Transparency and the Future of Capital Punishment

quuick heads up before we get started This episode contains a description of what it's like to witness an execution This description comes right at the top of the show We think it's worth your ears anyway When I reached Reverend Jeff Hood He was in a hotel room in Florida His kids were still in bed behind him and he was getting ready to go to what he calls a murder rehearsal this rehearsal was for the killing of an inmate. a man who is seventy four years old and scheduled to be executed this Thursday The rehearsal was a chance for prison officials to meet up with witnesses and explain the run of show. for lack of a better term. This will be the twelfth execution Reverend Hood is witnessing He travels all over the country ministering to people on death row sometometimes to the very end Have you witnessed a good execution Well, none of them are good, but there are some that function certainly more systematically than others I've seen At this point, nine lethal injections and two nitrogen executions And the nine lethal injections look like going to recess in comparison to the nitrogen executions you know, I compare them to a gas chamber and a mask The mask extends from sort of the hairline to underneath the chin It's filled with nitrogen until the person U practically suffocates to death And so as fluids come out of the mouth and the nose and boogers and saliva and all, you know, eye gunk and all this kind of stuff is coming out. It's catching at the front of the mask and sort of drizzling down like a waterfall That sounds horrific. It is. And it's It's incredibly traumatic. I called up Reverend Hood. because I wanted to mull over this question of what a good execution would even look like Recently, the Reverend got a kind of win after advocating against nitrogen gas executions for years Writing a book about them, paying for billboards against them The Supreme Ct weigh in And they prevented the gas execution of a man in Alabama A guy named Jeffrey Lee Part of what was interesting to me about his argument to the Supreme Court was that he wasn't just saying I don't want to be executed by nitrogen You was saying I'd prefer be executed by firing squad You know, So I have multiple thoughts about this I think that When we talk about firing squads, if I was to choose between a nitrogen execution and firing squad, I would choose a firing squad every day of the week. And in fact, if I had to choose between a lethal injection and a firing squad, I would choose a firing squad every day of the week. Why It's a lot quicker And it's a lot I think it's a lot more humane to be quite frank. What does it say that the firing squad now looks like a humane choice I think what it says is is that executions are horrible no matter how they're carried out The thing is, this Alabama inmate He isn't alone in the last year Three prisoners in South Carolina have been killed by firing squad The Department of Justice has recommended firing squads at the federal level too It feels like this big shift one that very few people are talking about It forces everyone to see, to hear, to feel the execution in a way that other methods don't Of course, this is this brings up a very interesting juxtaposition in that It depends on how far states are willing to go And what I mean by that is it depends on how dirty they're interested in getting their hands Um Are they going to have people who are willing to volunteer to be the shooters Are they going to be willing to create these environments that are necessary to carry out a firing squad execution, you know, are they willing to litigate what religious liberty and what condemns religious rights look like in that chamber That's a whole not world of litigation that hasn't been tapped into yet You know, I can tell you that of all of the guys that I work with given them the opportunity I think a lot of them very much would be most interested in a firing squad Do you think more of them are going to get that choice I think so It doesn't matter what method we choose, it's going to be horrible today on the show The death penalty is about as unpopular as it has ever been Yet firing squads. seem to be making a comeback Why I'm Mary Harris. You're listening to What N stick around. After talking to Revere Hood I wanted to speak with someone who could explain why firing squads were once again becoming a preferred method of execution So I called up Maurice Shema for Mover at the Marshall Project He's written a book on the death penalty It's called let the Lord sort them, the rise and fall of the death penalty And over the past couple of years, he has written one story after another about firing squads and how they seem to be making a comeback. It's true. It's had this kind of long slow return, right? where every couple of years it feels like it's worth checking in and it's still coming back, but it hasn't quite had the kind of explosion that keeps feeling like We keep feeling like we're on the precipice of a big return to it. And so we kind of keep revisiting it. and there keep being kind of small things in the news that kind of suggest that trend or direction Yeah. I mean In the last year, South Carolina began executing prisoners by firing squad Recently, the Department of Justice issued a report encouraging federal facilities to consider