This is point of inquiry for Tuesday, May 27, 2014.
Hello and welcome to Point of Inquiry. A production of the Center for Inquiry. I’m your host, Lindsay Beyerstein. And my guest today is Dahlia Lithwick, senior editor and legal correspondent for Slate, where she writes The Supreme Court dispatches and jurisprudence columns. Her legal commentary won her a national magazine award in 2013. She’s a graduate of Stanford Law School and she’s here to talk to me today about the crisis facing the death penalty in the United States on May 21st. The U.S. Supreme Court stayed the execution of Russell Bucklew of Missouri just two hours before he was scheduled to be executed for the murder of Michael Sanders. Backlists suffers from a condition called cavernous hemangioma, which means that his brain is a swamp of blood vessel based tumors where drugs could pool or leak during a lethal injection. Bucklers lawyers argued that Missouri secret lethal execution protocol risks causing their client an agonizing death. They cited the example of Clayton Lockett, an Oklahoma inmate who took 43 minutes to die in April during a botched execution. Lockett’s death was so horrific that the state of Oklahoma suspended executions pending an investigation. Almost all executions in the U.S. are performed by lethal injection. But America’s go to lethal injection drug cocktail is rapidly becoming obsolete because a key component is no longer readily available on the market. States have been reduced to scrounging drugs from unregulated bulk pharmacies and experimenting with secret and untested mixtures of medications. A practice that may violate the constitutional prohibition against cruel and unusual punishment. Dahlia, welcome to the program. So last night, Russell Bucklew got a last minute stay of execution in Missouri. What what’s going to happen now?
Well, not not a whole lot. The court, more or less just kicked it back to the 8th Circuit Court of Appeals. It’s not even completely clear what the court is meant to do with it, except I think they have to look more carefully at the claims. And so, like, you know, it looks like Missouri saying this all may take a while, but it it it shows, I think, that the Supreme Court is not going to be able to get away with staying out of this for a whole lot longer. So even though that the order was very ambiguous, it was not signed. There were no dissenters. So we don’t really know what the court is thinking. What we do know is the court was sufficiently worried about this one that they told the court to take another look.
Can you explain a little bit about why the Supreme Court might be worried about this particular case?
Well, he said the court, if you look at even the voting in the last few months, as you know, each of these death penalty cases and there are a lot of them go up to the Supreme Court. It’s gone from, you know, three justices who want to take a look to four justices who want to take a look at five justices. So I think, you know, a lot of this can be tracked back to the Clayton Lockett disaster in Oklahoma a few weeks back. I think that case, while it didn’t signify all that many constitutional problems. I think what it said to the court was there is a really systemic problem. People are suffering to the point of what you could I think, and what the court would call torture in the Lockett execution. And the court needs to take a look systemically at what’s going on. So I think that really, if I had to put it in the most simple terms, I would say the court is terrified that another Oklahoma could happen for all sorts of reasons that were at issue in Oklahoma. And it will be on them for not stopping here.
April 30th column on the lock at the back all began Tuesday night. The state of Oklahoma accidentally killed a man in the middle of trying to execute him. Can you expand on us on that and tell us what happened there?
