a bill in the Oklahoma State Legislature about whether to reinstate the death penalty, and Bill has to vote on that.

• 25:05Speaker 06

  I know 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.

• 25:22Speaker 01

  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.

• 25:29Speaker 06

  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.

• 25:39Speaker 01

  He voted to reinstate the death penalty.

• 25:41Speaker 06

  For whatever reasons of ego or vanity or need or the motivation to get reelected, whatever the reasons, I knowingly made a decision when I knew it was wrong. And that's, that's tough.

• 26:01Speaker 01

  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, that, yes, that. And he becomes obsessed with this idea.

• 26:17Speaker 02

  Oh, it's like a way to assuage his guilt?

• 26:19Speaker 01

  Yeah. So he rings up some anesthesiologists and doctors and says, I want to find a better way to do this. And they say, we can't help you because the Hippocratic oath, do no harm, death is a little bit of harm. So he goes to the state medical examiner, a guy named Jay Chapman. And Jay just sort of like freestyles this one line that Bill literally just sits with a yellow legal pad and writes word for word.

• 26:40Speaker 06

  It said, an intravenous saline drip should be established into which would be introduced a ultra-short-acting barbiturate in combination with a chemical paralytic.

• 26:53Speaker 01

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

• 27:32Speaker 02

  The ideal death penalty.

• 27:34Speaker 01

  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.

• 27:47Speaker 06

  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.

• 27:56Speaker 01

  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.

• 28:09Speaker 06

  How does the man who came up with the recipe for lethal injection, what does he do on Judgment Day? The same thing everyone else does, throw ourselves on the mercy of God, say that we have done wrong and we're sorry.

• 28:24Speaker 01

  And the thing that I find really interesting is that if you look at the modern lethal injection cocktail, it's three drugs.

• 28:32Speaker 04

  The first drug's supposed to anesthetize you, the second drug paralyzes you, and the third drug is the acid that stops the heart and kills you.

• 28:39Speaker 01

  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.

• 29:00Speaker 04

  The second drug is purely cosmetic. It serves no medical purpose. The reason it was put into the lethal injection cocktail in the first place was so that if the first drug doesn't work effectively, the second drug will mask any signs of visible suffering. And it would be extremely significant because the potassium chloride is this potent acid that people have described as being like fire going through your veins and being burnt alive from the inside.

• 29:35Speaker 01

  She says, just imagine that that's happening to you, but something goes wrong with the anesthetic and you become conscious.

• 29:42Speaker 04

  You have this burning acid going through your body and you are paralyzed, all your voluntary muscles are paralyzed. So you can't say, I'm awake, I can feel everything, this is agony.

• 29:54Speaker 01

  She says that it's that second drug that is both...

• 29:57Speaker 04

  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.

• 30:09Speaker 02

  So does she end up going after that second drug, the paralytic?

• 30:13Speaker 01

  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...

• 30:24Speaker 05

  The first sodium thiopental...

• 30:26Speaker 01

  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...

• 30:34Speaker 05

  The parties agree that successful delivery of the first drug is necessary to prevent the prisoner from experiencing severe pain.

• 30:42Speaker 02

  So if there's no anesthetic, there's pain, which would be too severe and then be therefore, what, an Eighth Amendment violation, cruel and unusual punishment?

• 30:51Speaker 01

  Exactly. So that drug, the anesthetic, is the key drug. But over the past five and a half years, as Maya has like whack-a-mold her way across these different companies, she's just made it harder and harder to get.

• 31:04Speaker 04

  There are now 20-plus companies who have, they've said, we disapprove of the misuse of medicines in executions and we're going to take steps to prevent it.

• 31:13Speaker 01

  And that has states scrambling.

• 31:15Speaker 04

  The drugs used in the 32 death penalty states are now running out.

• 31:20Speaker 06

  They have run out of drugs.

• 31:21Speaker 01

  And as a result, what you've seen is that things have gotten very DIY.

• 31:25Speaker 06

  They're changing and trying new procedures never used before in the history of executions.

• 31:30Speaker 04

  Prison officials are in a difficult position.

• 31:32Speaker 01

  You even have the DA start raiding prisons.

• 31:36Speaker 04

  Confiscating the drugs during the import process.

• 31:38Speaker 01

  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 of moments, he actually mumbled.