the use of firing squads, although You'll correct me if I'm wrong I dont think the federal government executed a prisoner since twenty twenty one That's right. It was Trump. The first administration. he oversaw a bunch of executions in his final months in office. And then Biden actually came in and grantedmency to a bunch of people on federal death rows. So there are very few people that the Trump administration could even try to execute. Um but actually even Before Trump came into office this time, he was talking about firing squads in speeches. he was talking about the guillotine. He's he's veryer for a kind of spectacular violent version of the death penalty, which is probably not surprising given, you know the other things about him. Is there one mention that you as someone who follows this, like it stands you remember it? you remember him talking about it Well, really actually what sticks out is that he had an email to supporters and then also a truth social post, I think, where he said, Time to bring out the guillotine. which The guotine is not the same thing as the firing squad, but they are both these kind of relics of a more spectacular and violent and often public version of the death penalty that seems to be the thing that he really cares about. And I think that that then gets sort of reflected in the more you know stayed and legalistic language that the DOJ put out sort of encouraging Both the federal prisons and state prisons to kind of consider the firing squad What's the reasoning here? There are a few. One is about the absence of other options, right? Lethal injection has been the dominant method of carrying out the death penalty for the last generation, and it has increasingly gotten harder and harder to do It's harder because advocates have basically put pressure on drug companies and other people to just not provide What you would need to do a lethal injection, right That's right. startarting around twenty ten, activists got really good at going to pharmaceutical companies and saying, hey, are you really comfortable with your products being used to kill people? And the pharmaceutical companies said no, and the Overall gist of it was they said, okay, we're going to stop allowing our drugs to be used for executions. and that made it way harder for states to carry them out. throughroughout all of the state started looking back at other methods. and as they started looking, they realized The firing squad has kind of been around all of this time as a very simple way to carry out an execution, and it raises this question of why we weren't using it all along. And the reason we weren't using it all along is I think, largely about how difficult it is to look at, right? as far as the experience for the incarcerated person being executed Um All signs point to it being more painless. And What's interesting about that is that it's prrisoners who bring lawsuits to court saying, we don't want to be executed by lethal injection, it's painful, it's grizzly. And the courts have said If you want to contest lethal injection, you have to put forward another option, which is very surreal to to sort of have to propose in court how you would like to be executed, but that's the reality of it And these men on death row have many of them have said, The firing squad seems to be the simplest and most effective, I'm going to be dead in a matter of seconds. and Uh, if I have to pick, that's the one I would pick Can we take on this question of whether firing squads are more humane because It's clear that prisoners think they could be But historically I'm not sure the evidence is clear Like when I read about the history I was reading about how the first Supreme Court challenge to firing squads arguing their cruel and unusual punishment was back in the eighteen hundreds The court said this method is better than drawing and quartering. okay, I'll accept that But then the guy who filed this case and lost it was executed by firing squad And it was botched I know, the irony is is is kind of que Yeah. I mean, he was like smoking a cigar, he moved a little bit, they like missed, and he literally said, My God, they've missed it and took fifteen minutes to die The argument for it being more effective is not based on there being sort of a purity around it because wrote an article about this where the first line was, there's no ty way to kill somebodyike that's just the reality, right? There's no way to die that is one hundred percent foolproof every time And that's just the kind of baseline reality we all have to accept Now Once you then start looking at the different methods, The firing squad turns out to be more effective and quicker most of the time, right In the sense that there are botched executions, like the famous example you described, they're just more rare, right. Botches mostly come from the protocols not being implemented. reliably or well, right? So The actual fact of the gunshot, if it hits the heart or the head, It causes death pretty much instantaneously and the faults there are about Let's say not tying the person down properly or cases where the shooters have actually tried not to hit the heart or the head because they want the person to suffer, right. So there there's an opportunity for sa cases of that. There was one case I read about where it appeared that the shooters missed