SCOTUS OKs Execution By Nitrogen Gas Because Evil

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:53 Thomas: Hello and welcome to Opening Arguments. This is episode 1004. Can you believe that the three of us have done a thousand and three episodes before this. Crazy. I'm Thomas. That over there is Matt. How are you doing, Matt?

0:01:05 Matt: Right. Going to be talking about something where the speech to joker issue is pretty low today, but I'm doing good.

0:01:10 Thomas: I do actually want to talk about that. This And is certainly an inappropriate positive energy to start the show with, will but blame it on the fact that I'm so happy that returning again due to popular demand is Casey. How you doing Casey?

0:01:20 Casey: Thank you. I'm excited that there was popular demand for me, apparently.

0:01:22 Thomas: Absolutely. No, that was such a good episode. I am really excited to have you again. You know, Matt, it's funny you should mention the the joke to whatever ratio, I actually thought it was worth taking like 17 seconds to say that. I've realized, Matt, that especially because of the kind of work you're doing, and we even talked in the first episode about the mental health toll that it's taken, I've realised that, like, oh yeah, a lot of times we're talking about very serious stuff, we're talking about stuff that obviously is not like in and of itself, but I also think that like it's important that we keep the energy up and we keep you our humor up, so I want to just flag that me personally, I likely, I will make jokes during the course of this very somber death penalty recording, but just know that like the target of the joke will never be the person who was executed, that will never been like the target I'm going for. And if I accidentally did do that, I would edit it out. So, yeah,

0:02:00 Casey: Yeah.

0:02:06 Matt: Of course. I think we're going for some literal galas hammer here. Is that the idea?

0:02:11 Casey: Yeah, yeah, yeah.

0:02:13 Thomas: Exactly. Well, it was worth mentioning because it's if that's something that people don't like, that's I all up to them. But like, know, when my dad died, I was making jokes. Like it's, it'S not a sign. I think some people sometimes take it as a sign that like, not actually serious about it. I would hope that most people listening know that certainly I won't speak for you, Matt, but I can imagine. Know that like these kinds of things genuinely bother me. Like this isn't something that I, know, that I casually shake off. I actually am genuinely bothered by specifically the story that led to this. I hope people understand that any, jokes I might make usually, by the way, the is the assholes who are doing this.

0:02:33 Matt: Oh of course.

0:02:44 Thomas: I, it was worth saying that for

0:02:45 Casey: Yeah?

0:02:44 Matt: Sure, punching Punching up, for sure. And if you've ever known emergency room doctors or even, honestly, immigration lawyers who make a lot of jokes, too, or prosecutors, I mean, there's a lot of dark stuff that we have to deal with, and it's important to laugh.

0:02:45 Casey: Yeah. Or prosecutors. Computers.

0:02:56 Thomas: Get to that barrel of laughs that is ready to chuckle, everybody, because, no, this is truly this story is just so goddamn disturbing. Um, at the very least, I'm really I'm glad to have the two of you to break it down, uh

0:03:09 Matt: Just want to note up front that we are not death penalty experts, because we're lawyers in Massachusetts, where we haven't had death a penalty for quite a while, on the states here. We're going to be talking especially about Eighth Amendment issues in the light of what just happened in Alabama and this horrible nitrogen gas execution. So

0:03:24 Casey: Matt said, I definitely not say either is for are death penalty experts. Worked on homicide cases fairly extensively, but, as you Matt said, in a state that does not have the death penalty. So I'm very familiar with the law of homicide, but not really the law from a personal perspective in Terms of practicing in a state that has the death penalty. But the kind of interesting thing is that of the reasons I originally started thinking about going to law school when I was pretty young was because of of the death penalty.

0:03:38 Thomas: Wow. Oh.

0:03:50 Casey: So I was a kid, my father was a journalist and he later went on to academia. And so he had these journals kind of lying around the house, academic types of journals about journalism. One of them I picked up one day when I Was very young, I was probably like nine or 10 years old. There was a very lengthy article about the execution of Ted Bundy.

0:04:08 Thomas: Geez.

0:04:08 Casey: And graphic. And it also had a lot of description about his victims as well and about what he'd done, which was obviously horrifying. But it really just stuck in my head that the thought of the fact that states were people. And I guess I hadn't been aware of it till then, probably because I was, you know, around nine years old.

0:04:08 Thomas: We'll Forgive you for that you, you were 10, 10 and a half? We'd be like, "Come on, Casey, get read a book, you Know. Gosh.

0:04:29 Matt: Naive.

0:04:31 Casey: That's what I started doing. I a vast array of books that were very inappropriate for that age. And I became really fascinated by idea of the death penalty. And it became convinced for a good while that what I really wanted to do in life was death penalty defense. And I didn't really think that through like super carefully, to be perfectly honest. And I, you know, I told people that throughout high school and part of college. And then And when I was in college, I discovered that what I really loved doing was traveling, especially traveling internationally. And I started telling people instead I was going to go to law school and study international law, which it turns out is a thing. But I couldn't tell you, despite the fact I've been a lawyer since 2005, for almost 20 years, I still couldn't tells you exactly what that means.

0:04:33 Thomas: Good.

0:05:12 Thomas: Actually.

0:05:12 Casey: When I was telling people I want to practice international law. I don't know what I was thinking. Speaking.

0:05:16 Thomas: Now. I think yeah, what is it like, if another country needs a lawyer real quick, they're like, "Do you have anybody in America who's like specializes in No. I'd Be like, would Be American companies who are like, "Hey, we're gonna do business over here, we Need to, you

0:05:24 Casey: I genuinely don't know. Yeah.

0:05:29 Matt: Just destroyed a rainforest. Can you help us out? Yeah.

0:05:30 Thomas: God. Wish. You were joking. "Hey, we want to get away with, uh, child slavery over here, we're Nestle and know, can you help us with that?" That's Literal, right? I'm not defaming Nestle, that's Good, just Making Sure

0:05:43 Casey: I I a

0:05:38 Matt: I love Neil Kott, y'all. Yeah? No, that happened. I believe that was Nestle. Yeah, that's

0:05:45 Casey: And then, you know, after I went to law school, school, I ended up doing a clerkship at trial court level. Became clear at that point that I probably wasn't cut out for sitting in an office and reviewing documents or contracts for international transactions.

0:05:58 Matt: Think you're cut out for it. You just don't want to. Too.

0:05:59 Casey: Know about that. I think,

0:06:01 Matt: You could do it.

0:06:02 Casey: Yeah, I guess in theory I could. I probably wouldn't still be practicing law if that's what were doing. But the judge that I was working for at the time asked me if I'd ever consider being a prosecutor, and I said no, because I don't want to put people in jail. And I told her about this great opposition I had to the death penalty, and she said, well, you'll be glad to know we don't have the death penalty here, which I did know, to be fair.

0:06:21 Thomas: Yeah.

0:06:21 Casey: I really hadn't considered that, and so I, you know, I ended up interviewing for those jobs. I figured I would stay for a year or two and kind of get some trial experience, appellate experience, which is what bulk of my experiences as a appellate. I ended up staying for 15 years or so and working on a good number of homicides, but as I said, ones that did not involve the death penalty, couldn't in good faith be a prosecutor in a state with the death penalty. I love working on homicide cases. Think most prosecutors would tell you that sort of the pinnacle of being a prosecutor is working on those cases, but I wouldn't be able to do that in a state where death penalty was on the table. But that is my story of how I went from being somebody who thought they wanted to be a death penalty defense attorney to being a prosecutor for a good chunk of my career.

0:07:00 Matt: Very important personal history, and we can kind of broaden it out to the national history now. Very briefly, I think, before we get into the Eighth Amendment, I think people may or may not be familiar with the fact that the death penalty was briefly outlawed by the Supreme Court, if you want to talk about that for a minute.

0:07:12 Thomas: Yeah. Wasn't it in the 70s or

0:07:13 Casey: Yeah? Yes, sir. Yeah. So in you're correct, the Court briefly said that penalti was unconstitutional as it was being applied. That was in 1972. It was the case of Furman v. Georgia. At that time, the Supreme Court invalidated all of the existing death sentences in the country. They were all converted to life without parole. Not going to even attempt to go into the various decisions involved because of the fact that there one majority decision.

There was what's called a a per curiam decision for the majority that was one page long that said that death penalty unconstitutional as it was being applied, essentially because it was being applied in an arbitrary and capricious manner. And then the justices went on to write completely different opinions. So it's a 5-4 decision.

