Aug 8, 2019

More Perfect: Cruel and Unusual

On the inaugural episode of More Perfect, we explore three little words embedded in the 8th Amendment of the U.S. Constitution: “cruel and unusual.” America has long wrestled with this concept in the context of our strongest punishment, the death penalty. A majority of “we the people” (61 percent, to be exact) are in favor of having it, but inside the Supreme Court, opinions have evolved over time in surprising ways.

And outside of the court, the debate drove one woman in the UK to take on the U.S. death penalty system from Europe. It also caused states to resuscitate old methods used for executing prisoners on death row. And perhaps more than anything, it forced a conversation on what constitutes cruel and unusual punishment.

Special thanks to Claire Phillips, Nina Perry, Stephanie Jenkins, Ralph Dellapiana, Byrd Pinkerton, Elisabeth Semel, Christina Spaulding, and The Marshall Project

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KAREN DUFFIN: Can we watch teletubbies for a second?

 

JAD ABUMRAD: (laughter)

 

KAREN: Although, that’s also horrifying.

 

JAD: That is true.

 

[TELETUBBIES TAPE]

 

JAD: Hey, I’m Jad Abumrad. And this is More Perfect, a mini series that we’re just getting going about some of the ideas in 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 KD Duffin. And it begins with a mystery.

 

KAREN: Right

 

JAD: Uhhhh….alright, we’re starting with Maya, right?

 

KAREN: With Maya, yeah.

 

MAYA FOA: Maya Foa, I’m the director of the death penalty team at Reprieve

 

KAREN: Ok, so Maya Foya 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.

 

JAD: Post college flail?

 

KAREN: Sort of.

 

MAYA FOA: An existential crisis-- and I wrote to a couple of organizations and said please can I be useful to you?

 

KAREN: She ends up volunteering a place called Reprieve

 

MAYA FOA: A legal organization that did death penalty cases.

 

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

 

KAREN: 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.

 

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

 

KAREN: So anyway, she’s at Reprieve one night. This was 2010.

 

MAYA FOA: I sat in the office--

 

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

 

MAYA FOA: Look… we’ve got an execution tonight…

KAREN: There’s an execution in Arizona tonight.

 

CLIP, NEWS: Jeffrey Landrigan is set to be put to death for killing Chester Dreyer… Landrigan was found guilty of strangling and stabbing the man in 1989.

 

KAREN: So Clive says, there’s an execution tonight. And we just found out that the lethal injection drugs they’re going to use--

 

MAYA FOA: They came from a pharmacy in England

 

KAREN: But we don’t know which pharmacy because Arizona refuses to release the name.

 

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

 

KAREN: And she raises her hand and she is like, I have 30 minutes, you know…

 

MAYA FOA: Yeah, sure, I’ve got half an hour… ya I didn’t know what I was starting when I started it.

 

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

 

KAREN: 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.

 

JAD: Did they have reason to believe that they weren’t FDA approved?

 

KAREN: It was kind of a Hail Mary.

 

JAD: Ah.

 

MAYA FOA: 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 into the US.

 

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

 

MAYA FOA: I was sort of… I don’t think I knew the purpose of all the research I was doing, but I was doing it very quickly because of course they had an execution that night--

 

CLIP, NEWS: Landrigan is running out of time and options.

 

MAYA FOA: and it was…I was in the UK so it was evening--

 

KAREN: Which is morning, Arizona time…

 

MAYA FOA: So we had just a number of hours

 

KAREN: She’s like frantically searching through all these global medical regulations…  and you know, she can’t really figure out the name of the company is.

 

MAYA FOA: Because there was no way to know at that point.

 

KAREN: But ultimately she does figure out that there were no UK companies authorized to ship this drug to the US.

 

MAYA FOA: there was no, effectively no FDA approved supplier of the stuff.

 

KAREN: So whatever this mystery pharmacy was, probably wasn’t FDA approved.

 

MAYA FOA: And I remember you know I emailed that over… I think we had the time to enter an affidavit from me or from Clive.

 

KAREN: They write up a quick affidavit. They send it back to the States.

 

MAYA FOA: And the execution that night was stayed.

 

KAREN: Like, halted.

 

MAYA FOA: When I went to sleep it had been stayed and I just thought, OK great. You know, we’ve got a bit of time.