• 31:57Speaker 06

  He would open his mouth and you'd see his chest move and it would go all the way down to his stomach. So it was a clear gasp.

• 32:02Speaker 01

  April 29, 2014, in Oklahoma, a man named Clayton Lockett was being executed for murder, rape, and kidnapping.

• 32:10Speaker 04

  Lockett's execution used a new drug combination whose source is unknown.

• 32:14Speaker 01

  He was sedated and declared unconscious, but...

• 32:17Speaker 05

  He started thrashing, clenching his teeth and...

• 32:20Speaker 04

  He started moving the arms, his legs.

• 32:22Speaker 01

  It took him 43 minutes to die. Grisly, horrific spectacle. And this kept happening. After an hour and 57 minutes, the state pronounced him dead. You had situations like this in Arizona, Ohio.

• 32:35Speaker 04

  This drug formula is unconstitutional because...

• 32:37Speaker 01

  People started filing a bunch of lawsuits, and one of these eventually got to the Supreme Court. Case 147955. 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.

• 32:59Speaker 06

  Executions could be carried out painlessly. There are many jurisdictions, there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide.

• 33:08Speaker 01

  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.

• 33:37Speaker 02

  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?

• 33:47Speaker 01

  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 like hide in the trees and like pull drugs off and make them so scarce that you're forcing a legal problem that doesn't exist without you.

• 34:08Speaker 05

  It should not have bearing on whether that method is constitutional.

• 34:11Speaker 01

  I would like an answer to the question. You've been interrupted several times. The justices called you guys out, kind of.

• 34:18Speaker 04

  You know, it's, look, you know, there's a lot of narrative around this being guerrilla activism, but this has nothing to do with me or anyone else. It's that the companies don't want their medicines used in executions, the manufacturers, the distributors, the pharmacists, the anesthesiologists, the, you know, European governments, whoever else it might be, the Indian industry. None of them asked to be part of Ohio's capital punishment machine.

• 34:45Speaker 02

  But isn't there an argument to be made here? I mean, I get what she's saying, that like, all these different people in different countries have been like unknowingly drafted onto Ohio's execution team, which doesn't seem fair. But isn't there an argument to be made that like, even so, the effect is that she has taken a death penalty that is kind of humane, maybe, and made it more cruel? I mean, because that's kind of the accusation in the air, right?

• 35:08Speaker 01

  Yeah, it's, it's, I'm going to say two things. One of them is a throwaway.

• 35:12Speaker 02

  Yeah, go for it.

• 35:13Speaker 01

  She didn't cause it. She's, the states are chasing the companies and she's chasing the states, right? So like, you can't say that she caused it. But what you, more importantly, what you also can't say is that it is actually more cruel because there's no evidence that there's been an increase in botched executions. What I think is happening is just that we're paying more attention to lethal injection, right? We're just looking at it more.

• 35:37Speaker 02

  Oh, you mean like it's, botched executions have been happening forever and we're just now noticing them?

• 35:41Speaker 01

  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.

• 35:58Speaker 00

  The lady that was spearheaded the getting rid of the injections, all she did is basically force people to be shot.

• 36:04Speaker 01

  This is Paul Ray.

• 36:06Speaker 00

  State Representative, House District 13, Utah.

• 36:08Speaker 01

  He says, one day, he was sitting in his office.

• 36:12Speaker 00

  I was actually listening to the local NPR station.

• 36:14Speaker 06

  Federal judge in Oklahoma is...

• 36:16Speaker 00

  And they were talking about... European pharmaceutical companies used to provide this... controversial drug, but now refuse to sell it to American prisons. The European drug company is no longer selling the drug cocktail. And so I called our Department of Corrections and says, hey, do we have access to the drug? And they said, no, we don't. You know, we have a set amount and then we're out.

• 36:35Speaker 01

  He says he hung up the phone, did a little bit of thinking, a little bit of research.

• 36:39Speaker 00

  Kind of deep into the history and.

• 36:41Speaker 01

  And eventually he came to the conclusion.

• 36:43Speaker 00

  Well, let's revert back to the firing squad.

• 36:48Speaker 02

  What do you mean like firing squad, John Wayne firing squad, like line up against the wall?

• 36:51Speaker 01

  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.

• 36:58Speaker 00

  A physician will locate the heart and they'll pin a target where the heart is.

