Lethal Illusion: Understanding the Death Penalty Apparatus |
The justification for the death penalty is that it’s supposed to be the ultimate punishment for the worst crimes. But in reality, who gets sentenced to die depends on things that often have nothing to do with guilt or innocence.
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Historically, judges have disproportionately sentenced Black and Latino people to death. A new report from the American Civil Liberties Union released in November found that more than half of the 200 people exonerated from death row since 1973 were Black.
Executions had been on a steady decline since their peak in the late 1990s. But the numbers slowly started to creep back up in recent years, more than doubling from 11 in 2021 to 25 last year, and we’ve almost doubled that again this year. Several states have stood out in their efforts to ramp up executions and conduct them at a faster pace — including Alabama.
Malcolm Gladwell’s new podcast series “The Alabama Murders” dives into one case to understand what the system really looks like and how it operates. Death by lethal injection involves a three-drug protocol: a sedative, a paralytic, and, lastly, potassium chloride, which is supposed to stop the heart. Gladwell explains to Intercept Briefing host Akela Lacy how it was developed, “It was dreamt up in an afternoon in Oklahoma in the 1970s by a state senator and the Oklahoma medical examiner who were just spitballing about how they might replace the electric chair with something ‘more humane.’ And their model was why don’t we do for humans what we do with horses?”
Liliana Segura, an Intercept senior reporter who has covered capital punishment and criminal justice for two decades, adds that the protocol is focused on appearances. “It is absolutely true that these are protocols that are designed with all of these different steps and all of these different parts and made to look, using the tools of medicine to kill … like this has really been thought through.” She says, “These were invented for the purpose of having a humane-appearing protocol, a humane-appearing method, and it amounts to junk science.”
Listen to the full conversation of The Intercept Briefing on Apple Podcasts, Spotify, or wherever you listen.
Transcript
Akela Lacy: Malcolm and Liliana, welcome to the show.
Malcolm Gladwell: Thank you.
Liliana Segura: Thank you.
AL: Malcolm, the series starts by recounting the killing of Elizabeth Sennett, but very quickly delves into what happens to the two men convicted of killing her, John Parker and Kenny Smith. You spend a lot of time in this series explaining, sometimes in graphic detail, how the cruelty of the death penalty isn’t only about the execution, but also about the system around it — the paperwork, the waiting. This is not the kind of subject matter that you typically tackle. What drew you to wanting to report on the death penalty and criminal justice?
MG: I wasn’t initially intending to do a story about the death penalty. I, on a kind of whim, spent a lot of time with Kate Porterfield, who’s the psychologist who studies trauma, who shows up halfway through “The Alabama Murders.”
I was just interviewing her about, because I was interested in the treatment of traumatized people, and she just happened to mention that she’d been involved with the death penalty case — and her description of it was so moving and compelling that I realized, oh, that’s the story I want to tell. But this did not start as a death penalty project. It started as an exploration of a psychologist’s work, and it kind of took a detour.
AL: Tell us a little bit more about how the bureaucracy around the death penalty masks its inherent cruelty.
MG: There’s a wonderful phrase that one of the people we interviewed, Joel Zivot, uses. He talks about how the death penalty — he was talking about lethal injection, but this is also true of nitrogen gas — he said it is the impersonation of a medical act. And I think that phrase speaks volumes, that a lot of what is going on here is a kind of performance that is for the benefit of the viewer. It has to look acceptable to those who are watching, to those who are in society who are judging or observing the process.
“They’re interested in the impersonation of a medical act, not the implementation of a medical act.”
It is the management of perception that is compelling and driving the behavior here — not the actual treatment of the condemned prisoner him/herself. And once you understand that, oh, it’s a performance, then a lot of it makes sense.
One of the crucial moments in the story we tell is, where there is a hearing in which the attorneys for Kenny Smith are trying to get a stay of execution, and they start asking the state of Alabama, the corrections people in the state of Alabama to explain, did they understand what they would do? They were contemplating the use of nitrogen gas. Did they ever talk to a doctor about the risks associated with it? Did they ever contemplate any of the potential side effects? And it turns out they had done none of that. And it makes sense when you realize that’s not what they’re interested in.
They’re interested in the impersonation of a medical act, not the implementation of a medical act. The bureaucracy is there to make it look good, and that was one of the compelling lessons of the piece.
AL: And it’s impersonating a medical act with people who are not doctors, right? Like people who are not, do not have this training.
MG: In that hearing, there’s this real incredible moment where one of the attorneys asks the man who heads Alabama’s Department of Corrections, did you ever consult with any medical personnel about the choice of execution method and its possible problems? And the guy says no.
You just realize, they’re just mailing it in. Like they have no — the state of Alabama is not interested in exploring the kind of full implications of what they’re doing. They’re just engaged in this kind of incredibly slapdash operation.
“It has to look acceptable to those who are watching, to those who are in society who are judging or observing the process.”
AL: Liliana, I wanna bring you in here. You’ve spent years reporting on capital punishment in the U.S. and looked into many cases in different states. Why are states like Florida and Alabama ramping up the number of executions? Is it all politics? What’s going on there?
LS: That is one of the questions that I think a lot of us who cover this stuff have been asking ourselves all year long. And to some degree, it’s always politics. The story of the death penalty, the story of executions, so often really boils down to that.
We are in a political moment right now where the climate around executions, certainly, but I think in general, the kind of appetite for or promotion of vengeance and brutality toward our enemies is really shockingly real right now. And I was reluctant about a year ago to really trace our current moment to Trump. The death penalty has been a bipartisan project; I don’t want to pretend like this is something that begins and ends with somebody like Trump.
That said, it’s really shocking to see the number of executions that are being pushed through, especially in Florida. And this is something that has been ramped up by Gov. DeSantis for purely political reasons. This death penalty push in Florida began with his political ambitions when he was originally going to run for president. And I think that to some degree is a story behind a lot of death penalty policy, certainly going back decades, and certainly speaks to the moment we’re in.
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I did want to just also touch on some of what Malcolm was talking about when it comes to the performance of executions themselves. Over the past many years, I’ve reported on litigation, death penalty trials, that have taken place in states like Oklahoma and here in Tennessee where I live, where we restarted executions some years ago after a long time of not carrying any out. And these trials had, at the center, the three-drug protocol that is described so thoroughly in the podcast.
It is absolutely true that these are protocols that are designed with all of these different steps and all of these different parts and made to look — using the tools of medicine to kill — and made to look like this has really been thought through. But when you really trace that history — as you do, Malcolm, in your podcast — there’s no there there.
These were invented for the purpose of having a humane-appearing protocol, a humane-appearing method, and it amounts to junk science. There was no way to test these methods. Nobody can tell us, as you described in your podcast, what it feels like to undergo this execution process. And I think it’s really important to........