 

KAREN: The next morning…

 

MAYA FOA: I woke up, I was couchsurfing, I was in someone’s-- and I turned on World Service--

 

CLIP, NEWS: BBC…  

 

MAYA FOA: …And they announced that…

 

CLIP, NEWS: Jeffrey Landrigan was executed at 22:26 hours.

 

MAYA FOA: Um, yeah.

 

CLIP, NEWS: His final meal was a piece of steak. His last words were, “Well, I’d like to say thank you to my family. And Boomer Sooner.”

 

KAREN: It turned out while Maya was asleep...

 

CLIP, NEWS: The state appealed all the way to the Supreme Court. And late yesterday the justices, by a 5 to 4 vote, lifted the stay of execution, allowing Landrigan to be put to death last night.

 

CLIP, NEWS: The stay was put in place due to concern over lethal injection drugs. One of those drugs obtained from Britain was not FDA approved, but the US Supreme Court did rule that there was no reason to believe that the drug wasn’t safe so--

 

MAYA FOA: You know, talk about a rude awakening in the literal sense.

 

JAD: 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.

 

[OYEZ theme music]

 

JAD: All right, so back to Karen.

 

KAREN: So we were in London with Maya, who just learned that Jeffrey Landrigan had been executed.

 

JAD: Mhm

 

KAREN: But to understand what she does next, let me just give you a little bit of context.

 

[COLBERT REPORT THEME SONG]

 

KAREN: In the fall of 2010, when Jeffrey Landrigan was executed, the drug that they’d used,

 

CLIP, COLBERT: The lethal drug sodium thiopental--

 

KAREN: Was suddenly in really short supply.

 

CLIP, COLBERT: There was a nationwide shortage of--

 

KAREN: 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?’

 

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

 

KAREN: And there is actually one great email exchange, between the California Department of corrections, they send Arizona this thank you email--

 

CLIP, COLBERT: Writing and I quote "You guys in Arizona are life savers.”

KAREN: I’ll buy you a beer next time I see you.

 

JAD: You’re a lifesaver? C’mon.

 

KAREN: Yeah. So when Jeffrey Landrigan was set to be executed, Arizona is out of the drug. And this is how they end up at this mystery drug company in London.

 

[MUSIC IN]

 

KAREN: So after the execution, Maya is doing research all this research. She’s calling pharma companies,

 

MAYA FOA: Plowing through these documents,

 

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

 

MAYA FOA: Georgia,

 

KAREN: South Carolina, Kentucky,

 

MAYA FOA: In California, and various other places.

 

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

 

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

 

KAREN: So what happens is that, anyone involved in an execution, your name is kept confidential. And states have started keep companies’ names confidential too.

 

JAD: Oh I see.

 

KAREN: So next she starts calling suppliers and distributors, kinda trying to trace like how did this drug get to that company. Thinking that maybe that’ll lead her to it.

 

MAYA FOA: 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 it, and then they were sent to this company in England.

 

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

 

MAYA FOA: I think there was lots of material coming out at that time, I remember California and the ACLU got a batch of documents and--

 

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

 

MAYA FOA: I just… I just remember getting the court documents and I was working with this very very slow internet connection--

 

KAREN: She was actually in Malawi at the time.

 

MAYA FOA: Just sort of you know fervently, you know, willing the computer to download the documents, so I could start looking through them, and figuring out this stuff. And those were the documents that had the name of the middle man.

 

JAD: What was it?

 

MAYA FOA: Dream Pharma.

 

JAD: Dream Pharma.

 

KAREN: Dream Pharma.

 

MAYA FOA: Dream Pharma.

 

KAREN: Yeah.

 

JAD: Huh.

 

KAREN: Yeah.

 

JAD: Ok.

 

MAYA FOA: Yeah.

 

KAREN: So she’s in Malawi so she rings up her colleague and says can you go and look at this place, it’s in West London,

 

SUBWAY AMBI: “North Acton” stop / Tube…

 

KAREN: And it’s this residential area but also with warehouses, kind of middle class.

MAYA FOA: 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.

 

NINA PERRY: …Uh I’m going to try to go and knock on the door of the Elgon Driving Academy…

 

KAREN: This is Nina Perry, she’s a freelance producer in London.