It's a one-paragraph opinion opinion, saying that the application of the death penalty constituted cruel and unusual punishment and so it violated the Eighth Amendment of the Constitution, but the majority couldn't agree as to a of the justices said that they thought that the death penalties was just unconstitutional period. The rest of them, I think three or four of them—what they were concerned about mainly was the arbitrariness, was which death sentences were being imposed by the laws that were existing. They were concerned about racial bias and the imposition of death sentences as

0:08:27 Thomas: And and just make stepping sure I have this right, the way it works is, like, the decision is going to be whatever, I majority guess, a majority degrees on, but you have these like concurrences or like dissents in part. And saying that this decision, while bare minimum, I guess that, that at least five justices agreed on, was unconstitutional because of cruel and unusual punishment, the way it was being meted out. But then, OK, wow.

0:08:49 Matt: Not inherently.

0:08:48 Casey: So it's very unusual that the just couldn't agree on a rationale. So there's no actual signed opinion or even a plurality opinion as to the rationale. Now, the the dissents, said they the fact that 40 states at the time had the death penalty means that it just couldn't possibly be and unusual. It couldn't possible go against, you know, what's called the evolving standard of decency. And what's really interesting is those four in the dissent, they said that they personally opposed the death penalty and that they personally would vote against it if they were on the state legislatures, but that they thought that it was constitutional nonetheless. To say it's interesting because one of those justices was actually William Rehnquist, who would later be the chief justice of the Court. It.

0:09:26 Matt: A little weird to say if I were in a different branch of government, I would do different... I don't understand that,

0:09:30 Thomas: I I guess I'll say that I can understand that maybe like could understand somebody Biden stance is a long time. He's been, well, I'm not a huge fan of abortion as a Catholic, but I recognize that everyone has a right to it. Although now they say that, maybe not, Matt, maybe you do have a good point because it's still, either way, you're dictating policy for people. It's one thing to be like, personally, I's not going to do it in my personal life, but people should have the right to do it. Now I'm trying to think, is that analogy, does that even work?

0:09:55 Matt: The different standards, for sure.

0:09:56 Casey: They're basically saying that they, on ethical grounds, moral grounds, they might not agree with this, but that doesn't mean that it's unconstitutional. And one of the judges actually wrote that in the 181 years since the enactment of the Eighth Amendment, 181 at that time in 1972, not a single decision of the court has cast the slightest shadow a doubt on the constitutionality of capital punishment. Me, it sounds like they were just trying to get across that they personally didn't support this, but that didn't mean that it was unconstitutional.

0:10:22 Thomas: Yeah. You checked that? I Cause, don'T always believe everything that conservatives might write in a decision.

0:10:27 Casey: Yeah. I find it a little hard to believe personally, but

0:10:28 Thomas: Uh, yeah. Who knows? But so it sounds to me like the idea is, well, if if so, everybody's doing it, it can't be unusual or whatever. And, know, and this isn't the main focus of the show. I don't think, But I just don't think fundamentally that's how it should work. I'm curious of your guys' opinions. But is I a constitution supposed to do if not protect people from a majority thinking like, actually, we're cool with discriminating or we're Cool with whatever or, you know, we'RE Cool with segregation like that, if anything, I feel like constitutional rights are specifically there to protect against that thing. And an argument of popularity to doesn't doesn't work there. But what do you think?

0:10:38 Casey: Yeah, yeah, mm -hmm, mm, yeah.

0:11:05 Matt: Especially the as-applied issue is still very much a live one, because people convicted of killing white victims are executed still as of 2020, as a Harvard study, defendants convicted of killing white victims are executed at a rate 17 times greater than those convicted of killing black victims. So the problem is still there. That was a 2020 study, This is not that long ago. You're saying, the counter -majoritarian kind of thinking here, I think it's important. We're going to talk about the future of the death penalty, I think, at the end.

0:11:19 Thomas: Wow. Yeah.

0:11:28 Casey: I'll say I think there are two ways to look at it, is that in one of the decisions, right, in Furman, I think it was was Thurgood Marshall, but William Brennan and Thurgood Marshall had concluded that the death penalty itself was cruel and unusual punishment. Reason, and the they said that was the case was because they said it was incompatible with evolving standards of decency of a contemporary society. And we actually in Massachusetts recently had a case that had to do with the of life without parole for young adults.

And it actually cited that standard as well in finding that it was unconstitutional to impose life without parole sentences on people between the ages of 18 up to 21. One way of looking at it, right, is whether it is incompatible with the evolving standards of decency of a contemporary society. And then I think the other way of looking at it is what I the more conservative justices tend to have said, which is, how can this be both cruel and unusual if it really unusual if the majority of states have these laws and regularly impose them. So I guess it's just different two ways of looking at

0:12:19 Casey: It, really. And I will say that I was very surprised today when I was doing a little bit of research to find that the number of states has gone down very substantially. When we were in law school, it was 38 states had the death penalty. So we were very much in the minority, New England, and now it's 27. Of it, think, and that's changing.

0:11:51 Thomas: Gosh. Yeah, only that, I don't know that a that state by state count is necessarily a good way to even adjudicate that. You know, when, why do they have the death penalty? When was it decided? Has public opinion changed since state, you know, are there a lot of states where if you polled them, the majority would say, no, that's horrible. But like, like, it's a little cheap of the Supreme Court to act like if the populace wanted felt a certain way about a certain issue, then, well, naturally, that would mean the laws of the state reflect how the populace feels. It's like, really?

0:12:41 Matt: Sure, sure. Yeah.

0:13:02 Thomas: Does that always happen? This definitely predates Scalia's cruel and unusual crap. Or was that the rational back then? I thought, I thought Scalia came up with that horribleness, but were they even saying back then you have to be both cruel and unusual? Cause my response to the unusual part would be like, okay, but it seems cruel.

0:13:18 Matt: We And I

0:13:18 Casey: I don't know if they articulated it as strongly as he did, perhaps, but my guess is he was sort of taking guidance from earlier decisions and sort of, as he tended to do, articulating it in the strongest way possible.

0:13:31 Matt: Think it's worth stepping back too and looking globally if we're talking about unusual, about the trends. Because right now, in terms of human history, I guess if we want to go the whole thousands of years here, arguably we're living in the most execution -free times. I know there's still executions happening all over the world, but it used to be absolutely the norm pretty much everywhere. A great Hardcore History Blitz episode. It's like four hours long because that's how Dan Carlin does things. Well worth worth listening to about public executions, about the history of them. Quick, Thomas, do you want to guess the last time that France executed somebody by guillotine?

0:13:58 Thomas: I've saw seen, someone said recently it was within their lifetime. So that's a little bit of cheating, but know. I So, that would mean what? 70s?

0:14:04 Matt: You could have gone to see Star Wars after. 1977. Yeah.

0:14:08 Casey: What?

0:14:10 Thomas: Well, you know, let's be honest, every time that when you see story that's like, well, this guy wanted to be executed by firing squad. And that was like, you know, last year, I don't know, or seemingly recent. And response the of that that is barbaric. And why? Why is that more? Why does a guillotine more barbaric than lethal injection? Like, they

0:14:11 Matt: Sure.

0:14:29 Matt: Arguably, guillotines are more humane than some of the methods we're going to talk about today. Think so.

0:14:31 Casey: Yeah.

0:14:34 Thomas: I'm making is it's this kind of personal instinct from the outside, like from the outside shooting someone, beheading someone, well, that looks a lot grosser. And I get it. It does. But like, if I was choosing how to go, I don't know. I wouldn't choose the firing squad. That actually seems horrible. Maybe with modern technology, it's better. But like guillotine strikes me as not the worst way to do it. I'll be honest. Like rather than being totally strapped down, helpless, and just have stuff injected into you, that seems horrifying to me. And the point The point is, I of the problem here is illusion that if we execute people just right, it actually is humane. It's actually fine. It's eigentlich totally cool.

0:14:45 Casey: Yeah.

0:14:45 Matt: Yeah, it's quick.

0:15:14 Matt: We don't want to fall in that trap.

0:15:15 Casey: Yeah.

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0:16:24 Casey: Think we left it at we glorious four -year period where there's no executions in the United States and we Yes.

0:16:27 Thomas: Only Oh, man. Wow.

0:16:31 Casey: Four years when and hundreds of have death been overturned. And then in 1976, 1976, a cases, five cases, make their way up to the Supreme Court again because it turns out that a of states, I think 35, had their death penalty statutes to try to meet what they saw as the guidelines in Furman, such they were basically that they couldn't be arbitrary and capricious in the application of the And makes its way up in 1976 to the Supreme Court. Lead case is called Gregg v. Georgia, and cases. It involves Georgia statutes, Florida, Texas, North Carolina, and Louisiana. And basically at that point, the court takes a look at the statutes at issue and says that three of the statutes pass muster. They do not violate the Amendment. Point out that 35 states and Congress had complied with what the court said in Furman, which was difficult to figure out.

