Exploring Death Penalty and Drug Sourcing

More Perfect. Can we watch Teletubbies for a second? Although that's also horrifying. It is true. Five, two, one. Hey, I'm Jad Abumrad. This is More Perfect, a mini-series that we're just getting going about some of the ideas and the cases that flow through the Supreme Court. And we're going to start the series off with a... with a story that isn't so much a courtroom drama. This one is about an issue that I think everybody agrees is about to land at the Supreme Court again, in a big way. Story comes from reporter Karen Duffin, and it begins with a mystery. Right. All right, so we're starting with Maya, right? With Maya, yeah. Maya Foa. I am the director of the death penalty team at Reprieve. Okay, so Maya Foa lives in London, and when she was about 20... She had graduated from college. She was doing some theater things, but she was having this quarter-life crisis and didn't know what to do with her life. Post-college flail. Sort of. An existential crisis, and I wrote to a couple of organizations and said, you know, please, can I be useful to you? She ends up volunteering at this place called Reprieve. A legal organization that did death penalty cases. Are they like a bunch of lawyers, or what do they do? Yeah, like they do legal work and advocacy. They've been working on the death penalty for years at that point to try to abolish it. I view the death penalty, and I viewed it at the time, as sort of the sharp end of a series of societal injustices. So anyway, she's at Reprieve one night. This was 2010. I was sat in the office. She's sitting there one night, and Clive Stafford-Smith, who's the president of Reprieve, or the head of Reprieve, calls and says, Look, we've got an execution tonight. There's an execution in Arizona tonight. Jeffrey Landrigan is set to be put to death for killing Chester Dreyer. Landrigan was found guilty of strangling and stabbing the man in 1989. So Clive says, there's an execution tonight, and we just found out that the lethal injection drugs that they're going to use... They came from a pharmacy in England. But we don't know which pharmacy because Arizona refuses to release the name. Does anyone in the office have some time, a volunteer, have some time to figure out where those drugs could have come from? And she raises her hand and she's like, I have 30 minutes, you know. And I said, yeah, sure, I've got, you know, I've got half an hour. I didn't know. what I was starting when I started it. So wait, why do they want to find this supplier? Like, why does that help them? Well, the drugs that they want to use in Arizona have to be FDA approved. So if they can find who made these drugs and prove that they are not FDA approved, then they can probably stop the execution. Did they have any reason to think the drugs weren't FDA approved? It was kind of a Hail Mary. So I started the half hour research task that has taken me now five and a half years. And I was trying to figure out with limited information where sodium thiopental could have come from in the UK to get to the US. Sodium thiopental is an anesthetic, and for a long time it was one of the most common anesthetics used in surgeries. But it's also one of the drugs used in lethal injection. I was sort of, I didn't, I don't think I knew the purpose of all the research that I was doing, but I was doing it very quickly. Because of course they had an execution that night. Landrigan is running out of time and options. It was, I was in the UK so it was the evening. Which is morning Arizona time. We had just a number of hours. She's like frantically searching for all these like global medical regulations and you know she can't figure out exactly what the name of the company is. Because there was no way to know at that point. But ultimately she does figure out that there are no UK companies authorized to ship this drug to the US. There was no... effectively no FDA-approved supplier of the stuff. So whatever this mystery pharmacy was, it probably wasn't FDA-approved. And I remember, you know, I emailed that over. I think we either turned it into an affidavit from me or from Clive. They write up a quick affidavit. They send it back to the States. And the execution that night was stayed, like halted. When I went to sleep, it had been stayed. And I just thought, OK, great. You know, we've got a bit of time. The next morning, I woke up. I was couchsurfing. I was in someone's home, and I turned on World Service, and they announced that... Jeffrey Landrigan was executed at 2226 hours. Um, yeah. His final meal was a piece of steak. His last words were, Well, I'd like to say thank you to my family and Boomer Sooner. It turned out while Maya was asleep. The state appealed all the way to the Supreme Court, and late yesterday, the justices, by a 5-4 vote, lifted the stay of execution, allowing Landrigan to be put to death last night. The stay was put in place due to concern over lethal injection drugs. One of those drugs obtained from Britain was not FDA approved, but the U.S. Supreme Court did rule that there was no reason to believe. that the drug wasn't safe. You know, talk about a rude awakening in the literal sense. Now that rude awakening would send Maya on a journey around the world. It would get her called out by the United States Supreme Court. And it would spark a global conversation about the American death penalty. And about those little words, cruel and unusual, that are embedded in our Eighth Amendment. The United States states are admonished to draw near and give their attention. No. All right, back to Karen. So we were in London with Maya, who just learned that Jeffrey Landrigan had been executed. But to understand what she does next, let me just give you a little bit of context. In the fall of 2010 when Jeffrey Landrigan was executed, the drug that they'd used The lethal drug sodium