• 37:00Speaker 01

  And then there's five men with rifles and one of them has a blank, but none of them know which one it is.

• 37:05Speaker 00

  And then on the, when the order is given, they all shoot the individual.

• 37:09Speaker 01

  In the heart.

• 37:11Speaker 04

  Lawmakers in Utah have voted to bring back executions by firing squad if lethal injections are not readily available.

• 37:19Speaker 01

  Paul Ray says he was just trying to solve a problem.

• 37:22Speaker 00

  But I was completely taken off guard by the media frenzy that.

• 37:25Speaker 04

  A cruel holdover from the state's Wild West days.

• 37:28Speaker 00

  That happened. A cruel relic of old West justice.

• 37:31Speaker 04

  And will earn its international condemnation.

• 37:34Speaker 06

  The fact that Utah is adopting it now is an embarrassment. Barbaric. We shouldn't be shooting our people. This is ridiculous. This is not the time of Moses.

• 37:43Speaker 01

  Why is it that the, that do you think the firing squad itself created this response?

• 37:50Speaker 00

  Well, it's, it's brutal. You know, it's, it's certainly not the easy, give them a couple of injections and they quietly go down. You know, this is calling it for what it is.

• 38:00Speaker 01

  In fact, Paul would argue.

• 38:02Speaker 00

  If you want to look at, at something that's more humane, definitely the firing squad.

• 38:07Speaker 07

  What caught my attention was that it was so sudden, so quick, boom, boom, just like that.

• 38:13Speaker 01

  These are reporters talking about witnessing a firing squad execution in Utah.

• 38:17Speaker 05

  It was over pretty quickly. It was cleaner than I expected and it was fast.

• 38:23Speaker 00

  With the firing squad, you know, you're, you're dead within seconds of pulling the trigger. Five bullets directly to the heart, it's over. It's not the paralytic that hides it. It's, it's done.

• 38:36Speaker 05

  But, but he moved. He moved a little bit and to some degree that bothers me.

• 38:44Speaker 05

  And that seemed to carry on the last 60 to 120 seconds.

• 38:54Speaker 01

  So this is how Utah has chosen to solve the whack a mole problem.

• 38:58Speaker 00

  Yeah. And the firing squad has already been upheld by the Supreme Court.

• 39:00Speaker 05

  We have approved electrocution. We have approved death by firing squad.

• 39:07Speaker 01

  That's Justice Scalia in 2008. The Supreme Court actually approved the firing squad in 1879. And the people who were part of the firing squad are actually volunteers. Do you have a lack of volunteers or an abundance of volunteers?

• 39:21Speaker 00

  We have an abundance. I know the last death penalty, they had hundreds. Nobody's forced to do it. It's, you know, there, there are people that are willing, they kind of see as their civic duty, you know, to help carry these out.

• 39:32Speaker 01

  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.

• 39:42Speaker 00

  When we're done, let's go to my office. I'll call somebody.

• 39:44Speaker 01

  Okay.

• 39:46Speaker 01

  I'm going to wait till this thing passes us. The sound of freedom is going. That's an F-16 from Hill Air Force to the bombing range. All right. I like it. The sound of freedom. This is Kenny. We agreed not to use his last name and Ken's dad ran the firing squad for a couple of decades.

• 40:01Speaker 07

  So as you see, there's two cottonwood trees over here. Those old cottonwood trees, they'd set up and, 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.

• 40:23Speaker 01

  Ken told me that on execution days, his dad and the other shooters, they would sit down together at the kitchen table.

• 40:29Speaker 07

  And you know, it's just like a little family, family breakfast.

• 40:31Speaker 01

  And his mom.

• 40:32Speaker 07

  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 prayerful times around the house when those men were over getting ready. I know that

• 40:49Speaker 07

  I, I, it's a pretty solemn moment. I.

• 40:52Speaker 01

  What's the prayer? Is it for the person being executed, the victim? What's the prayer?

• 40:56Speaker 07

  I think you have to pray for strength, the follow through on what you have to do.

• 41:02Speaker 07

  I think that, you know, you might need a little guidance and you might need a little understanding and, and something bigger than you is out there. 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, let's do it, but let's do it humanely.

• 41:26Speaker 01

  One of the things that I found kind of striking is that Maya Foa is against the death penalty and you have the folks in Utah that are for it. But everyone seems to agree that we shouldn't fool ourselves.