Right. Well, this was this was almost a disaster waiting to happen. And there were a whole bunch of pieces of it that had been going on for a long time. And and folks just didn’t know. I just want to stipulate Clayton Lockett was a horrible person. He committed a terrible murder. He shot a 19 year old. He watched as she was buried alive. And this was not not a case where there were claims of his factual innocence or that there was prosecutorial misconduct. In other words, there’s a lot of things wrong with the death penalty system. But the thing that was wrong here was not that Clayton Lockett was innocent. We know he did it. So this becomes a huge, huge national story for two reasons. And one of the reasons why what went wrong in Oklahoma was that folks had not noticed that since around 2011, states had not been able to get their hands on the three drugs that are used in the so-called cocktail, the three drug protocol that’s been used in all lethal injection states. And it’s very, very complicated why they can’t get their hands on those drugs. A lot of. Companies in the U.S. simply stop making them. European companies that were supplying Americans with the drugs said, you know what? We’re we’re facing way too much pressure not to supply you with the drug. And really, jurisdictions that we’re using lethal injections, it’s very, very standardized. Three drug cocktail simply found themselves without drugs. And so they started to turn to what’s called compounding pharmacies. And these are unregulated pharmacies that make up unregulated batches one by one. And all this was being done in secrecy, huge secrecy. And so different states were saying not only are we going to get secret drugs from secret sources that are totally unregulated, we’re not going to let anyone in the state scrutinize what we’re doing, where we’re getting them in. Some states like Georgia went so far as to pass laws saying we’re going to keep all this secret even from the courts themselves. And that was one of the things that Oklahoma was doing, was they just said we’re getting some drugs. We’ve never tried this protocol before and we’re not telling you where they’re coming from. And that the lawyers for the two, there were two men set to be executed that day. And lawyers said this is cruel and unusual in violation of the Eighth Amendment to simply keep secret drugs and use combinations of drugs that have, in effect, never been tried together. You’re teaching what you’re doing is really like a science lab. You know, with a high school science project, you can’t execute people this way.
So, in effect, nobody knows how these whether these drugs will work.
Right. Well, these are combinations that haven’t been tried. The protocol in Oklahoma had never been tried in Oklahoma. You know, this is sort of a whisper campaign from one capital state to another saying, hey, you try this, you know, hey, try this. But whatever was fairly standardized before 2011 is not standardized anymore. And states are quite literally experimenting for the first time on death row prisoners. The other thing that’s probably important to flag. The other thing that happened in Oklahoma is that the Supreme Court, the state Supreme Court stayed the execution, said, you know what, this looks just as though there are significant constitutional problems. We want to take a look at it to get back to a lower court. And not only that, the governor say, you know what? That’s not constitutional. You’re out of it. I’m going to reinstate the execution. But articles of impeachment were actually drafted by a state legislator who was going to try to defeat the justices who had voted to stay. So the two things in combination were so important. One was that the court had been really just pushed aside by a political process. And the other was that this was a legitimate claim that these things can’t be done in secret. And as you know, the fallout from all this was that Clayton Lockett did suffer horribly. It took hours to execute him. The whole thing was so awful that they had to pull a curtain so that nobody could see him die in pain. And so I think it became kind of a big I told you so both for the principle that you cannot get secret drugs and use them secretly.
And also that when a state Supreme Court says, stop, you should stop.
Is it even legal for a governor to say, I’m just not going to pay attention to what the Supreme Court of my state just told me to do?
I think that it’s a real question of, you know, comedy between the branches.
I think certainly I read a lot of folks that said that the governor can’t simply, you know, override or counterman counterman the state Supreme Court, the Oklahoma system is a little bit tricky because they have a funny state appellate court system. And so there was some question unique to Oklahoma about whether which of two different courts of appeals should have been hearing the case. But I think either way, when you start to attack personally, the jurists in a case saying, you know, this is no longer a court or we’re going to impeach these these justices.
I think it starts to look as though this whole notion of separation of powers is really called into question. And for me, as someone who thinks a lot about the role of courts in either signing off on or delaying an execution, the idea that courts could just be erased by the political branches is almost the most terrifying part of the case.
So did the Supreme Court of the state Supreme Court reverse itself because it was afraid of being impeached by the legislative branch?
Well, they certainly didn’t say that. They simply, you know, issued the stay one day and then very, very shortly after they said what, you know, the execution can proceed. And nowhere in the order did it say we don’t want to be impeached. But we do know and I know from talking to one of the attorneys for one of the two men in the case, that is a very, very serious thing when the state tries to impeach a state Supreme Court justices. But it is not something that is taken lightly. Justices have almost no tools with which to defend themselves. And that in the face of that kind of pressure, it’s entirely possible that those five justices came and it’s not. The first time this has happened, we’ve seen around the country state Supreme Court justices who are attacked by big, big money and special interests saying we don’t like your ruling in a case that’s pretty shocking, where they all death penalty cases or where they other issues with the Supreme Court with being pressured in the state.