thiopental was suddenly in really short supply. There was a nationwide shortage Because the only U.S. company that still made that drug was having like a manufacturing problem so they had stopped manufacturing or producing this drug. So you actually see these emails between states like, dude, do you have any sodium thiopental? California got help from right next door. Arizona agreed to lend California a cup of death. And there's actually this one great email exchange between the California Department of Corrections. They send Arizona this thank you email. And I quote, you guys in Arizona are lifesavers. We'll buy you a beer next time I see you. You're a lifesaver. Come on. So when Jeffrey Landrigan is set to be executed, Arizona is out of that drug. And this is how they end up at this mystery drug company in London. So after the execution, Maya is doing all this research. She's calling pharma companies. Flying through these documents. And very quickly, she learns that the same company that is sending drugs to Arizona had sent drugs to, like, lots of different states. Georgia and South Carolina, Kentucky. California and various other places. They'd actually become one of the primary suppliers of lethal injection drugs to the United States. Wait, tell me again. Why was it so hard to find out information about this company? So what happens is that anybody involved with an execution, your name is kept confidential. And states have started keeping companies'names confidential, too. I see. So next she starts calling suppliers and distributors, kind of trying to trace, like, how did this drug get to that company, thinking that maybe that'll lead her to it. We had figured out it had come originally from... There was some active ingredients made in Austria. Some of those were sent over to Germany. There were a package put into vials. Those were sent over to the UK. There was one company that has the marketing authorization for the product. They were sold to another one. That company changed. And then they were sent to this company in England. Which she still can't figure out the identity of. But then the real breakthrough came just a couple months after Jeffrey Landrigan was executed. I think there was lots of material coming out at that time. I remember California and the ACLU got a batch of documents. And in one of these batches of documents, she finds an invoice, and this invoice has a name on it. I just remember getting the court documents, and I was working with this very slow internet connection. She was actually in Malawi at the time. I was just sort of, you know, fervently, you know, willing the computer to download the documents so I could start, you know, looking through them and figuring out this stuff. And those were the documents that had the name of the middleman. What was it? Dream Farmer. Dream Farmer. Dream Farmer. Dream Farmer. Yeah. Huh. Yeah. Okay. Yeah. So she's in Malawi, so she, you know, rings up her colleague and says, can you go just look at this place? It's in West London. And it's this residential area, but also like with sort of warehouses, kind of middle class. You have a couple of petrol stations, a couple of cafes, and then this pharmacy, except that it doesn't look like a pharmacy because it's got a big... sign on the front that says, uh, Elgon Driving Academy. Uh, I'm going to go and try and go and knock on the door of the Elgon Driving Academy. This is Nina Parrish. She's a freelance producer in London. It doesn't look too good. Is this, there's a, uh. Tiny little storefront. Well, I can't see any evidence of driving. And if you walk in. Hello. You walk in and in the front it's just this reception area, but in the back... Hi. I'm looking for Dream Pharma. Is that you? Oh, hi. I'm recording for... There's a guy sitting at a desk. His name is Mehdi Elavi. He's in his 50s, grey feathered hair, kind of like square glasses, looks a little bit like William Hurt. He is Dream Pharma. In other words, the company that is helping prop up the death penalty system in America. It's a one-man operation operating out of the back of a driving school. One guy? One guy. And I thought, well, this can't be true. But they're interested in speaking to you about the injections that you supplied to the States. From the get-go I had no comments and I still have no comments. Oh. So what was it like when Reprieve came to find you? Ask them yourself. What was it like for you? Ask them. them for yourself. Okay. Are you still supplying the states with? No. No. It's illegal. Oh, right. Were you aware of that? It wasn't illegal at that point. Oh, right, so then it became illegal. That is correct. Oh. Would you mind me asking how you came to get involved in that in the first place? How they came to find you or you to find them? They found me. They found you. Wow. Were you surprised when they got in contact with you? surprised I don't know at that point I guess it unraveled somewhat I got no further comments my dear well thank you very much for doing that thank you for bringing me to Acton because I very much enjoyed walking around and meeting people around here okay yeah so what do you sell now? It's irrelevant to your case. Well I'm just quite interested as a citizen of London. It's irrelevant to you. You're not in the business that's irrelevant to you. Okay. Okay well thank you very much for your time. Pleasure. And what was your name again please? You know my name if not find out. Okay thank you very much. Pleasure. Bye-bye. Do you actually do driving lessons? It's irrelevant to you. You don't do driving lessons? So once Maya and Rupree found that guy, Medialabi, in his pharmaceutical broom closet of death, The next step was pretty simple. They went to the UK government and they told them, because in the UK it's illegal to be part of capital punishment in any way. We have a law that prohibits export of products for