 

NINA PERRY: It doesn’t look too good there’s a--

 

KAREN: It’s just a tiny little storefront.

 

NINA PERRY: I can’t see any evidence of driving.

 

MAYA FOA: And if you walk in--

NINA PERRY: Hello.

 

KAREN: If you walk in, and in the front it’s just this reception area, but in the back…

 

NINA PERRY: Hi, I’m looking for Dream Pharma… is that you?

 

MEHDI ALAVI: That’s me.

 

NINA PERRY: Oh hi, I’m recording for….

 

KAREN: There’s a guy sitting at a desk... his name’s 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.

 

MAYA FOA: It’s a one man operation. Operating out of the back of a driving school.

 

JAD: One guy?

 

KAREN: One guy.

 

MAYA FOA: And I thought, well this can’t be true!

 

NINA PERRY: I’m interested in speaking with you about the injections for, that you supplied to the states.

 

MEHDI ALAVI: From the get-go I said I have no comment, and I still have no comments.

 

NINA PERRY: Oh. What was it like when Reprieve came to find you?

 

MEHDI ALAVI: You can ask them yourself…

 

NINA PERRY: What was it like for you?

 

MEHDI ALAVI: Ask them for yourself.

 

NINA PERRY: OK. Are you still supplying the states with…

 

MEHDI ALAVI: No

 

NINA PERRY: No

 

MEHDI ALAVI: It’s illegal…

 

NINA PERRY: Oh right. Did you-- were you aware of that?

 

MEHDI ALAVI: It wasn’t illegal at that point.

 

NINA PERRY: Oh right, so then it became illegal...

 

MEHDI ALAVI: That is correct.

 

NINA PERRY: Oh. Would you mind me asking how you got involved in the first place? How they came to find you or you to find them?

 

MEHDI ALAVI: They found me…

 

NINA PERRY: They found you. Wow. Were you surprised when they got in contact with you?

 

MEHDI ALAVI: Surprised? I don’t know, at that point

 

NINA PERRY: No, but I guess it unraveled somewhat to--

 

MEHDI ALAVI: I’ve got no further comments, my dear.

 

NINA PERRY: Thank you very much for

 

MEHDI ALAVI: Pleasure.

 

NINA PERRY: ..doing that. And thank you very much for bring me to Acton, because I’ve very much enjoyed walking around Acton and meeting people around here, so.

 

MEHDI ALAVI: Ok.

 

NINA PERRY: Yeah. And what do you, what do you sell now?

 

MEHDI ALAVI: It’s irrelevant to your case.

 

NINA PERRY: Well I’m just quite interested, as a citizen of London.

MEHDI ALAVI: It’s irrelevant to you, you’re not in the business, it’s irrelevant to you OK?

NINA PERRY: I see, OK, well thank you very much for your time.

 

MEHDI ALAVI: Pleasure.

 

NINA PERRY: And What was your name again please?

 

MEHDI ALAVI: You know my name. If not, find out

 

NINA PERRY: Ok, thank you very much.

 

MEHDI ALAVI: Pleasure.

 

NINA PERRY: Bye bye. Do you actually do driving lessons?

 

MEHDI ALAVI: It’s irrelevant to you.

 

NINA PERRY: You don’t do driving lessons.

[street noise duck out]

 

KAREN: 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.

 

MAYA FOA: We have a law that prohibits exports of products for the facilitation of capital punishment or torture. It’s called the torture regulation.

 

CLIP, NEWS: 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.

 

MAYA FOA: When they realized that the sole purpose of the exports of this drug was for executions, they put an export control in place.

 

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

 

JAD: So the states were just out of luck?

 

KAREN: Well, I mean 60 percent of Americans support the death penalty, so they’re not going to give this up without a fight. And so

 

[MUSIC IN]

 

KAREN: Over the next few years you have like this arms race. Missouri says, we’re gonna find the drug in Germany. So, Maya goes to Germany. And then she hears that a company called Hospira is about to make the drug in

 

[MUSIC IN]

 

MAYA FOA: Italy. And so I spent a bit of time there. The Italian government really didn’t want drugs made in the Seat of the Pope to be used for executions.

 

CLIP, NEWS: 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

 

MAYA FOA: And then..