• 41:39Speaker 07

  I favor the death penalty, but one thing I've never favored and some common ground between me and the abolitionists is that lethal injection is a terrible method of execution.

• 41:50Speaker 01

  That's Robert Blacker, 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.

• 41:58Speaker 07

  Not because it might cause pain, but because it certainly causes confusion. I, I attended an execution in Florida, Benny Demp's. And I also was with my father-in-law when he was in a hospice dying from an incurable and very painful cancer. And the death scene in both situations was bizarrely similar. In both cases, the, the, 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

• 42:41Speaker 07

  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, 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.

• 43:03Speaker 01

  He says he doesn't like the fact that one person gets a blank and that nobody knows who that person is.

• 43:07Speaker 07

  That to me is symptomatic of our failure once again to take responsibility for what we do. Nobody should have a blank. And if we cannot face what we're doing and acknowledge it, then we shouldn't do it.

• 43:28Speaker 01

  And we may be coming to a moment where we are about to do that, to look at this and acknowledge it. Because in 2014, in a case that was really just about lethal injection, Justice Breyer said, look, like, let's stop just talking about the details, like questions about which medicine that we use.

• 43:45Speaker 06

  The time has come for the court to again, consider a more basic question, whether the death penalty itself is constitutional.

• 43:55Speaker 01

  In other words, what he's saying is it's time to talk about not just like the mechanics of what we're doing,

• 44:04Speaker 01

  but whether we should even do it at all.

• 44:17Speaker 02

  Reporter Karen Duffin.

• 44:31Speaker 02

  All right. Matt Kielty here, back in the present day, back talking to Karen Duffin. And I was, 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?

• 44:49Speaker 04

  Yes.

• 44:50Speaker 02

  Okay.

• 44:51Speaker 04

  Yeah.

• 44:51Speaker 02

  And obviously that didn't happen.

• 44:54Speaker 04

  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 Stiker, 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, so much.

• 45:16Speaker 02

  More conservative court.

• 45:17Speaker 04

  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 and fewer death sentences.

• 45:36Speaker 02

  Oh, really?

• 45:37Speaker 04

  Yeah. Down more than 90%.

• 45:40Speaker 02

  Whoa, 90%.

• 45:41Speaker 04

  Yeah.

• 45:42Speaker 02

  Why do you think that is?

• 45:43Speaker 04

  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 nineties and into the 2000s, there was a big movement to make LWOP, 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 paroled or something. So they were willing to put people to death. But now that there's life without parole as an option, people are choosing that more often.

• 46:17Speaker 02

  And that's a relatively new thing.

• 46:19Speaker 04

  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. The 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 on 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.

• 47:02Speaker 04

  She said urban areas are more likely to be able to afford to send 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.

• 47:18Speaker 02

  Hmm.

• 47:18Speaker 04

  So kind of complicated, but there are also 23 states that have abolished it.

• 47:23Speaker 02

  Oh, wow. I had no idea it was that many.

• 47:24Speaker 04

  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 of that stuff, our ideas of how that works come from things like TV.

• 47:41Speaker 05

  Shows and movies and books where there's always, you know, a hero and a last minute reveal and all these sorts of things. So.

• 47:49Speaker 03

  So I actually talked to a guy named Damian Echols 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.

• 48:07Speaker 05

  The average person has no comprehension of how corrupt or bureaucratic the system is.

• 48:15Speaker 03

  Did you have any understanding of death row or the death penalty or opinions or ideas of what it was before you were sentenced?

• 48:25Speaker 05

  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 allowed me to understand or comprehend anything about the system that I was in.

• 48:41Speaker 03

  Did you have an opinion about it? Like?

• 48:44Speaker 05

  I didn't.

• 48:44Speaker 03

  Okay.

• 48:45Speaker 05

  No, I absolutely didn't. No.

• 48:47Speaker 03

  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.

• 48:56Speaker 05

  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.

• 49:10Speaker 03

  He said he had a good friend when he was on death row who did eventually get executed.

• 49:16Speaker 05

  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.

• 49:35Speaker 03

  Did he think that the death penalty was just given his remorse? Or did he feel more like?

• 49:42Speaker 05

  You know, he tried to drop his appeals a couple of different times because he wanted to be executed close to the end.