the facilitation of... Capital punishment or torture. It's called the torture regulation. The anti-torture regulation. With this text, unique in the world, the EU is profoundly committed to the fight against torture and the death penalty. And when they realized that the sole purpose of the exports of this drug was for executions, they put an export control in place. And just like that, the supply of this drug is turned off. So the states are just out of luck? Well, I mean, 60% of Americans support the death penalty, so they're not going to give this up without a fight. And so over the next few years, you have like this arms race. Missouri says, we're going to find the drug in Germany. So Maya goes to Germany. And then she hears that a company called Hospira is about to make the drug in. Italy. And so I spent a bit of time there. The Italian government really didn't want drugs made in the seat of the Pope to be used for executions. A Hospira spokesperson said, We cannot take the risk that we will be held liable by the Italian authorities if the product is diverted for use in capital punishment. And then, Denmark. A bunch of states, Florida, Ohio, Alabama, 11 other states, they all decide they're going to get their drug from this company called Lundbeck. Maya calls them up. I remember my first call with them. She was like, did you know that your drug's being used in executions? And they were like, what? It certainly came as a huge surprise for us. This is Anders Schroll, he's vice president for communications at Lundbeck. We have been in the pharma industry for a little more than 100 years, and we are here to save people's lives. This was the complete opposite of the intention of this product. And Maya says that she heard the same thing all over the world, even when states like Nebraska and South Dakota go to India to get their drug. And it's interesting in India. because India has capital punishment. So this isn't an objection to capital punishment. This is, from every company I've spoken to in India, they say, but why? Why would they use medicines? Like, if you're going to kill someone, just kill them. Why are you using something that saves lives to do it? And actually, there's a really interesting story about why we do it that way. That's coming up on More Perfect. I am Jad Abumrad. This is More Perfect, a miniseries about some of the ideas and cases that are flowing through the Supreme Court. Back to our story from reporter Karen Duffin. So we left off with Maya in India and they're wondering why do you guys use drugs to kill people? Why? Why would they use medicines? So what is the answer to that question? Why do we? Well, the answer to that goes back to this guy named Bill Wiseman. It's a terrible thing to have ones. His reputation be based on coming up with a new way to kill people. Bill Weissman was a rising star back then. He loved politics. Weissman died in a plane crash in 2007. This is him in an interview with a reporter named Scott Thompson on KOTV in Tulsa back in 2005. So what's Bill's story? So he grew up, his dad's a minister, his grandpa's a minister, and he's like, I don't want the family business. And he wanders for years. He, by his account, wanders through like two and a half literature degrees. He becomes a poet. He drinks a lot of corn liquor. And, you know, he finally ends up in construction where he starts working with politicians. And he's like, oh, this is my calling. I want to be a politician. So he gets elected to the Oklahoma State Legislature in 1974. And he's opposed to the death penalty. Luckily for him, this had just happened. The Supreme Court declared the death penalty unconstitutional today and spared the lives of 600 men in death row cells across the country. In 1972, the Supreme Court actually abolished the death penalty because they said it was being applied unfairly or haphazardly. In a way that could only be called freakish. So Bill Wiseman is in the Oklahoma legislature. He's like, great, this is not a problem I'll ever have to worry about. The problem is the public is... furious about this decision. Support goes from 50 to 63 percent in just two years. Do you think the death penalty should be reinstituted? Yes, I think so. Absolutely. I'm very much in favor. Highly in favor of it. If we get some law and order into this country. There's people writing furious obeds. I don't think it should have taken it away in the first place. And almost immediately, 35 states rewrite their death penalty laws, essentially saying like, no, no, no, no, we can do this right. And in 1976, the Supreme Court says, all right. If you can administer the death penalty fairly and humanely, you can have it back. So 1972, the death penalty is abolished. 1976, it's reinstated. Bill Wiseman gets elected smack dab in the middle of this. So, you know, in 1976, suddenly there's a bill in the Oklahoma State Legislature about whether to reinstate the death penalty. And Bill has to vote on that. I knew that capital punishment, it just it doesn't work, doesn't make sense. I couldn't see any way to justify it. I also knew that if I'd voted against it from my district, I would run a high chance of getting whooped. Because 80% of his constituents were in favor of the death penalty. After all that wandering, he finally found this job that he loved. I was just having the best time and I didn't want to get whooped. So I was in a real dilemma. What'd you do? The wrong thing. He voted to reinstate the death penalty. For whatever reasons of ego or vanity or need or the motivation to get re-elected, whatever the reasons, I knowingly made a decision when I knew it was wrong. And that's tough. So he's in the legislature and he's feeling like he just sold his soul. And as they're debating various amendments to this law, someone brings up something sort of vaguely about a more humane way to execute people. And he's