No, we’ve seen it. We’ve seen it several places around the country. And many of them have been very successful. Some of them have been justices who ruled in favor of same sex marriage, justices who’ve ruled on other controversial issues. But I think it’s the really important thing to understand here is that in states that elect their judicial branch, those judges are always going to be vulnerable, I would say uniquely vulnerable to political efforts to unseat them in ways that, you know, lifetime tenure doesn’t afford. And the other thing that’s really worth pointing out is that it’s very, very cheap to unseat a judge or a justice in a state supreme court. It’s not all that expensive to get into a retention election and to air a whole bunch of ads that say Judge X is for gay marriage. We need to take her out. We’ve seen it happen around the country. And those are not expensive campaigns. So whether you are for or against electing judges in state Supreme Court judges in specifics, it’s important to realize that you can really change the composition of the state Supreme Court very, very drastically with a couple of attack ads. And also that justices are are really bound by canons of ethics that don’t allow them to tap back. So the kinds of things you can say about a political figure, she can answer those attack ads. Today, Supreme Court justices cannot.
And so often what we see is this pattern of them being attacked and with impeachment or otherwise really, you know, having their very jobs violated and they have to sit there and take it.
Are they allowed to campaign when they come up for reelection and talk about their records?
Well, the Supreme Court the U.S. Supreme Court has said that they are allowed to campaign, but it’s a very, very, very narrow space that they’re trying to thread.
They’re allowed to say certain things. They’re not allowed to say other things. Almost no judges feel completely clear on what it is they are allowed to say and not say during an election campaign, but whether they campaign or they don’t.
The thing that happens is that voters feel afterwards as though the whole system was compromised.
Let’s talk a little bit more about this idea of cruel and unusual punishment and what the Supreme Court has said about it with regard to the death penalty in the past and how it might how that principle might affect what it says about the death penalty in the future.
Well, it’s very, very ambiguous.
You know, what we do know is that in 2008, the Supreme Court put a big, big case that was called Base vs. Reath, and that was the case that had to do with precisely the three judge protocol that was in effect pretty much until 2011. So for a brief period of time, after the court said in 2007, you know what, we’re going to look at this case at all.
Executions were actually stayed for a few months. Well, because all the states had the same protocol while the Supreme Court looked at it in what Chief Justice John Roberts wrote for at least himself, Anthony Kennedy, Samuel Alito said, is that is that, you know, cruel, unusual punishment is an awfully slippy definition. And what he said was simply because an execution method may result in pain, either by accident or an inescapable consequence of death, doesn’t establish the objectively intolerable risk of harm that qualifies as cruel and unusual. So, in other words, what he was saying was that just because there’s a possibility of something going horribly wrong or even something does go horribly wrong, that doesn’t rise to the Eighth Amendment level of cruel and unusual.
So the court was very unclear. What it basically said was, we’re going to sign off on this three judge, three drug protocol.
It wasn’t clear what would have to go wrong in order to violate the Eighth Amendment. Although it’s interesting that Justice Ruth Bader Ginsburg, writing in dissent in that case, pretty much predicted every single thing that could go wrong. And, in fact, did go wrong in the Oklahoma botched execution last month.
What does a substantial risk of serious harm even mean for someone that we know is never going to walk out of the death chamber yet?
It’s such a paradox. And it’s under underlying this whole conversation is this paradox, which is we’re trying to kill someone and yet we’re trying to not kill them in a bad way.
And, you know, we want it to be neat and we wanted them to not suffer. There’s always been claims that some of the drugs in the protocol actually mask suffering. So it’s not that they’re not suffering. We just don’t see it because they’re paralyzed by a paralytic agent. So I think under your question, there is this deeper question, which is. Are we doing this in a sort of clean way for these death penalty defendants? Are we doing it for in a clean way for the witnesses and those of us who have to watch? And is the reason that we’ve sanitized it and made it look like it’s being done, you know, with syringes and doctors and people in white coats? Is that to protect the man who’s going to lie on the table and die one way or another? Or is that to protect our sensibilities? So we feel that we’ve evolved from firing squads or guillotines. And I think that’s a really hard question to answer. I think that tension is really built into the conversation around the death penalty. What does it mean to suffer too much? Is it really better to use lethal injection if we, in fact know that firing squads are a lot less painful?