• 49:50Speaker 03

  Wow. What did you think?

• 49:53Speaker 05

  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 hurt 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.

• 50:34Speaker 03

  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 seventies. 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. And 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?

• 51:02Speaker 05

  I think it is, is, no, 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.

• 51:17Speaker 03

  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.

• 51:49Speaker 04

  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, who has the worst lawyer? That's a big driver of who gets the death penalty, but also incredibly geographically arbitrary. So in Texas, Texas has, I believe, 254 counties. And in the modern era from 1976, you know, more than 200 of them haven't seen anybody executed.

• 52:28Speaker 03

  Wow.

• 52:28Speaker 04

  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, arbitrariness, we've solved that problem. We certainly have not.

• 52:50Speaker 05

  But I guess, 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, it's, I don't think it's a very cut and dried, black and white thing at all.

• 53:19Speaker 02

  It's so interesting because 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.

• 53:31Speaker 03

  Yeah.

• 53:32Speaker 02

  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.

• 53:41Speaker 03

  Yeah, it got muddier.

• 53:42Speaker 02

  Like the fact that he could be sort of complicated seems just so strange.

• 53:46Speaker 03

  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 live stream. And what he said basically was, we should not do this. We shouldn't watch this.

• 54:03Speaker 05

  You do not see someone killed and then walk away unchanged. When I was in prison, I saw people stabbed to death. The very first time I saw someone stabbed to death, it broke me in a way that I would never be the same again.

• 54:17Speaker 03

  Yeah.

• 54:18Speaker 05

  You know, if it's being livestreamed, little kids were going to see that. People were going to start making memes about it. And it was going to be all over the internet. And people who never should have been exposed to that were going to be exposed to it.

• 54:30Speaker 03

  And with the, you know, stamp of approval of the federal government.

• 54:34Speaker 05

  Yes. Yep.

• 54:35Speaker 04

  I feel like this moment with the proposed public firing squad execution with the botched execution of Krista Pike in Tennessee, that suddenly there, the death penalty is top of public consciousness for a moment. Maybe it's just the press that I read, but, 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.

• 55:17Speaker 02

  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?

• 55:34Speaker 03

  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.

• 55:52Speaker 02

  So we're just currently in yet another moment where the pendulum is in the midst of a swing.

• 55:58Speaker 03

  Yeah.

• 56:01Speaker 02

  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 death sentences 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 death sentences in our history. The original More Perfect episode was reported by Karen and produced by her with Jad Abumrad, Susie Lechtenberg, Kelsey Paget, and Tobin Low. Tobin, do you want to do the rest?

• 56:38Speaker 03

  Sure. With Sorin Wheeler, Ellie Mistall, David Herman, Alex Overington, Karen Duffin, Sean Ramaswamy, Catherine Wells, Barry Finkel, Andy Mills, and Daniel Moetar. Special thanks to Ben Cohen, Mona Lynch, Austin Sert, 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 Hewlett Foundation, the Charles Evans Hughes Memorial Foundation, and the Joyce Foundation.

• 57:15Speaker 02

  I'm Matt Kielty. Radiolab will be back next week. Hi, I'm Maya and I'm from London. And here are the staff credits. Radiolab is hosted by Lulu Miller and Latif Nasser. Sorin Wheeler is our executive editor. Sarah Samback is our executive producer. Our managing editor is Pat Walters. Dylan Keefe is our director of sound design. Our staff includes Jeremy Bloom, W. Harry Fortuna, David Gable, Maria Paz Gutierrez, Matt Keelty, Mona Mordgauck, Annie McEwen, Alex Neeson, Sarah Kari, Natalia Ramirez, Joanna Strogatz, Anissa Vitsa, Ariane Whack, Molly Webster,

• 57:54Speaker 03

  and Jessica Young, with help from Maya Appleby Malamed and Laura Carpass. Our fact checkers are Nora Balblydia, Hillary Elkins, Rachel Gross, Diane Kelly, Emily Krieger, Natalie Middleton, and Sophie Sami.

• 58:12Speaker 03

  Hi, I'm Aubrey, calling from Salt Lake City, Utah. Leadership support for Radiolab's science programming is provided by the Simons Foundation and the John Templeton Foundation. Foundational support for Radiolab was provided by the Alfred P. Sloan Foundation.