 

KAREN: Denmark. A bunch of states. You have Florida, Ohio, Alabama, 11 other states. They all decide they’re going to get their drug

 

MAYA FOA: From this company called Lundbeck.

 

KAREN: So Maya calls them up.

 

MAYA FOA: I remember my first call with them

 

KAREN: She was like, um, did you know your drug is being used in executions? And they were like, what

 

ANDERS SCHROLL: It certainly came as a huge surprise for us.

 

KAREN: This is Anders Schroll, he’s Vice President for Communications at Lundbeck.

 

ANDERS SCHROLL: 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.

 

KAREN: And Maya says that she heard this same thing all over the world. Even when states like Nebraska and South Dakota go to India to get their drug.

 

MAYA FOA: 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?’

 

KAREN: Like if you’re going to kill someone, just kill them. Why are you using something that saves lives to do it? And actually there is a really interesting story about why we do it that way.

 

[OYEZ THEME MUSIC]

 

JAD: That’s coming up on More Perfect.

 

[ADVERTISEMENT]

 

JAD: I’m Jad Abumrad, this is More Perfect, a miniseries about some of the ideas and cases that are flowing through the Supreme Court. Back to our story from reporter Karen Duffin.

 

KAREN: So we left off with Maya in India and they’re wondering, why do you guys use drugs to kill people.

 

MAYA FOA: ‘Why? Why would they use medicines?’

 

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

 

KAREN: Well the answer to that goes back to a guy named Bill Wiseman.

 

BILL WISEMAN: It’s a terrible thing to have one’s reputation be based on coming up with a new way to kill people.

 

CLIP, SCOTT THOMPSON, KOTV: Bill Wiseman was a rising star back then, he loved politics

 

KAREN: Wiseman 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.

 

JAD: So what is, what’s Bill’s story?

 

KAREN: 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 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 the Oklahoma state legislature in 1974. And he’s opposed to the death penalty. And luckily for him this had just happened.

 

CLIP, ARCHIVE: The Supreme Court declared the Death Penalty unconstitutional today and spared the lives of 600 men in death-row cells across the country

 

KAREN: In 1972 the Supreme Court actually abolished the death penalty. Because they said it was being applied unfairly or haphazardly.

 

CLIP, ARCHIVE: In a way that could only be called freakish.

 

KAREN: So Bill Wiseman is in the Oklahoma legislature, and he’s like great. This is not a problem I’ll ever have to worry about. The problem is the public is furious about this decision. Support goes from 50 to 63 percent in just two years.

 

CLIP, REPORTER: Do you think the death penalty should be reinstituted?

 

CLIP, MAN: Yes I think so

 

CLIP, WOMAN: Absolutely, I’m very much in favor.

 

CLIP, MAN: Highly in favor of it. It would get some law in order into the country.

 

KAREN: There’s people writing furious op-eds--

 

CLIP, MAN: I don’t think they should’ve taken it away in the first place.

 

KAREN: 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, alright. If you can administer the death penalty fairly and humanely,  you can have it back. So 1972 the death penalty is abolished, 1976 it’s reinstated. Bill Wiseman gets elected smack dab in the middle of this. So you know in 1976 suddenly there’s a bill in front of the Oklahoma legislature about whether to reinstate the death penalty, and Bill has to vote on that.

 

CLIP, BILL WISEMAN: I knew that capital punishment-- it just doesn’t work, doesn’t make sense. I couldn’t see any way to justify it, I also knew that if I had voted against it for my district I would run a high chance of getting whooped.

 

KAREN: Because 80 percent of his constituents were in favor of the death penalty. And after all that wandering he finally found this job that he loved.

 

CLIP, BILL WISEMAN: I was just having the best time and I didn’t want to get whooped. So I was in a real dilemma.

 

CLIP, SCOTT THOMPSON: What’d you do?

 

CLIP, BILL WISEMAN: The wrong thing.

 

KAREN: He voted to reinstate the death penalty.

 

CLIP, BILL WISEMAN: For whatever reasons, of ego, or vanity, or need, or the motivation to get re-elected, whatever the reasons, I knowingly made a decision when I knew it was wrong, and that’s-- that’s tough.

 

KAREN: So he’s in the legislature and he’s feeling like he just sold his soul. And as they are 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

 

JAD: Oh so like way to assuage his guilt?