and it seemed to be purposeful, right? You can imagine with all executions, it's hard to rule out the possibility of a kind of sadistic prison staff trying to make the execution experience worse for the condemned person Well, and then we have a very recent example of a firing squad where things didn't go as planned. This is Mcall Moti, am I pronouncing that correctly in South Carolina? I believe so. yeah, in South Carolina, there was an autopsy and they found that he suffered a lot of pain for much longer than is typical in a firing squad because it was botched. So the shooters missed his heart and according to the autopsy He suffered, quote, excrciating conscious pain and suffering for about thirty to sixty seconds after he was shot U Ideally a firing squad It's just a few seconds that the person is still alive and they may not actually experience pain at all U I think the broader point is that although every execution method has botches The number of botches or the frequency of it when it comes to the firing squad is just much smaller. So thirty to sixty seconds may sound like a long time, but every lethal injection takes minutes and the botch lethal injections take fifteen, twenty, thirty, even an hour, even multiple hours if everything goes wrong But the firing squad is this kind of imperfect method that is The science suggests more effective than this much more gruesome grizzly method that we've all kind of locked in on as a society. And I think Part of what continually brings me back to reporting on the firing squad is that it ends up being kind of this window on this almost like cultural question of like, why do we avoid this more efficient thing and we keep choosing this grizly horrific way to execute people sort in the name of it being somehow more calm and peaceful, even though we all know it isn't. L there's just a lot of kind of cultural contradictions in what we're doing here It's interesting because that observation can go all sorts of ways. Like I was reading the Department of Justice report that argued that the federal government should be open to Firing squad and the authors Note Ruthfully, I think, that Ati death penalty advocates had argued for lethal injection in the beginning They thought it would be more humane And now these same kinds of advocates are saying lethal injection is not humane What do you make of that Execution methods, we often see a kind of shell game, you know Part of it is harm reduction, that when new methods of execution come out, people who ose the death penalty say, you know, we want to make sure that this is Um as non painful as possible, but of course, ideally, it wouldn't happen at all. And so there's sometimes a bit of a shell game where I think people who oppose the death penalty think, well, if it's as painful and g griszly and horrible as possible, that will just lead the public to get rid of the death penalty altogether That hasn't worked, but I think it's because Part of the problem here is that prisons remain very good at keeping it behind closed doors So when you read about a botched lethal injection or a botched firing squad You're mostly reading about it, right? They let a few reporters into doument what's going on and you hear these Pfect details, but it doesn't quite land the way that it would have in the old days when executions were done in public. And I always look back in the nineteen seventies, there was a lawsuit where like a local TV channel sued to try to get access to film and execution and show it to viewers And it didn't work. And so ever since then they've never been on TV. But I often wonder what would the debate about the death penalty look like if the gruesomeness and brutality of it was more front and center. have an answer to that because it could kind of whip up a sort of public frenzy that is grosser and more like gawking around watching people die. So that's one version of it. But there's also the version where people would be horrified and just say like we don't want executions because you know They're seeing how awful it it actually looks to kill somebody After a quick break if you can Talk to me more about that because in some ways, listening to you I feel like that's the major change here, not the method how we Do it and in front of whom That's right. And a big part of What has changed about execution methods over the last century I would argue that the differences in method are not as important as the shift from public to private. So in the early twentieth century Most executions were carried out in public. And going back into the nineteenth century, they were virtually all done in public And it would be this crowd scene where sometimes hundreds or thousands of people would all gather to watch the condemned person be. t or executed by firing squad. This was, of course before lethal injection and the electric chair really took off. So you're mostly talking about hanging and firing squad and then of course, going further back into history, the guillotine It was used in the American Revolution to publish desertion. It was. It kept soldiers in line. It kept soldiers in line, exactly. And the firing squad has always had a kind of loose cultural association with the military that there's something seen as kind of honorable or dignified sometimes about facing a series of guns from your fellow soldiers