0:17:20 Thomas: Was, who knows? Yeah.

0:17:21 Casey: Yeah. And they said that basically those states had either specified factors, you that had to be weighed before imposing a death sentence or procedures that had to be followed, or they've dictated that the death penalty would be mandatory for specific crimes. They found, interestingly, the death penalty comports with the basic concept of human dignity at the core of the Eighth Amendment.

0:17:38 Thomas: Oh, yeah.

0:17:40 Casey: And it says that capital punishment is an expression of society's moral outrage, a particularly offensive conduct, and it serves the purpose of retribution, supposedly, of deterrence, which I think is extremely questionable.

0:17:50 Thomas: Which also burning at the stake would as well. Well, that would be an outrage, show our outrage at what we don't like. I got to say, though, so morally speaking, everyone knows where we are, I think. But legally speaking, I don't entirely blame these states for being like, well, we're looking at what that decision was. And first off, it's hard to tell what it was. But there seems to be like an as implemented issue that that seems to me. That seems to mean what's going on. So legally speaking, I actually I don't think it's unreasonable to be, like, OK, well, why don't we take a look at that and then try again? Again, and feel like nobody benefited from the vagueness of that decision. Like the court could have given some sort of guidelines as to precisely what about the death penalty was needing to be changed in order to it into constitutional territory.

0:17:53 Casey: Yeah, yeah.

0:18:33 Casey: Well Did kind of do that in Greg. Right, Firman was pretty broad strokes, to put it nicely. Um, in Grek, they my basically said that the statutes at issue have to provide objective criteria, um, directs limits when when the death sentence is going going to be imposed, right? You can't just have unfettered discretion, to be objective criteria. Secondly, the scheme has to allow the sentencer, whether it's the judge or the jury, take into account sort the full picture when it comes to the defendant. So it can't be, least my understanding is, it can just be automatic, mandatory. If you're convicted of murder, you get sentenced to death. Have They to take into account objective criteria, and they have to have um ability, whoever the the fact finder is, just um, to take into account totality the of the circumstances when it comes to the individual defendant.

0:19:13 Matt: A point I've got to make here, and I think it's probably, I hope, pretty obvious to everybody listening, but this is a garbage in, garbage out situation. Talking about as applied, and you're talking about states like Alabama and Mississippi that are disproportionately applying the death sentence to non-white people who kill white people, especially. And if in 2020 we can still show that people who kill white victims are executed at a rate 17 times greater than those convicted of killing black victims, the court can't very well say, like, go stop being racist in your justice system. That's just not an order that they can try, I guess. But as long as that garbage is still coming up, then the as-applied is always going to be with us.

0:19:19 Thomas: Yeah.

0:19:49 Thomas: Maybe and is there some way they could have said, um, if the data shows that this is being applied more fairly, then we could re -examine or or was there someway for them to set guidelines order to make it make some sort of sense? Because it sounds like what happened is four four years later, it. They, I don't know if the constitution of the court changed or something, but like those states took advantage of the lack of information in that first decision to just say, well, we, uh, you know, we tuned it up a little bit, open know, made some adjustments, and now we should be good to go. And then they're like, okay.

0:20:14 Matt: It's the same problem you have with Brown v. Board with all deliberate speed. What do these things mean? When are you done? When it actually fixed? We should drill down a little bit on the types of execution. I mentioned guillotine, obviously. We never tried that one as far as I know. For the most part, the prevailing at this point is lethal injection. We're going to talk a little about the history of that and how it fits into the Eighth Amendment and the evolving standards of the Eighth amendment, how we're looking at it. One state still has hanging and it's New Hampshire. Hampshire has abolished the death penalty, but it's still on paper.

0:20:17 Thomas: Hmm. Yeah.

0:20:41 Casey: There is one person on New Hampshire's death row, so, they, they abolish their death penalty, that change did not apply to his case.

0:20:48 Thomas: Gotcha. Gotcha.

0:20:48 Casey: Yeah.

0:20:50 Matt: So anyway, the injection is still the prevalent method. And there have been a lot of issues in actually carrying that out for reasons I think Casey can talk abou.

0:20:57 Casey: Yeah, so, somewhere around 2014 or 2015, the state governments that wanted to carry out executions, or, you know, they were authorized by law to carry out executions by lethal injection, having quite a difficult time sourcing the drugs needed for their execution protocols, because all the states, my understanding is, have, some you sort of protocol, presumably in the the form of regulations, state regulations that they've put into effect, supposed to have specific cocktails of drugs that they were using. And there are other regulations as well as to how they actually administer the lethal drugs. I, and don't need to go into the details of that. But one of the things is in some states, they have to attach two different IV lines to the person. So they start having quite a difficult time around 2014, 2015, 2016, sourcing the drugs they needed for the executions under their execution protocols, the reason for that was kind of twofold. One is some the drugs, they just began to experience a shortage in general, which I think we're all probably familiar at this point with various types of drug shortages, is.

0:21:52 Thomas: Kidding. I would be kind of mad if I couldn't get my ADHD meds, but they're like, but do you want some drugs to kill someone? Just in case. I mean, we've got plenty of these.

0:21:56 Casey: Yeah.

0:22:00 Matt: Phenobarbital.

0:22:00 Thomas: Yeah.

0:22:01 Casey: Other issue is that manufacturers kind of caught on to this. And I don't know why they didn't catch on to it sooner, but they, companies, including very large ones like Pfizer and Baxter, they banning, prohibiting state governments or correctional institutions from purchasing those drugs to be used in executions, and they sell their drugs to people, they can choose to sell or not sell drugs to whoever they want to.

0:22:24 Thomas: To ask, is that a thing you can do? Like, it strikes me as like, I wouldn't I be surprised if there was some rule that's in somewhere that's like, well, you can't the prevent government from buying your products. Like there's going to be some war powers act, something, something of 1875 that, tells that you that or something.

0:22:26 Casey: Yeah.

0:22:39 Matt: Of contract.

0:22:39 Casey: Understanding is, is that they'd written into the contracts that they could not be be used for execution purposes. And of some these drug companies, if not all of them, put out statements explaining their thought process on this. And some of that had to do with, you know, moral objections to the death penalty, so-called, you know, evolving standards of decency, some of it had to do, I think, probably with business decisions that it looked, you great, perhaps, to a segment of the world population. And some of it, I think, legitimately may have had to do with the fact that these drugs are not approved to be be used in executions. That's not what they're for. And

0:23:09 Thomas: That is a weird thing to get approval for. I what, what's the process by which agency an would be like, yep. Looks good. Looks good on that. Uh, you can kill with that. That's cool. Which I think is going to Be relevant to, our discussion. Because it really is the thing where you cannot do a trial ethically, it seems to me. How could you possibly do an ethical trial of a killing drug without being willing to risk that, like, oh, shoot. No, that one's bad. Don't do that.

0:23:36 Matt: Know, it's interesting you say that, though, because Canada last year carried out 10,031 lethal injections. 10,031 people died of lethal injection. From medically assisted, basically end -of -life care, right? So I putting it in kind of a shocking way, but they chose that, and who were in severe pain or otherwise terminal. Think we all support doing that ,and many states allow it now. But I had a question as I was thinking about all of this about, because I again, we all oppose the death penalty. We don't want it to happen. But if it's going to happen, And why not use the kind of cocktails they do for this?

0:23:41 Thomas: 10,000? Oh, oh. Oh, gotcha. That

0:24:08 Matt: Because,

0:24:07 Casey: Well, I I have a footnote on this. I also, because, possibly because of ADHD as well, went down a little bit of a rabbit hole looking into this. Um, 2019, the Department of Justice actually, uh, an opinion directed towards the the FDA, saying that articles intended for use and executions carried out by a state or the federal government cannot be regulated as drugs or devices under the Federal Food, Drug, and Cosmetic Act, and the FDA therefore lacks jurisdiction to regulate articles intended that use. Essentially, DOJ the DOJ was trumping the FDA and saying that you drugs for executions.