 

KAREN: 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 you know the Hippocratic oath, do no harm. Death is a little bit of harm.

 

JAD: Mhm.

 

KAREN: So he goes to the state medical examiner a guy named Jay Chapman. And Jay just sort of freestyles this one line, that Bill literally just sits with a yellow legal pad and writes word for word.

 

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

 

KAREN: 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.

 

[MUSIC]

 

KAREN: It would be hard to overstate 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.

 

JAD: The ideal death penalty.

 

KAREN: Yeah.

 

[MUSIC OUT]

 

KAREN: So Oklahoma adopts it and then the very next day Texas does, and then dozens of states, and since that moment, 88 percent of all executions have been done by lethal injection.

 

CLIP, BILL WISEMAN: 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.

 

KAREN: 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…

 

CLIP, SCOTT THOMPSON: But how does the man who came up with the recipe for lethal injection, what does he do on Judgment Day?

 

CLIP, BILL WISEMAN: The same thing everyone else does, throw ourselves on the mercy of God and say that we have done wrong and we are sorry.

 

KAREN: And the thing that I find really interesting, is that if you look at the modern lethal injection cocktail. It’s three drugs…

 

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

 

KAREN: And in this drug cocktail you can kind of see everything we need and want from the death penalty just kind of all mixed together.

 

[MUSIC IN]

 

KAREN: 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--

 

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

 

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

 

MAYA FOA: You have this burning acid going through your body, and you’re paralyzed, all voluntary muscles are paralyzed so you can’t say, I’m awake. I can feel everything, this is agony.

 

KAREN: She says it is that second drug that is both--

 

MAYA FOA: 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 is torture. Because we weren’t supposed to know that.

 

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

 

KAREN: No actually she goes after the first drug the anesthetic and it's a total coincidence, this was just the one that had manufacturing problems that started the arms race. But it turns out that this drug--

 

ARCHIVE, CHIEF JUSTICE JOHN ROBERTS: The first, sodium thiopental--

 

KAREN: The anesthetic is the one that’s most constitutionally important drug. Because in 2008 when the Supreme Court ruled on lethal injection they said,

 

ARCHIVE, JUSTICE ROBERTS: The parties agree that the successful delivery of the first drug is necessary to

prevent the prisoner from experiencing severe pain

 

JAD: So there’s no anesthetic, there’s pain, which would be too severe and would be therefore what, an eighth amendment violation? Cruel and unusual punishment?

 

KAREN: 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-moled her way across these different companies, she’s just made it harder and harder to get.

 

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

 

KAREN: And that has states scrambling.

 

CLIP, CNN: The drugs used in the 32 death penalty states are now running out.

 

CLIP, NEWS: They have run out of drugs.

 

KAREN: And as a result what you’ve seen is that as a result things have gotten very DIY.

 

CLIP, NEWS: They’re changing and trying new procedures never used before in the history of execution.

 

CLIP, NEWS: Prison officials are in a difficult position.

 

KAREN: You even have the DEA start raiding prisons--

 

CLIP, NEWS: Confiscating the drugs during the import process.

 

KAREN: 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

 

CLIP: He began kicking his feet, lifting his head and his chest off the gurney, grimacing,

 

KAREN: You also get scenes like this.

 

CLIP: Clenching his teeth, and in a couple moments he actually mumbled.

 

CLIP: 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.

 

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

 

CLIP, NEWS: Lockett’s execution used a new drug combination whose source is unknown.

 

KAREN: He was sedated, declared unconscious, but--

 

CLIP, NEWS: He started thrashing, clenching his teeth…

 

CLIP: He started moving his arms, his legs...

 

KAREN: It took him 43 minutes to die.

 

CLIP: Grisly, horrific spectacle.

 

KAREN: And this kept happening.

 

CLIP, NEws: After an hour and 57 minutes, the state pronounced him dead.

 

KAREN: You had situations like this in Arizona, Ohio,

 

CLIP: This drug formula is unconstitutional, because…

 

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

 

ARCHIVE, JUSTICE ROBERTS: Case 14-7955 Glossip….

 

KAREN: And interestingly, when it got to the Supreme Court,

 

CLIP, JUSTICE SAMUEL ALITO: Yeah, I mean, let's be honest about what's going on here.