and And but in all these cases, it's done in front of large numbers of other people And of course, this all precedes television and in some cases radio. Executions used to be these kind of carnival atmospheres where there would be hundreds or thousands of people who would all gather and watch someone be hung And part of the problem was that didn't look that different from a lynching, frankly, right? So were this is the same era in which mobs of people would abduct frequently black people who were arrested, let's say, people who were accused of rape and they would abduct them from the jail and then they would lynch them in public and there would be no trial. But the line between a public offfficial execution and an illegal mob lynching in the deead of Night was often very thin. Is that why They stopped being public? Yes, exactly So there was an execution in Texas in the early twentieth century A man had a formal trial But it was so short that they were already building the scaffold outside the courthouse, and the reports are that he could hear the sound of saws and hammers building the scaffold outside of the courthouse while he was being tried Right? So So For that man, it effectively was a lynching with a pretense of legality. And part of why executions went behind closed doors was there was a kind of embarrassment eventually on the part of, I would say, elites, mostly in the South. They were doing more business with the North, you know in the kind of post recconstruction era And there was a kind of embarrassment around the idea that like we're a bunch of hicks who are lynching people, right? And so there was this effort to make executions more dignified in various ways and quieter and less of a spectacle. And that is why States started putting them behind closed doors. In Texas, they literally went behind these very tall brick walls in a prison in Huntsville and it went from being like the local sheriff who carries out the execution to the state prison system. So there was just this move, I think, to kind of formalize and legitimize the process That shame seems really important to me and it It seems like it's been baked in from the beginning. like even with firing squads years ago There was often an idea that you didn't want to know who had fired the deadly shot. Like maybe one guy has blanks And he doesn't know. And so everyone there has plausible deniability Right that they weren't the one Exactly. killed the guy. That's right Is that happening now too It is. yeah. My understanding is that South Carolina will have an empty rifle Idaho in the last year announced that it had tried to build a machine that would shoot guns automatically so that people wouldn't even need to be involved. and that apparently didn't work out Yeah, Idaho is prioritizing firing squads starting in July, right? That's right. Idaho has now announced that it will be the default method of execution in that state. As in all these situations remains to be seen whether they actually carry it out because there's always a lot of litigation in the run upp to these executions, right? And so you can get things that are halted or stayed a day or even an hour before they happen. Going back to this point about shame, I think that it does speak to a kind of collective ambivalence we have about the death penalty in the first place. We want to have the death penalty, but we don't want kind of to fully reckon as a society with like what it means to alogher kill someone I mean, support for the death penalty It's nearing historic lows. That's right It's so strange to see both of these things happening at the same time It's true, although I think of it as a polarization problem So So the support for the death penalty is lower than it's ever been. It hovers around fifty percent But it's also getting stronger in certain red states, right? So it's becoming more of a polarized thing than it's ever been. In the eighties and nineties, Democrats were very pro death penalty. Bill Clinton was very pro death penalty But now you're increasingly seeing Democratic governors like Gavin Newsom or Josh Shapiro really try to makeake a political stand against the death penalty. I mean A few years ago Gavin Nsom ordered the execution chamber in California dismantled. He didn't abolish the death penalty and Death row still has hundreds of people on it there, who could all be executed someday The death chamber is dismantled. Meanwhile, you have A attorney generals like Ken Paxton in Texas or Act even more dramatically, Ron DeSantis, the governor of Florida picking up the pace of execution in that state really, really significantly And it feels related to kind of trying to signal to the Mga base. You know, Trumpkes the death penalty. Well, I like it too. And we're going to ramp it up to show that we're sort of implementing the president's vision for America. Wow I mean I' el to say to that.'s it's That's a lot It's a lot And I think that the death penalty will continue to exist, but it will become more and more this concentrated an extreme thing in a handful of states that really want to prioritize it. And more and more this ambivalence that I've been describing It seems to be drawing in the direction of killing the death penalty off as a relic, not because people have necessarily turned away from it philosophically or religiously because