What is very interesting in relation to what Mattress said is that the The letter did specifically also state, the opinion also stated, we do not address whether the FDA has jurisdiction over drugs intended for use in physician -assisted suicide. In marked contrast with capital punishment at the time of the FDCA's enactment, there was not, so far as we are aware, any history of federal state laws authorizing human euthanasia. It doesn't actually address, and to be fair, I don't know whether there could have have been some later DOJ letter or decision that opines on that. But at least as of 2019, had declined to whether the FDA might have jurisdiction when it came to regulating euthanasia drugs, which may be the same.

0:24:08 Thomas: Is really interesting.

0:24:37 Thomas: Yeah.

0:25:19 Matt: Have the same problem, though, of course, that the companies that make these kinds of drugs presumably don't want them to be used to involuntarily kill people, I

0:25:25 Casey: Involuntarily, yeah.

0:25:25 Thomas: Have Yeah. Never never thought about that. And that inspires a lot of thoughts that we probably don't have time for, except to say I've never thought About the fact that every time I've seen any post, and I've seen a few about, you assisted suicide, or like, those kinds of things are proposed ways to do that. My mind, it's it's never the same methods as executions that I Yeah, And now I'm wondering, like, why in the world would that be? Like, you're trying to decide how the most ethical way to kill somebody. It seems weird that the answer you would arrive at would be so much different than how someone would choose to do it if they were were wanting to do what.

0:25:25 Casey: Yeah, Mm -hmm. Yeah.

0:25:45 Matt: No, not even close. No.

0:26:02 Matt: Typically don't sit around thinking about how to kill people. They're supposed to do the opposite of that. But I there was an interesting story going around last year. I don't know if you heard about this, but it was presented at a medical conference of a man who attended an end-of-life ceremony for someone who was going to take one of these cocktails. He was going drink it. And this guy, 37 years old, just picked up the cup and took a sip. He's just curious about it. Don't do that, people.

0:26:23 Thomas: Wow. Yeah.

0:26:25 Matt: Do not take a sip of your friend's, you I mean, I can't even imagine. There's supposed to be a doctor on hand. I don't have anybody to let this happen. The guy passed out immediately. He was sent to the ER for two weeks. Just taking a tiny little sip. And that's because, I'm just going to read off very quickly the ingredients, 1,000 milligrams, which sounds awesome, honestly. Digoxin, 100 milligrams. Morphine, 15,000 kilograms. Amitriptyline, 8,000 mg. Phenobarbital, 5,000mg. We use phenobarbita obviously in state executions. But right away, off the bat, you're getting 1,000mg of diazepam, you're not feeling anything. I mean, I don't know why they can't just do that. That's how I want to ago.

0:26:41 Casey: Was

0:26:55 Thomas: Yeah. This is This is wild. So that person did that person survive though? What in the world?

0:27:01 Matt: He made it. A terrible story because his friend that he was there to help through, was he dying at the same time because he had taken it. And anyway, but it's a really freakish story. Brought to my attention this exact question of if you can give somebody a thousand milligrams of diazepam so they don't feel anything, why have we not contemplated doing that? And that's actually, that does lead into the next conversation, which is the, called the Bayes -Glossop test. The Supreme Court has refined what constitutes criminal unusual in the terms of these sort of chemical executions.

Bayes v. Reese in 2008, and was looking at Kentucky's lethal injection protocol, and Glossop v. Gross in 2015, which was looking up midazolam, and were upheld as being something that could be used in executions. Cases created kind of this hybrid test that was kind of finally finalized by Neil Gorsuch in 2019. I want to talk about this Bucklew v. Presaith case in 2019, five years ago. The reason it really matters for our purposes today is they were actually considering nitrogen hypoxia as an alternative to pentobarbital. This is at the time Neil Garsuch goes full originalist. And think about what originalism means in the context protective executions.

0:27:02 Thomas: Yeah. Well, Yeah.

0:28:02 Matt: Not great. Yeah. And what they're looking at, and I mean, again, this is in the United States five years ago. This is really shameful, honestly, but they're going through a complete analysis of exactly how much pain somebody's going to feel when they do one thing versus another and how much we can accept that pain, like what the reasonable tolerance of pain is. And again, we fact that there is a completely pain-free alternative where you just blast somebody with diazepam and they go to sleep feeling okay. Instead, we're arguing about pentobarbital. And I just want to read a little bit from this Gorsuch decision because I just find this whole thing to be so disgusting. Again taking the originalist view, so he's going back to Blackstone and looking at 1769 laws

0:28:02 Thomas: Oh, yeah, that's

0:28:38 Matt: Of England.

0:28:39 Thomas: Useful.

0:28:40 Matt: And yeah, right. I mean, of course, he's trying to figure out unusually painful deaths, what it means to be cruel and unusual in the context of Constitution. The I I mean, it's absurd to think about.

0:28:50 Matt: I mean just – I mean because of course at the time, they considered disgusting practices to be things like dragging the prisoner to the place of execution, disemboweling them, quartering, public dissection, burning alive. All these things had been done, but we were moving – the evolving standards had at least moved past drawing and quartering by that point. Right? He's basically saying as long as it's not actually cruel, which he again goes back to the laws of England of 1769 to say that they're pleased with hurting others, inhuman, hard-hearted, void of pity.

So basically, if you're sadistic, if your doing it in a sadistic way where you're having a good time killing somebody, the Roman Colosseum, you could actually go have lunch and you could yell out what kind of execution you'd wanted to watch. This is that kind of sadism where they would take requests. They would just do executions in the middle of the day. That. And they were past that at the time of the Constitution, fortunately.

But specifically writes about hanging that in contrast to punishments like burning and disemboweling, hanging wasn't intended to be painful. So the risk of pain involved was considered to be unfortunate, but inevitable. So that's basically okay for him.

And the Bayes-Glossop test is looking at, essentially, a prisoner is proposing a different method of execution, if a prison is saying, this is going to be too much, I have a better idea for how I want you to kill me, which I can't even believe I'm saying these words out loud. But just to read the test to you, at least the latest version of it.

The question in dispute is whether the state's chosen method of execution cruelly superads, that's a word I've just learned, basically mean compounds, superads pain to the death sentence. A prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the state has refused to adopt without a legitimate

0:28:48 Thomas: It's so stupid. It's such a shame. It's just so stupid, yeah yeah.

0:30:21 Matt: Pedological reason.

0:30:21 Thomas: So it really puts the burden on the prisoner. Ugh, you complainer, do you have a better idea?

0:30:25 Matt: I know. Yeah.

0:30:28 Thomas: God, and if they can't, come then up with a better Idea, because they're a doctor or something, well then stop complaining. Is that essentially the test?

0:30:25 Casey: Matt,

0:30:28 Matt: Right. How would you like to die? Right, right. And we're not going to give you the diazepam because it doesn't matter if you have a little pain. A little pain is normal. That's fine. We just can't have a substantial risk of severe pain.

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0:32:19 Casey: Looking at Gorsuch's test and just the general idea of originalism, it actually, wonder, does, what you think about this. Does you wonder if there's ever a possibility that death the penalty could be found unconstitutional by a court that's applying this type of standard? Because it sounds like almost nothing is going to be cruel and unusual, even

0:32:35 Thomas: No, that the point I was going to make. Why is it that these assholes can only understand evolving standards when it comes to the Second Amendment? They can only understate, well, okay, well sure, it said right to bear arms, but like we have to take that concept and then extrapolate it to now and say, well yeah, you can have a tank and whatever, because you know, right to bare arms. What aren't you getting about in French? And they don't do the thing of like, well yeah, what did that mean back then? Like back then it meant you had had maybe, well, first off, there's the whole well -regulated militia, we'll forget about all that. And maybe you had the ability effectively to wield a weapon that was so, effective and could fire so musket balls at a time. Then they're totally good, it seems to me, at being like, well yeah, but apply that to today. You can apply that today and just translate it in and you're good. But when it comes to this, I know. Is that a valid point to make? What do you guys think?

0:32:36 Matt: Right.

0:33:21 Casey: Yeah,

0:33:21 Matt: That is fine. Yeah, I really think that, I mean, why should it have to be severe pain? Like if that was a standard back then, if they were just trying to basically get people killed and get it over with and, you know, hanging was fine because it snaps your neck and maybe. Maybe there's some terror beforehand, but it's not that painful. I mean, we don't really know. Nobody's been able to report back. But just, I yeah, no, you're right. I mean I think that the evolving standards of decency in certainly everything around the scientific and medical community here would say as little pain as possible. Like if possible, no pain. But that's not even really a factor. They specifically find in here that it's normal to have some pain in execution. There's nothing we can do about it.

0:33:56 Casey: I

0:33:56 Thomas: Just blows my mind. I think the answer to your question is this isn't a way to do jurisprudence. Like, originalism is bullshit and shouldn't be how anyone decides anything. That's my answer to you question.