 

KAREN: Things got very tense. This is Justice Alito. saying essentially, come on guys, this isn’t actually a problem. You made it a problem.

 

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

CLIP, JUSTICE ANTONIN SCALIA: The States have gone through two different drugs, and those drugs have been rendered unavailable by the abolitionist movement.

 

KAREN: And this is Justice Scalia--

 

CLIP, 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 a hundred percent sure. The reason it isn’t a hundred percent sure is that the abolitionists have rendered it impossible to get the 100 percent sure drug.

 

CLIP, JUSTICE ALITO: Is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty?

 

JAD: What do you think he means by guerilla war?

 

KAREN: 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.

 

CLIP, COUNSEL: Should not have bearing on whether that method is--

 

CLIP, JUSTICE ANTHONY KENNEDY: I would like an answer to the question. You’ve been interrupted several times.

 

KAREN: The justices called you guys out, kind of.

 

MAYA FOA: You know, it’s-- look, you know there’s a lot of narrative around this being guerilla 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.

 

JAD: 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?

 

KAREN: Yeah, it’s-- I’m going to say two things one of them is throw away.

 

JAD: Yeah go for it.

 

KAREN: She didn’t cause it, she’s-- The states are chasing the companies, and she’s chasing the states, right? So you can’t say that she caused it. But more importantly what you also can’t say is that it is actually 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.

 

JAD: Oh you mean it’s like botched executions have been happening forever and we’re just now noticing them.

 

KAREN: Yeah. Nonetheless, people do accuse her of making this more cruel. And not just because of the drugs. But because states in their 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.

 

PAUL RAY: The lady that was spearheaded the getting rid of the injections all she did was force people to be shot.

 

KAREN: This is Paul Ray.

 

PAUL RAY: State Representative House District 13, Utah.

 

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

 

PAUL RAY: I was actually listening to the local NPR station--

 

CLIP, NPR: Federal judge in Oklahoma…

 

PAUL RAY: And they were talking about--

 

CLIP, NPR: European pharmaceutical companies used to provide this controversial drug, but now refuse to sell it to American prisons.

 

PAUL RAY: The European drug companies 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. Uh, you know we have a set amount, and then we're out."

 

KAREN: Says he hung up the phone, did a little bit of thinking, a little bit of research…

 

PAUL RAY: Kind of deep into the history and--

 

KAREN: And eventually he came to the conclusion--

 

PAUL RAY: Well, let’s revert back to the firing squad.

 

[MUSIC]

 

JAD: What, you mean firing squad like John Wayne firing squad? Like line up against the wall?

 

KAREN: 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.

 

PAUL RAY: A physician will locate the heart and they’ll pin a target where the heart is.

 

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

 

PAUL RAY: And then when the order is given, they all shoot the individual.

 

KAREN: In the heart.

 

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

 

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

 

PAUL RAY: But I was completely taken off guard by the media frenzy that

 

CLIP, NEWS: It’s a cruel holdover from the state’s Wild West days.

 

PAUL RAY: That happened.

 

CLIP, NEWS: It’s a cruel relic of Old West justice.

 

CLIP, NEWS: And will earn it international condemnation.

 

CLIP, NEWS: The fact that Utah is adopting it now is an embarrassment to the state.

 

CLIP, NEWS: Barbaric. We shouldn’t be shooting our people.

 

CLIP, NEWS: This is ridiculous. This is not the time of Moses.

 

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

 

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

 

KAREN: In fact, Paul would argue,

 

PAUL RAY: If you want to look at something that is more humane, definitely the firing squad.

 

CLIP, NEWS: What caught my attention that it was so sudden, so quick. BOOM BOOM, just like that.

 

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

 

CLIP, NEWS: It was over pretty quickly. It was cleaner than I expected. And it was fast.

 

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

 

CLIP, NEWS: But he moved. He moved a little bit. And to some degree that bothers me. And that seemed to carry on for the last 60 to 120 seconds.  

 

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

 

PAUL RAY: Yeah, and the firing squad has already been upheld by the Supreme Court.

 

CLIP, AS: We have approved electrocution. We have approved death by firing squad.

 

KAREN: That’s Justice Scalia in 2008. The Supreme Court actually approved the firing squad in 1879. And the people who are part of the firing squad are actually volunteers.