The court didn’t seem like was very sympathetic to the idea of physical pain being cruel and unusual. What if they said in the past about the idea of mental agony? Because I think about how horrifying it would be to know that you’re going to be executed and you’re going to be executed with something that has never been tested and nobody has any idea what it might do to you.
Well, that’s one of the claims that’s being raised in these secrecy challenges that it adds this other level of just terrific, terrific psychological torture, that it’s not as though this is a standard protocol you’re about to be, in effect, experimented on. And that’s its own form of cruelty. But I think, you know, what the court has said and again, it’s really even if you try to untap the words cruel and unusual, it’s unclear what even that mean. He did, as usual, mean that the one drug cocktail that they now use instant some jurisdiction is unconstitutional because it’s not often used. It seems to work better than the three drugs, but it is certainly unusual. So I think one of the problems with the Eighth Amendment generally is that it’s seen through this prism of evolving standards of decency. In other words, it’s a moving target. And because the court allows it to be a moving target, it’s always kind of tacking back and forth between different values, depending on what we value at a given moment. And one of the paradoxes, I think, of lethal injection is that while it satisfies certain values, or at least it did until it became impossible to procure drugs, it satisfies certain values of continuity and predictability and perhaps famousness. It actually violates ethical values.
As I said, you know, the data I looked at shows that, believe it or not, the guillotine. Believe it or not, firing squads were probably more humane.
When push comes to shove, Wyoming is drawing up a firing squad execution bill right now in Utah is looking at it, too. Would that be considered cruel and unusual today? Do you think, by the Supreme Court?
I mean, it’s certainly something that all but very, very few jurisdictions, they believe, is only one jurisdiction that still allows firing squads, although Utah is not the only state that’s now reconsidering it. So I think, again, it goes to this question of what is unusual. And I think it also goes to the deeper question that we have convinced ourselves that if we have more and more medicalize procedures, we’re getting less and less cruel and unusual.
And so it’s hard in a way to imagine going backward simply because the more it looks like doctors are just giving somebody some form of routine surgery, the better it is. I think sort of like logically, both for the the person who’s being executed and those watching out for the idea of going backward to forms that we’ve abandoned, like the electric chair firing squads. Canings, I think, sticks in the craw a little bit. And there is this question of whether we’re getting to this almost vanishing point where we’ve gotten so close to having executions that just look like. Right. Right. Next to root canal. In terms of how they are perceived, if you can go backwards to something that looks much more brutal. And I think that people who support the idea of abolishing the death penalty are actually hopeful that since we can’t really take lethal injection much further, you know, maybe we can go to this one drug cocktail. Maybe we can. You know, there are things we can do that are closer to euthanasia. But the truth is, there’s not much more we can do to sanitize it. And if we get to that place where we simply can’t make it any cleaner, maybe it just goes away.
I have to say that the data shows that Americans are not ready to abolish the death penalty. They strongly, strongly support it in a lot of jurisdictions. So it’s not clear how that tension between a clean execution and one that is not at all painful eventually plays out.
There’s also this sort of strange tension between the fact that they want to make these executions really technical and medical, and yet neither doctors or nurses are professionally allowed. By their governing bodies to assist in these executions, is that courting disaster as less and less qualified people are asked to carry out more and more medically complicated things?
It is. It clearly is.
And in some of the the real fallout after the Oklahoma execution was you can’t really have physicians involved in this process at the very, very 11th hour, a.m. some some of these things that you’re doing, including in this case, inserting an I.V. in Clayton Lockett groin, cannot be conducted by someone who simply works for the corrections department and has no background. So it has been a problem that, you know, medical associations and other associations have been saying that, you know, the Hippocratic Oath simply precludes medical professionals from being involved in this. And that obviously is going to lead to more errors and more problems. So is I think I wrote a piece about this two weeks ago in Slate. I mean, that is another tension in this case. In these cases where the more groups oppose the death penalty, whether it’s a refusal to provide drugs or whether its refusal to allow certain professionals to participate, the more the possibility slightly, slightly picks up that these executions are going to become gruesome.