0:34:05 Matt: This might come up again.

0:34:06 Thomas: Yeah. Because you're right. I mean, if you're using that standard, I don't understand how the argument that they make that? Well, OK, well, then we have to have a another Like if you if you don't like it, then every time the standards change a little bit, you got to do clarifying constitutional amendments, I think. Yeah

0:34:07 Matt: Yeah. Yeah. Yeah.

0:34:22 Matt: I don't know what you're complaining about, because we're not literally disemboweling people, so it's fine. That's where we're at. And there's one more thing, actually, one more point that he makes that's relevant to what you were saying. The Eighth Amendment prohibits states from dredging up archaic punishments, cruel or perhaps inventing new ones, but it does not compel a state to adopt untried and untested methods. And that's how we get into nitrogen hypoxia. But it's interesting he mentions that we can't dig up the old ones. Maybe we can invent new ones. But we'll leave the door open. One.

0:34:45 Thomas: What sorry and matt just because we're talking about a lot of of cases here. So this was Gorsuch. It was obviously recently because it's Gorsucha. And so what exactly was that case finding? What did that case hold?

0:34:55 Matt: This is essentially the latest version of the Bayes-Glossop test, which is looking at when a prisoner is trying to propose a different method of execution because he's saying the one that the state is doing is too cruel and unusual. And in this case, the reason that I'm using this as a lead up is that the defendant was proposing nitrogen hypoxia as a less painful alternative to pentobarbital. And Neil Gorsuch was basically, kind of ironically, based on what happens later, Neil Goresuch says, "I don't know, this is untried and it's untested. We know what pentobarbitol does to people, but we don't what nitrogen hypoxia does. So you're fine. Just go ahead and take the pentobargitol." Kind of the outcome there.

0:35:26 Thomas: But what an interesting standard you just laid out where it's like, well, you can't up old ones, can't invent new ones, but for no reason that I could think of that would make any sense, as long as you're doing it now, it's fine. Then also not now.

0:35:39 Matt: The real victims, according to Gorsuch, are the people of Missouri because it's taking too long to kill this guy. That's how he concludes it. And if we keep messing around here and arguing about what kind of way we want to kill him, then we're not going to ever kill him. And the long delays that now typically occur between the time and an offender is sentenced to death and his execution are excessive. He actually quotes the dissent from that to make that point. And that's what he's concerned about from

0:35:59 Thomas: The idea that, like, it's some great cost. Like, the burden we really need to worry about is not the guy we might painfully kill, barbarically, but, like, I just, I'm a little impatient as a citizen, and I'm like, "God, have they still not executed that guy? That really is a violation of my rights as a citizen." Yeah.

0:36:16 Matt: In Missouri are tapping their wristwatches. Let's get it done. Yeah." So, let's talk about nitrogen hypoxia, because that is a really central thing to this case. And, it's new. It's completely new. And there's only been one execution done that way, and it was done on January 25th, as we're going to discuss. Alabama, Mississippi, and Oklahoma have all adopted it as a secondary method. So, basically, as a backup when lethal injection doesn't work. Alabama has carried it out, but I did find a Scientific American article. I wanted to just mention a few science facts here because science has been badly lacking from this.

0:36:17 Thomas: I'm So sorry, can I clarify that point you just made? As a backup, does that mean like literally in the same execution, if they're like, well, that didn't work, go right into this, or does that means like if the other one's unavailable because of the drug shortages, or what?

0:36:51 Matt: As going to talk about, there are a number of times when lethal injection for one reason or another does not work out. Think that the idea is we just stall this and we come back.

0:37:03 Thomas: Wouldn't you just be like, "We'll just try do lethal injection again." It's not like that it's would mean this guy's immune to lethal injection. Why would the, on the second go around, why would it be like, "Well, let's do a different one on this."

0:37:13 Matt: Well, that happened in this case. Sometimes you can't find a vein, sometimes there's a medical reason, tumor or something like that. Casey, what were you going to say?

0:37:18 Casey: Oh, no, I was just going to say exactly what you just said, which is it happened in this case. And the had to do with them not being able to comply with the execution protocol. And it did have to do with them not be able to find a vein for the second, for the second line That was required under the regulations. And, you know, and I wasn't aware of this until this case. But apparently, you there's a set time period by which the execution has to be completed. And then the death warrant expires on it's not completed by that time.

0:37:29 Thomas: Oh, yeah.

0:37:36 Matt: Yep.

0:37:41 Casey: And so they believed

0:37:41 Thomas: Yeah. I go back to the DMV and that's the whole thing.

0:37:44 Casey: So they believed they weren't going to be able to complete the execution by the time the warrant expired. That's why they called it off.

0:37:49 Matt: Sick because wouldn't have time to do two different methods because they only have so much time to it. I just want to talk about the the Scientific American article. From September 2022 by Dana Smith. And it mentions a few important things that I think that are worth considering as we talk about this as a method of execution. First of all, nitrogen hypoxia. This goes back to something we were talking about, Thomas, a while back about the ways that we talk About things. Nitrogen hypoxic doesn't mean anything. It is a meaningless expression because hypoxin means low oxygen and nitrogen means nitrogen. Really should just be called nitrogen gas execution. So there Jose Zivet is a very famous expert in death penalty cases. He said that nitrogen hypoxia is a made-up two-word expression meant to sound like you're on the bridge of the Starship Enterprise. And idea being that it's like a fancy phrase, it must mean something, and it sounds a lot better than nitrogen gas execution.

0:38:34 Matt: So I'm going to keep calling it nitrogen gas execution.

0:38:19 Thomas: Yeah. Yeah, well, I will say I've, I've heard of this. Okay. Through some of the stories read about, with you dignity and all that. I one of the ways is usually substituting something for oxygen so that you don't feel like you're, struggling, you but then your brain just kind of turns off because you're not getting the oxygen you need. Was And under the impression that that was like a painless way to go. Is this different than that in some way?

0:38:57 Matt: Now, well, part of the problem is that when you're doing it to somebody who doesn't want to have it done to them, it's a little different. And so the is that we have very little data on how people die from nitrogen hypoxia, but it seems like it could be a pretty peaceful way to go. And so I want to be careful how I say this, because I'm not going to say it's okay. There's still a lot that we don't know yet. There is an argument scientifically to be made, because essentially what's happening, I understand it, is that basically just your lungs filling up with carbon dioxide. And we don't trigger the kind of alarm and panic with this kind of thing, with nitrogen filling us up, that we do with other things. Nitrogen is 78% of the air we breathe already.

So it's not that much of a stretch, I guess, from what I understand, that it doesn't necessarily have to be that much of a problem. But I do want to talk about how this got to be policy, because this is appalling. Idea from nitrogen hypoxia, they up with this in Oklahoma in 2014, and it was a guy, a state rep named Mike Christian. So of course, he's a very good Christian and is trying to kill people as quickly as possible.

He's known, I just want to point this out because we have to point this out at some point, because it's such a common position to have. He adamantly opposes abortion and adamantly supports the death penalty. He's

0:39:13 Thomas: Sure. Sure.

0:39:59 Matt: Threatened to impeach judges who delay executions. So you would think that Mike Christian would kind of look around in the scientific community, the medical community, and try to figure out maybe if there's a more peaceful and easier way. When you can't get these drugs, as we're talking about, maybe we can do it a different way. But no, goes to a white paper that was written by a criminal justice professor.

There was not a scientist involved, just a couple of professors that wrote this paper saying, maybe we should try nitrogen. They had hearings in the Oklahoma legislature in which there was no scientific evidence presented because there is no medical research on death by nitrogen gas, because it's really only ever happened by accident to people like pilots and scuba divers, right? And you can imagine how those things would happen in those situations.

Like I said, there's some reason to believe that it could be peaceful in some circumstances, but we don't have any firsthand experience to if this is going going to be agonizing or not. I just think it's appalling. And this is not unusual, I guess, but you can have public policy that is very directly a medical issue with no scientific or medical evidence or testimony presented. I just...

0:40:54 Thomas: Well, I think we should just be honest about what's going on here. I don't think that most conservatives particularly care. I think they look at things different. They have a fundamentally different worldview, which is if you deserve it, then kind of whatever their view. I I thing they think the bad guys deserve a lot punishment. And so for them, it's just kind of checking the boxes taxes to get away with being able to do it. I don't think they're particularly motivated to find ethical ways to kill people.

0:40:54 Matt: Yeah. Oh, sure. Yeah.