 

KAREN: Do you have a lack of volunteers or an abundance of volunteers?

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

 

KAREN: And while I was down there, I actually asked Paul,

 

KAREN: I really want to talk to a volunteer member of the firing squad.

 

KAREN: If you’d put me in touch with somebody who’s actually been involved with the firing squad.

 

PAUL RAY: When we’re done, let’s go in my office. I’ll call somebody.

 

KAREN: OK.

 

KAREN: I'm gonna wait til this thing passes us…

 

KEN: The sound of freedom is going on. That's an F-16 from Hill Air Force to a bombing range--

 

KAREN: Alright, I like it, the sound of freedom.

 

KAREN: This is Kenny. We agreed not to use his last name. And Ken’s dad ran the firing squad for a couple of decades.

 

KEN: So, as you see, there’s two cottonwood trees over here. Those old cottonwood trees, they'd set up and that's where they would drill the firing squad at. These men were selected because for one, they’re absolute marksmen. Two, they just had moral clarity. Just, they-- Many of them did not want to be on there but once they were called, they felt obligated to see it through.

 

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

 

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

 

KAREN: And his mom

 

KEN: 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 and those men were over getting ready. I know that-- it was a pretty solemn moment-- I--

 

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

 

KEN: I think you have to pray for strength to follow through on what you have to do. I think that, you know, you might need a little guidance, and you might need a little understanding, and something bigger than you is out there. And I think that if we’re going to have the death penalty, people just have to understand that there’s some savagery involved in it. And it’s unfortunate that it is. But if we have a to do, let’s do it. But let’s do it humanely.

 

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

 

ROBERT BLECKER: 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.

 

KAREN: That’s Robert Blecker, a New York Law School professor, sounding a little bit like Maya. But he says he objects to lethal injection not because it’s cruel,

 

ROBERT BLECKER: Not because it might cause pain, but because it certainly causes confusion. I attended an execution in Florida of Bennie Demps. And I also was with my father-in-law when he was in a hospice dying from an incurable and very painful cancer. And the death scene in both situations was bizarrely similar. In both cases, the person dying was lying on a gurney with an IV coming out of his arm, wrapped in white sheets, medical technicians at his side, surrounded by loved ones. And it struck me as bizarre that we are killing those whom we love in a fashion that so nearly resembles how we are killing those we rightfully detest. There should be no resemblance. This isn’t medicine. This is punishment. So the firing squad is honest. And it acknowledges itself for what it is. I have one objection to the traditional firing squad that Utah uses.

 

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

 

ROBERT BLECKER: 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.

 

KAREN: 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 asking just talking about the details, like questions about which medicine we use.

 

CLIP, STEPHEN BREYER: The time has come for the court to again consider a more basic question: whether the death penalty itself is Constitutional.

 

KAREN: In other words what he’s saying is it’s time to talk about not just like the mechanics of what we’re doing, but whether we should even do it at all.

 

[MUSIC]

 

JAD: Reporter Karen Duffin.

 

[INTRO MUSIC]

 

JAD: Now when Breyer said that in 2014 he was in the dissent, lost the case. But a lot of people saw this as an invitation, like Breyer is saying to the lawyers of America send us cases. In fact some of those cases have just started to arrive. Two days ago a case made it in front of the court. Or, almost made it

 

CLIP, NEWS: The US Supreme Court on Tuesday refused to hear an appeal asserting that the death penalty violates the US Constitution’s ban on cruel and unusual punishment. 2 of 8 justices, liberals Stephen Breyer and Ruth Bader Ginsburg said they would have accepted the case

 

JAD: Clearly more cases are on the way. Here’s something else that happened while we were reporting this story, this one from about two weeks ago

CLIP, NEWS: The pharmaceutical giant Pfizer has announced that it will no longer allow its drugs to be used in lethal injections

 

CLIP, NEWS: That closes off the last remaining open market source of drugs used in executions

 

JAD: This basically can’t quite say spells the end of lethal injection in the United States, but it’s close. Because now any states that want to keep doing it, they essentially have to go underground to do get those drugs

 

[MUSIC]

 

JAD: More Perfect, it’s our first Radiolab spin off, side band, whatever you want to call it.

 

[CREDITS]