So you have this built in tension between, again, making executions cleaner and cleaner and cleaner and doing away with executions altogether.
What does the other capital punishment method that that one state allows? There’s one state that currently has the firing squad on the books.
I think that that’s a bit I think that every other state and jurisdiction that has capital punishment does lethal injection. Although, as I said, I think that that now varies very, very widely from state to state. So we used to have a protocol that was believed or not born in Oklahoma, the three drug protocol, and everybody did it. And now there’s huge variation is between the state, not just with respect to which drugs are used, but the quantities that they’re used in. And so I think that what we’re seeing now, it’s almost like a Wild West situation where there’s almost no regulation, there’s tremendous secrecy. And so that it looks a lot like experiments are being done right there on the gurney.
Missouri only has the one method of execution. Right. So if Russell back, if they do that, they have the hearing and they they conclude that, yes, something horrible would happen to him over and above being executed because of the tumors that exist in his brain. Yes. That Tom cavernous hemangioma and his lawyers are saying that it might cause some kind of horrible debacle if they tried to execute him with the drug protocol. What what would be Missouri’s options then, if that was what the big upcoming hearing found?
Well, I think they can always do what other states are doing, which is reinstating different forms of execution. And these are all pretty much, you know, can happen at the discretion of the state and the Department of Corrections. So states you change their protocols all the time. And I think it’s certainly possible. I don’t know if, you know, the one drug protocol from Texas would then work better, but I don’t think it’s it’s an insurmountable barrier to say, okay, we’re just going to go to, you know, the one drug or we’ll go to something else. But I think it does become problematic. And certainly for witnesses who, you know, we used to execute people at high noon in the village square, you know, how it used to be a big public spectacle. And that was kind of the point. That was when we really thought there was a huge deterrent value in capital punishment. I think, as you know, another sort of way to think about trying to medicalize it is we’ve pushed it to midnight and we’ve pushed it onto a gurney in a death chamber and there’s a curtain there. So I think in a way, since the scope has narrowed so much and so much is done to protect witnesses from seeing anything discomforting, it really does, I think, raise serious questions about whether states would be able to tolerate going back to electric chairs where people literally, you know, forgive me for saying it, but would, you know, smoke and catch fire?
You know, systems that simply didn’t work very well.
The idea that states can adopt those, even though I know there’s a lot of talk about it. I don’t know whether we’re ready for that. It’s an interesting question. And I think in a moment where Americans are having more and more and more doubts about the big systemic problems with the death penalty, in fact, you know, I think that Americans are much more worried not about how we execute people, but about these sort of Innocence Project questions of, you know, these, John. Questions about are we executing the wrong guy? You know, has there been baked in bias in the system? You know, does he have a defense attorney who slept through the trial? I think those questions actually have much more salient with the public right now than some of these very, very narrow questions about which drug is being injected at what time. And I think as doubts about the death penalty and, you know, keep rising, this debate about how we kill people. You know, this this month, we’re really concerned about it because Oklahoma with so horrifying. But the real doubts about the death penalty, I think, are about the racial disparity, about the income disparity, about the real life probability that there are a lot of people sitting on death row right now or factually innocent.
I think that’s the stuff that people really are focused on and worried about.
I think people are also sort of excited or interested about the narrow questions because it sort of seems almost like the death penalty might get outlawed on a technicality. It turns out that it’s impossible to humanely execute people with the drugs that we have. I mean, is that is that a possible scenario? Could the Supreme Court just say we can’t do executions anymore because we can’t reliably carry them out?