0:41:18 Matt: Can't disagree. This came up in Oklahoma as a secondary method of execution. It was never used, but it was put on the books. Alabama first considered it. And of course, we're going to be talking about Alabama now, after a botched execution in 2018. And I have a quote here from his lawyer, and executioner spent nearly three hours jabbing my client Doyle Lee Hamm's groin, ankles, and shinbone before they released him from the gurney, and he stumbled off in excruciating pain. At the time, he was suffering from terminal cancer, and his veins were compromised.

Needling his groin during failed attempts to reach the femoral vein, they apparently hit his bladder. A large Amount of blood soaked the gurney near his groin. Survived, but ended up dying of cancer in prison. And that sounds a lot better, frankly. Is why Alabama had to think about a secondary kind of execution, because this went so badly. And it's had so many different botched lethal injections at this point. Is just amazing. Reading that paragraph out, thinking that anybody who is in a position to review this could think, well, that's not cruel or unusual. It happens. Thing that could happen.

Alabama enacts the statute and authorizing execution by nitrogen hypoxia. Inmates are allowed to elect it within 30 days of the sentences becoming final. But the problem is it never actually implemented any protocols for this. And that's a really important part of this. You want to make sure if you're going to have a new kind of way of killing people that you know exactly how you're going to do it.

So they scheduled convicted of shooting three people at work in 2000 for execution in September of 2022, but the state had to admit a week before they were going to kill him that it wasn't ready, these protocols weren't there yet, and that they would have to go forward with lethal injection.

0:41:18 Thomas: Oh my God.

0:42:45 Thomas: Huh?

0:42:46 Matt: The Supreme Court allowed that because lethal injection, but the state then had to call off that execution because they couldn't find his veins in time. This is a pretty common issue, apparently. So Miller is still slated to die by nitrogen hypoxia. He's still on the docket for this. Kind of the state of nitrogen hypoxia. That brings us to Kenneth Eugene Smith. So reason we'RE talking about this is Kenneth Eugene was executed January 25th, 2024. He was convicted in 1996, of murdering Elizabeth Sennett, a pastor's wife. It was a murder for hire. Pastor, I guess, is the second good Christian in this story because he offered $1,000 each to Mr. Smith and another man to kill his wife. He took his own life a week after the murder. And

0:42:54 Thomas: Yeah. A pastor not following their own worldview that they espouse. No way. I Don't Believe It. Impossible.

0:43:27 Matt: That's the most shocking part of the story, obviously. But hired hit man was executed in 2010. And so Mr. Smits' lawyers did their best at his sentencing, that he said they'd been neglected and deprived. They provided lots of mitigating factors.

0:43:32 Thomas: Wow. How old was he?

0:43:42 Matt: Was 22. Excuse that's a factor too, 22.

0:43:43 Thomas: 22. So you're saying the that actual person who really is responsible, which is this pastor, you're saying he, he committed suicide after, okay?

0:43:50 Matt: Did not face justice here, but the two men who were paid to do it executed. The jury was convinced by these mitigating sectors. The fact that he's 22, that he had bad childhood, he had no significant criminal history before this, and he'd done well well in jail. In Alabama, this is what I want to talk about briefly now. Jurors voted for a life sentence with no parole. And that would usually be the end of it. That's the sentence. In Alabama they had a very unusual way of doing this.

Majority can impose a life sentence under Alabama Code Section 13A546. Minority can impose the life sentence, but 10 must agree for death. The jury has the right to look at the facts and just sort of determine if there are aggravating factors. And if there are aggravating factors, if there's mitigating circumstances and if they find that there's mitigating circumstances, even if it was an aggravated crime, they can still return a verdict of life.

But if the jury determines that one or more aggravated circumstances don't outweigh the mitigating circumstances, then that's it. They return a verdict of death, but it's an advisory verdict. Alabama is the only state that did it exactly like this, but there were four states, none of them fortunately can do this now, four states in which the judge could overrule the jurors and impose a sentence of death. That's to begin with, but the way they did it in Alabama was especially bad.

But just to note that Delaware, Florida, and Indiana at some point had this kind of a law where the judge could overruled the jury sentence and impose death. In this case, the judge decided that they were aggravating factors. I mean, the murder was particularly brutal and it was a murder for hire. He decided that was a factor as well. The jury's recommendation is not binding on the court. And Alabama is the only state that ever imposed something like this where there's no standard for how the judge reviews it.

0:43:50 Thomas: Yeah. Hmm. Yeah.

0:45:25 Matt: So Florida, for example, and that the judge has to give great weight to the jury's decision. I'm not sure exactly what that means, but yeah, you have to take it seriously, give it a lot of credit. I don't know. You can give it all the points off the bat. The Supreme Court reviewed this in Harris v. Alabama in '95, they reviewed this exact thing about whether or not override function that the judge has should require a standard. And Harris was asking, he wasn't challenging the override function, but he was asking the court to hold that there should be this great weight review standard so that there's at least some way that the judge has some kind of baseline that the judge's working from.

0:45:31 Thomas: How could you ever argue that I don't understand I feel Like this just shouldn't exist at all, is There any question as to, like, is feel like the jury of your peers is a pretty constitutionally thing, isn't it? Isn't that like pretty somewhat Somewhat foundational, but To have a thing that's like, well, if they're not mad enough at you, then we need a judge to come in and be like, "Yeah, no, you need to die."

0:46:00 Matt: No, it's in there somewhere. Yeah.

0:46:15 Thomas: That seems weird. How does that even work?

0:46:14 Matt: Yeah, Yeah. In his dissent, Justice Stevens wrote that this is pretty close to double jeopardy, right? The state gets two bites.

0:46:22 Thomas: Yeah, that's a good point.

0:46:24 Matt: That death sentences imposed by judges over contrary jury verdicts do more than countermand the community's judgment. They express contempt for that judgment. I can't argue with that. The on this, I don't know, I was a little apologist reading all of this, but Justice O'Connor wrote for an 8-1 majority, that no standards are required. They declined to impose the great weight standard. And they said, essentially, that judges have free reign in Alabama to overrule the jury verdict and impose death.

0:46:40 Thomas: Wow. I don't understand. First off, I don't know how much that matters because literally how would you even say that a judge didn't put great weight to the decision? Like if all of these are going to be cases where the judge ends up going the other way, otherwise you wouldn' t have a case to begin with. Would you ever use to be be like, but that judge didn't give great weight to it though. Like he overturned it without great weight. I guess, would you try to point to the facts and be like he didn't consider mitigating circumstances? This great weight standard seems useless to me. I'll be honest. I don't understand how it would ever be usable.

0:47:20 Casey: Think it's probably similar to an abuse of discretion standard, which is really common. Right. So that's my guess is that it probably if an appellate court, I agree to be very difficult. And it's very difficult with the abuse of discretion standard to overturn something a judge done in their discretion. Right. But I guess is, is the way that would be applied would be if something was so outrageous, if a judge took away a jury's verdict and it just seemed just totally arbitrary, which isn't the standard, to be clear. But that's my guess as to how it would play out, right? Like, if, for example, jury the had found that there are all kinds of mitigating factors and, like, one aggravating one, and objectively speaking, it just wasn't that aggravating, then maybe that would be the standard, maybe that Would be the situation.

0:48:01 Thomas: Right. I don't know. I'm not sure. I'm not sure my question is though that wouldn't that you just be using the actual facts of the case to evaluate that? You'd be like well, look at the actual mitigating factors. I don't really understand how giving, like, again, definitionally, this will involve a judge overturning the jury's decision. So I don't really know how you ever do that. And and the reason you did it was because you didn't give enough weight to their decision. Don't even understand how that would be a concept that would make sense separate from looking at the facts of the case and saying, well he should you have decided a different way I

0:48:07 Casey: Yeah well think that that probably would be part of it. I think some of it might also just be, if, assuming the judge, I'm assuming the charge is making written findings of fact, I would hope in a situation like that, whether or not they've appropriately justified the amount of weight that they've given to the jury's decision is my guess. Um, that is, that's just a guess

0:48:48 Matt: Makes

0:48:42 Thomas: They justified themselves okay so as long as he would say some magic words, they're like, well I really considered their decision, but here's my reasoning, then it's probably fine. Yeah.

0:48:51 Matt: You the words great weight and you're fine. Just make sure you get those in there.

0:48:58 Thomas: That's what it seems like, yeah

0:49:02 Matt: Makes a point though, that this really should only be used in the other direction. If it's going to exist, there should only been a judicial override to override a jury verdict of death. It doesn't seem reasonable, right? And I can see that as a safeguard, but essentially, this is where we're at. And it took until 2017 for this judicial override to be killed by the legislature. And that's what it took.