it's just not worth the expense and the Tuma and the Giszliness of it It really does feel like listening to you talk Even when people are talking about the death penalty, They may not be grappling with it That isn't frankly, the basis of my journalistic career, I think, that I feel as though Pople have opinions that are pro an anti death penalty, but they're talking about it as this abstract philosophical thing and they're not really looking at the reality of the human system that creates it. So there was a famous quote years ago that if people knew everything about the death penalty, they would never support it. And I don't think that that's true But I do think that we have been having kind of the wrong debate about it over the years, that we talk about it as this thing you're for against based on some vague philosophical ideas about vengeance versus mercy And of course, those are all there and they're in these individual cases once you get into them What you learn from looking at it over and over again is that it's a human system, which means that it's so prone to error prone to error in terms of executing people, and it's prone to error in trial, where you're constantly hearing stories about potentially innocent people being sentenced to death, about evidence being withheld Thou defeense lawyers falling asleep at the trial being paid enough It's just it's a very human system and I think people are often debating what they imagine a perfect system is and we just don't have it and never will I mean, right before I talked to you, right before I spoke with you, I talked to Reverend Jeff Hood, who I'm sure you know. He's a minister, works with people on death row. priest Uh He basically said This is a tough topic for me to talk about because the people I minister to They kind of want firing squads. They think it's going to be better for them prisoners themselves But he landed in the place of if you're gonna do firing squads publicly make people reckon with what they're doing I think that You know, if we're going to do executions I think we should have firing squads on television liive for the entire country to see because I think that it's important that people have to deal with what we're actually doing I think that's a very legitimate point, and it's a point that I am naturally biased towards as a journalist where the whole job is transparency. making hidden things more clear for the public and This idea, this kind of belief that if people were confronted with the reality, they would change their opinions I go back and forth about whether Firing squads or public executions generally would actually lead people to turn away from them. because as I've said earlier phases of American history, what public executions did was whip up a bloodlust, frankly. and you know In an era where there are like UFC cage matches on the White House lawn It's hard for me to believe that Public executions won't be celebrated by a significant number of Americans Um, So I really struggle with what the implications would be, but I keep coming back to the fact that transparency tends to help policy issues get resolved a little better Yeah. I mean, I mean, having public executions did make some elites think like we should put that behind a curtain Exactly. No, it's absolutely true. And and I think You also get more opportunities for business pressure. So I remember years ago, there was a run of executions in Arkansas and Richard Branson, the head of Virgin Atlantic, came out and said, Hey guys, let's not do business with Arkansas. This is such an embarrassment for this state And uh I wonder if Executions were public, you wouldn't necessarily see individual people all turning against the death penalty en masse, but you would see that shame kind of play out in a business context. There would be more opportunities to kind of persuade and shame people to change that they're doing and the death penalty would not disappear because everybody turned against it, but because of frankly, commercial and economic forces you already saw this with lethal injection, that part of why lethal injection has been curtailed a little bit is because big pharmaceutical companies think of it as like bad for PR. and so I think It would be truly ironic if Part of what reduces the death penalty over time is just capitalism and the forces that unleashes. Yeah. Um Maurice, I'm so grateful for your time. Thank you for coming on the show. Yeah, thanks for having me Maurice Shima is a staff writer over at the Marshall Project He's also the author of Let the Lord sort them the rise and fall of the death penalty He just hosted a podcast with our friends over at Serial Productions. It is called The Last twwelve Weeks. It's all about lawyers trying to save a Death row client You should check it out At the top, I spoke with Reverend Jeff Hood priest and activist against the death penalty He's also the founder of the Eecution Intervention Project What nextext is produced by Rob Gunther, Evan Campbell, Madeeline Temes Ducharm, and Patrick Fort. Pai Jsburn is the senior supervising producer of W Next and W Next TVD Mila Bell is the executive producer of podcasts here at Slate Ben Richmond is the senior Director of Podcast operations, and I'm Mary Harris. Go say He, I'm Blue S sky, I'mat Mary Harris Thanks for listening. catch it back here. time