Well, I think, you know that the Supreme Court did have a period in the 70s where they stopped executing people not because of how we were doing it. But real doubts about the system and the system talked around and ostensively corrected some of the problems and we reinstated it. The Supreme Court looked at this precise question, you know, in the base case in 2008 and said, we don’t think that there’s a problem with how we’re doing this that rises to a constitutional level. So I think really the question now is, with the collapse of that three drugs, can we find another system that reliably meets this criteria? You know that Justice Roberts and the majority justices set out in 2008, which, you know, doesn’t rise to the Eighth Amendment violation. And I think probably, you know, there are one drug protocols. I mean, you know, we’re hearing a lot out about states where they use one drug that works pretty well. So I think that the next go around is going to be finding a one drug system that works pretty well. Does it work as well as the three drug cocktail that the court approved in 2008? Probably it will. And then we’ll just have a narrower and narrower bandwidth.
And we’ll keep revisiting this question, I think, for a long time. What happened to the second guy who was supposed to be executed alongside Lockett? Has his Oklahoma essentially stayed his execution pending an investigation or something like that?
Yes, Oklahoma.
They immediately ordered a big, big statewide investigation into what went on with the Clayton Lockett execution and the other man who was scheduled to be executed very, very shortly after. We’ve given at least a six months day while this all gets sorted out. So that execution, you know, we know will go at least six months. And the other day that just happened. If we’re talking about the three things that have happened. So there’s one in Oklahoma, one that was. Was that just happened in Missouri and then another state last week in Texas where somebody made, I think, a pretty solid factual claim that his mental disability rose to the level of mental retardation, you know, by the court’s definition of that. And so that’s a lot of scales in a very, very compressed amount of time. And as I said, it suggests that nobody wants to be the next guy that signed off on an Oklahoma when you were ready.
But the Troy Davis case in 2009, you wrote, whatever else may come to me in the execution of Troy Davis by the state of Georgia can stand for the proposition the death penalty in America is finally dying. Do you think that that process is underway still?
Well, I think I’ve stopped writing pieces that say this is the last execution because I think that public interest soars around these cases.
And you really do get, I think, a very legitimate outcry that the system is broken and then we find, you know, the next thing to be interested in. But certainly, I think since Troy Davis, you can see that the trend is that more and more Americans have doubts about the capital system. More and more Americans feel like, do we really want to be in the company of the Sudan and Saudi Arabia, as you know, places that kill people? I think that there’s just a general sense in the country that if we are going to do this, we should be making. Ensure that the quote, right, people are being executed and we’re less and less confident that we’re doing that. So it’s not just any one, you know, capital defendant who has, you know, colorable claims that they didn’t do it or there was misconduct or as was the case in Texas last week, that the prosecution simply failed to turn it over evidence for decades that could have gotten someone off death row. But I think the more you hear the segregation story after story after story suggestion that suggesting that we’re just not getting the right guy is every time an innocent people are actually being executed. I do think that there is a decline. And I think if you look at the demographics themselves, support for the death penalty tends to cluster around older Americans in certain regions. But I think as millennials grow up and as people of the generation that are quite concerned about racial injustice and economic injustice come up, we’re going to see, I think, a growing sense that even if we want to be a country that executes the worst of the worst, we do not have a system guaranteeing that the worst of the worst are being executed if there’s an endgame for the death penalty in the United States.
Do you think it’s going to come state by state?
I think that is how it’s going to come. I think, you know, if you look at the state just in the last few years who have either declared a moratorium or instituted huge examinations, it is, I think, happening at the state level where states are saying, you know, the way we’re doing it doesn’t work and it’s not clear we can fix it. There are still states, you know, Texas among them, that are very, very, very enthusiastic supporters of the death penalty. So I think in a strange way, it may track what we’re seeing with the gay marriage fight, which is a state sort of sorting on one or other side of the aisle without the Supreme Court interceding in a deep way. That said, you know, the fact that the Supreme Court just stayed an execution tells me that the Supreme Court might be getting to the point where it thinks that a failure to step in is going to allow more really, really egregious, botched executions like the one we just saw. And I don’t know that the Supreme Court has a stomach for a lot more of those.
Dahlia, thank you so much for joining me today. It’s been a fascinating interview.
Oh, thank you so much for having me. It was a pleasure.
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