0:49:08 Thomas: Yeah that makes sense to me oh

0:49:12 Casey: Yes.

0:49:20 Matt: No court would do it.

0:49:19 Thomas: Okay well that's good and I do want to clarify just one more time that I was arguing against the standard that they said you didn't even need that. Like, right, the decision was, no, you don't even need this great weight, whatever bullshit that is. You don't Even Need That. And my point was only, that isn't even anything. So that's all kinds of bad, in my opinion. But at least they got rid of that in 2017.

0:49:28 Matt: Right. Exactly. Exactly right.

0:49:35 Casey: Yeah.

0:49:40 Matt: One more kind of bad to throw in just as a kicker here that Alabama, of these states that had a judicial override, was the only one where judges were elected. So think about that for a minute. You could run on your execution record. You could say, I overturned all these jury verdicts. 21% of the people sentenced to death in Alabama as of 2011 had been sentenced through judicial override. That seems like a few too many to me.

0:49:42 Thomas: Oh, okay. Yeah. Yeah.

0:50:00 Thomas: That seems like a lot. Wow.

0:50:03 Casey: Yet another reason that, in my opinion, that electing judges is not perhaps the best idea, but I guess that's a separate conversation.

0:50:11 Matt: Yeah, especially in a place where they can kill people. Speaking of, that brings us to Kenneth Eugene Smith. First trial, I should mention, this isn't really, this is incidental, but his first trial in 1992 was actually overturned because there was an issue with exclusion racial of jurors. Eventually in 96, this is upheld. He has another trial and he's convicted and has been sitting on death row for all this time. And he's scheduled in 2022 to be killed by lethal injection. And the New York Times here, I'm just going to read very quickly about what happened. Alabama again cancels an execution over delays inserting IV lines. Alabama called off its plans to execute a man on Thursday after a whirlwind few hours in which the Supreme Court allowed the execution to proceed, but prison officials determined they did not have enough time to kill the man before his death warrant expired at midnight. There's a sentence you can read in the United States of America that the state didn't have enough time to kill a man.

0:50:58 Thomas: That's why, again, mourning people are just more rewarded in the society. If you get the execution started earlier, wouldn't have had a problem.

0:51:06 Matt: Started it after 10 p.m. That seems like part of your problem, but yeah.

0:51:08 Thomas: Jeez. Are they, me? About last minute. Holy shit. I would never get an execution done, but I would have thought these bloodthirsty assholes would be more diligent about it.

0:51:19 Matt: Well, we should make you an executioner in Alabama then. That's seems like the answer.

0:51:21 Casey: I would assume that they would all be mourning people for sure, actually. Actually.

0:51:25 Matt: Yeah. Happened in many other executions, they could not find a vein that would work. And they tried to get these lines into several locations, no success. And you can imagine the horror of being strapped down, waiting for this to happen as people are jabbing at you. This was the third consecutive botched execution at that point in Alabama. I mean you'd You'd think at some point you'd just, I don't know. I don'T even know what to say about it, but

0:51:47 Thomas: Almost want to ask who's doing like, is it all because of the veins of of the people being executed? Or is there an issue where the people who even are willing to do this, maybe it another case where you're not to get maybe the talent pool of medical professional that you would if you weren't killing someone? Is that an issue? Although I feel like there's so many conservatives in this country, maybe that's not an issue. I don't know.

0:52:08 Matt: I Think it's because of the high standard of just making sure. First of all, you have to get two lines in, and so you have to make sure, and they have to be both done just right so that it's not going to go wrong in the middle of things. Know, it's my guess, but this does seem to happen a lot. Smith reached a settlement with the state after this in which they agreed not to pursue lethal injection because it didn't seem to be working for him, and they would use instead a novel method of execution, nitrogen hypoxia. Yeah. Goes back and forth, the Supreme Court. Alabama essentially tells the Supreme Court that they weren't ready. They hadn't finalized the protocols as of 2023. Thomas and Alito dissent and they say, "Oh no, it's no problem. Go ahead." But the rest of the court agrees that maybe they're not ready and they should send this back. Thomas and Alito were bloodthirsty, of course, on this one as

0:52:47 Thomas: They're like, we're good with it handshake with deal on this execution. Like we don't need to see any paperwork just

0:52:50 Matt: You got it together. It was, by the time we reached January 25th, 2024, Alabama had only finalized these protocols five months earlier. So at that point, Smith objected and said, this is not ready for prime time. I can't do this. This goes back up on January 25, 2024 back up to the court. And Thomas denies it in a very terse order, just saying the petition is denied. But Sotomayor writes a very good dissent. And Casey, actually, if you want to read this one,

0:53:14 Casey: Sure. So Sotomayor says in dissent, Alabama plans to execute Kenneth Eugene Smith tonight by nitrogen hypoxia. That method is untested. Smith is the first person in this country to ever be executed in this way. The details are hazy because Alabama released its heavily redacted protocol under five months ago. What Smith knows is that he'll be strapped to a gurney. He'll wear a nitrogen -supplying off the rack mask which the state has not fitted him or even tried on him. The nitrogen is flowing into the mask, his executors will not intervene and will not remove the mask even if Smith vomits into it and chokes on his own vomit.

0:53:45 Thomas: My God.

0:53:47 Casey: Twice now, this court has ignored Smith's warning that Alabama will subject him to an unconstitutional risk of pain. The first time Smith's predictions came true. He survived to describe the intense fear and pain he described during Alabama's torturous attempts to execute him. Time, he predicts that Alabama's protocol will cause him to suffocate and choke to death on his own vomit. I sincerely hope he is not proven correct a second time. With deep sadness, but commitment to the Eighth Amendment's protection against cruel and unusual punishment, I respectfully dissent.

0:54:15 Matt: A good descent, I just wanted to get that in there, well.

0:54:16 Casey: It is a good dissent, mm

0:54:18 Thomas: Yeah. One thing I noted, heavily redacted. Is that what you said? Like, it's a state secret, like how we're gonna do this. Are you kidding me? Why would that be?

0:54:23 Casey: -hmm, yeah, just so they, yes, is that they, any time prior to this execution, I don't believe his had access to an unredacted version. And perhaps I'm wrong about that. But from the reading I did about it in days leading up to it, I don'T believe that they had access To it. And like you said, why?

0:54:42 Thomas: Redacted? What is the... What? What? I don't even understand.

0:54:43 Casey: Yeah.

0:54:46 Matt: A doctor might read it, you don't want that.

0:54:48 Thomas: Yeah. Oh, it's HIPAA. It's got to be HIPPA. That's what it is. Redacted?

0:54:50 Matt: No, it's just, I mean, somebody's gonna notice it's bad, it's not good. Let

0:54:54 Thomas: The whole point of it is that, so I guess the public would have some idea of like, is this a good idea or not? What secrets, valid secrets would there be in there? I don'T, truly that blows my mind.

0:55:03 Matt: Alone the Supreme Court. Yeah. I mean, is saying go ahead and do this? I haven't seen the whole thing, but it looks fine to me, so.

0:55:12 Casey: Know if perhaps it could be, and this, this wouldn't be the case with regards to the nitrogen gas, I wouldn't think. With to the lethal injection drugs, I know they were redacting those protocols in part because they didn't want to reveal the source of where they were getting the drugs from, which is a problem in and of itself.

0:55:27 Matt: Let's talk about the only hero in this story very, very quickly. His spiritual advisor, Jeff Hood, and I sent you a clip, Thomas, we can integrate into this, but really is the only hero here because he fought hard to have the right to be in the room. He was with him the whole time. And this is a man who routinely attends executions. I can't even imagine what he's been through, just being with these people. He's talking about what it's like to be in the last five minutes of somebody's life and just to be there with them. But he had to sign essentially a waiver, because again, nobody had done this before. He wanted to to be in the room, and they made him sign a waiver saying that in the highly unlikely event that the hose-supplying breathing gas were to detach, an area of free-flowing nitrogen gas could result, creating a small area of risk, etc., etc. So he himself was at risk just by being in the room, because we didn't know what was going to happen. Because as Sotomayor said, this is an off-the-rack mask. They didn't fit in his face.

0:56:13 Thomas: Rack? I Nordstrom?

0:56:15 Matt: Question.

0:56:15 Thomas: I don't, where, okay. Okay.

0:56:18 Matt: Presumably some sort of army surplus store. I don't know. But yeah.

0:56:20 Thomas: Yeah, sure.

0:56:20 Casey: Yeah, it's a fair point.

0:56:23 Matt: So very quickly, I mean, again, this execution did not will go well. I don't need to get into the details. I think we should play the Jeff Hood clip for that. We can just do that.

0:57:38 Matt: And then just by contrast, let's just play the very very first few seconds of the Attorney General's statement.

0:57:39 Thomas: Jeez. Uh okay. I'm still digesting that because that was, Wow.

0:57:44 Casey: Yeah.

0:57:45 Matt: Yeah, sorry, that was a lot. That's a tough one.

0:57:47 Casey: It's heavy.

0:58:00 Thomas: I Christ.

0:58:00 Matt: Isn't that, that's all we need. He goes on to say it was a textbook execution. I don't know what kind of textbook he's talking about, but sorry.

0:58:06 Casey: He's writing the textbook.

0:58:08 Matt: Yeah yeah.

0:58:08 Thomas: That is, I was going to say, after the first one, there anyone in the world who thinks that the guy who took a thousand dollars to kill someone when he was 22 is some sort of risk to do that again? Or, like, there's gotta be some element of needing desperation, of needing money, to agree to do something like that. I would think it

0:58:26 Matt: Then on top of that saying this worked out so well, where would it help you do it? It was if it's like a new kind of way of counting ballots or something, right? Or you're building highways. It's sick.

0:58:30 Thomas: Unbelievable. It's truly dystopian. It's just like,

0:58:32 Casey: Yeah.

0:58:36 Matt: Yeah, that's awful.

0:58:36 Thomas: It went horribly. And then you, get you on a press conference being like, guys, this is amazing. We'll ship the off the rack mask. We'll tell you the rack we got the mask from.

0:58:45 Casey: Yeah?

0:58:46 Matt: No, it's the whiplash between Jeff Hood explaining exactly what he had just seen, and then this man stepping up to the podium and saying, this went great, let's do it everywhere.

0:58:50 Casey: Yeah.

0:58:53 Thomas: Again, fundamentally, they don't care. I really don't believe they care .I think they justified themselves. This was a bad guy. He did a real, real, real bad thing. So they don't care. Mean, it is a way of looking at the world that I I can get how they look at the world like that. It just, to me, it's fundamentally wrong. I just don't, morally, I just really don't accept it.

0:58:55 Matt: Sure, no doubt. I absolutely agree.

0:59:10 Casey: Especially because of the fact that life without parole is an option, right? Guess that that to me is kind of where I would want to end in some ways, is that when it comes to, I, because I think it's, you know, it's important, obviously, when we're talking about homicides, to to keep the focus on the victims, right? The victims are the reason that that we try people for for murders at the end of the day, right?

Because we want to send a message to society that that it's not okay to do things like that, and there there is an element of retribution to it as well. And we wanted to deter other people doing from it. When it comes to murders in general, right, as a society, for the most part, except for juveniles, you, we've decided that we're not going to try to rehabilitate people who commit the ultimate crime. But the problem with the death penalty, I think, there's many problems with it.

But one problem is the degree to which it does, in my opinion, take the focus off of the victims, right? When somebody is sentenced to life without parole, I can tell you with certainty certainty that you don't hear a whole lot from them, unless you're the unfortunate person or people that received their, you know, their many pro se motions over the course of the years. That's not the average member of the public. It's not like every time they have a death warrant signed, they're back in the news again, and they're back at the Supreme Court.

0:59:13 Thomas: Yeah. Yeah,

1:00:11 Casey: And, you know, the focus is back on them, because we're turning them into a victim. Are as a state, right, like a meaning state, like as a nation, when we execute people, we turn them into victims. And my personal opinion is that that is the opposite of what we want to do when comes to people who have committed murders.

1:00:11 Thomas: Right,

1:00:27 Matt: Yeah, you can't hear what Jeff Hood said and not, I mean, I'm still affected. I'm still emotional about what I heard just now. Is awful.

1:00:34 Casey: We've turned that person into a victim. And So nobody really is thinking about he did, or about his victim, because of the fact that the state has made him into a symptom himself. And I just, I personally, you know, I would defer, obviously, to people who've had this happen themselves, although I would note that not all of them come out on the side of the death penalty, and many of them don't. And I would also note that the family members in this case, know, they you actually were pleased with the way the execution went. But as society, I I don't think that this is good public policy for a number of reasons. And that's one of them.

1:00:36 Matt: Yeah.

1:01:00 Thomas: Yeah. Never, never thought about that. I, it's so, I'm so glad you said that. I I can't think of a time where I've heard about some ongoing suffering or injustice that a victim's family has been vocal about because someone got a life without parole sentence. You sure that's expressed somewhere? Maybe, maybe somewhere they're like, yeah, I wish he was dead, but like, there there is a finality to that. And then they at least take that, like, without parole, it's settled, short of appeals, I guess. But like, that's a final sentence. It's dealt with, you could move on versus the ongoing death penalty, death row stuff that just goes on forever, reopens the wounds. I'd never really thought about it from that perspective. That's interesting.

1:01:27 Casey: Mm hmm. Yep. Yep, yep.

1:01:46 Matt: I want to end on some hope here. Has been a heavy episode, but I do think that the future of the death penalty... I mean, obviously, most Western nations have abolished it, but the future is looking better in the United States. There's a 2023 report from the Death Penalty Information Center. I just want to share a few things from it. We're actually reaching a point, there's a record high, it's only 50%, but it's a high, where Americans now believe the death penalty is applied unfairly, which is a start. At this point, there's only a 53 % majority that favor the death penalty at all, which we're getting there. There, opposition is at 44%. Guess, Casey, if you want to talk about where we're at with the states themselves,

1:02:19 Casey: Mean, I guess I would just say that, the fact that when we started law school in 2002, or when we graduated law school in 2005, I believe there were 38 states that had the death penalty and now there are 27. The also two territories, the District of Columbia and in Puerto Rico that have that have also outlawed the death penalty. So, I mean, I think that things are headed in a very different direction than they were in the '70s and '80s.

Most movement on the death penalty is going to have to come from the state legislatures because of the that the Supreme Court appears to be adhering to this idea of originalism. And as Gorsuch points out in that 2019 decision, founders, which is all we care about, apparently, they thought that the death penalty was fine.

I think that the is, is that at some point, under some court, if a majority of states no longer have the death penalty, may well be that a future court maybe does find that it is unusual, at least maybe cruel and unusual, and violates the Eighth Amendment at point. Don't think under this court, but you never know. But I think things are headed in a better direction.

1:03:17 Thomas: Got a long wishlist for when we can actually get a court that isn't horrible, But this is on it, you know, like it is on it. Yeah.

1:03:21 Casey: Yep, it's on it.

1:03:24 Thomas: One of the many reasons we need to get enough people elected that believe in, in opinion, abolishing the filibuster and packing the court. That's my view, but you don't have to comment on that.

1:03:24 Casey: Yeah.

1:03:37 Casey: Maybe.

1:03:38 Thomas: Sure.

1:03:38 Matt: I will point out too that, I mean, I don't want to say only, but only 24 people were were executed in the United States last year, and fewer than 50 were sentenced to death. Now, again, that is way too many, but we're getting to record lows on death sentences. So

1:03:49 Thomas: Yeah, that does sound lower than any number I can remember hearing about with that. So that's somewhat encouraging.

1:03:50 Matt: Yeah, no, and the chart is looking good on that. And we have a president at this point. I'd almost forgotten this, but Biden did run and was elected on an idea that he was going to have a moratorium on death sentences in the U.S. federally. And I'm not sure if that's true. I don't know. We're going to talk about the federal death penalty another time. Maybe we can preview that. But it's been a little variable, but Trump executed 13 people in his last six months in office. Those are the first federal executions in about two decades. So, I mean, this is at least going the other direction, but I'm hoping that as public opinion continues to go in the direction against it as more and more states outlaw it, that maybe we'll actually get to the rest of the world. We'll catch up.

1:03:55 Thomas: Yeah? Yeah.

1:04:02 Casey: Yeah. Yeah,

1:04:27 Thomas: Right. Well, a yeah, nice note to hope there. And Matt, Casey, thank you so much for the detailed breakdown on that. That was a horrible bit of news, I'm sure, for many people when came across it almost, I guess, almost a month ago now or half a month. And it's good to get the breakdown of what went on there and so that we can work to try to get rid of that. So thanks for joining me.

1:04:35 Casey: Thanks much for having us. All

1:04:49 Matt: Thank you. All

1:04:50 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.