like, yes, that. And he becomes obsessed with this idea. Oh, it's like a way to assuage his guilt. Yeah. So he rings up some anesthesiologists and doctors and says, I want to find a better way to do this. And they say, we can't help you because, you know, Hippocratic oath, do no harm. Death is a little bit of harm. So he goes to the state medical examiner, a guy named Jay Chapman. And Jay. just sort of like freestyles this one line that Bill literally just sits with a yellow legal pad and writes word for word. It said an intravenous saline drip should be established, into which would be introduced an ultra-short-acting barbiturate in combination with a chemical paralytic. The idea is that these three drugs would allow them to execute people, but painlessly. And right there in that office, with just like this yellow legal pad, they invent lethal injection in America. It would be hard to overstate just how important this moment in this office is, because, you know, the Supreme Court had just given the country back the death penalty on the grounds and the ideal that we could do this right. And what Bill has just handed America. is a way to have the death penalty, but have it be humane. The ideal death penalty. Yeah. So Oklahoma adopts it, and then the very next day, Texas does, and then dozens of states. And since that moment, 88% of all executions have been done by lethal injection. I don't hear the word lethal injection or execution or anything else without feeling a tug, because it's tied to me. I mean, I'll always be tied to it. Which he lives to regret. He thinks that he actually extended the life of the death penalty. And he actually eventually quits his job, becomes a pastor, and becomes a very strong anti-death penalty advocate. How does the man who came up with the recipe for lethal injection, what does he do on Judgment Day? The same thing everyone else does, throw ourselves on the mercy of God, say that we have done wrong and we're sorry. The thing that I find really interesting is that if you look at the modern lethal injection cocktail, it's three drugs. The first drug is supposed to anesthetize you, the second drug paralyzes you, and the third drug is the acid that stops the heart and kills you. And in this drug cocktail, you kind of see everything that we want and need from the death penalty just kind of all mixed together. The third drug, the drug that stops your heart, that's kind of our sense of justice. The first drug, the anesthetic... That's kind of our sense of humanity or kindness. That second drug, the one that paralyzes their muscles. The second drug is purely cosmetic. It serves no medical purpose. The reason it was put into the lethal injection cocktail in the first place was so that if the first drug doesn't work effectively... The second drug will mask any signs of visible suffering and it would be extremely significant because the potassium chloride is this potent acid that people have described as being like fire going through your veins and being burnt alive from the inside. She says just imagine that that's happening to you but something goes wrong with the anesthetic and you become conscious. You have this burning acid going through your body. And you are paralysed, all your voluntary muscles are paralysed, so you can't say, I'm awake, I can feel everything, this is agony. She says that it's that second drug that is both the thing that could make the execution most torturous and the thing that meant that we, the witnesses, the viewers, the public, wouldn't know that it was torture, because we weren't supposed to know that. So does she end up going after that second drug, the paralytic? No, actually, she goes after the first drug, the anesthetic. And it's a total coincidence. This is just the one that had manufacturing problems that started the arms race. But it turns out that this drug, the anesthetic, is the one that's the most constitutionally important drug. Because in 2008, when the Supreme Court ruled on lethal injection, they said, The parties agree that successful delivery of the first drug is necessary to prevent the prisoner. from experiencing severe pain. So if there's no anesthetic, there's pain, which would be too severe and then be, therefore, what, an Eighth Amendment violation? Cruel, unusual punishment? Exactly. So that drug, the anesthetic, is the key drug. But over the past five and a half years, as Maya has whack-a-moled her way across these different companies, she's just made it harder and harder to get. There are now 20-plus companies who have, they've said, We disapprove of the misuse of medicines in executions, and we're going to take steps to prevent it. And that has states scrambling. The drugs used in the 32 death penalty states are now running out. They have run out of drugs. And as a result, what you've seen is that things have gotten very DIY. They're changing and trying new procedures never used before in the history of executions. Prison officials are in a difficult position. You even have the DA start raiding prisons. Because they're essentially using illegal drugs at this point. And so reporters are just starting to pay more attention. And in the middle of all that... He began kicking his feet, lifting his head and his chest off the gurney, grimacing. You also get scenes like this. Clenching his teeth, and in a couple moments he actually mumbled. He would open his mouth and you'd see his chest move and it would go all the way down to his stomach. So it was a clear gasp. April 29th, 2014, in Oklahoma. A man named Clayton Lockett was being executed for murder, rape, and kidnapping. Lockett's execution used a new drug combination whose source is unknown. He was sedated and declared unconscious, but... He started thrashing, clenching his teeth, and... He started moving the arms, his legs. It took him 43 minutes to die. Grizzly, horrific spectacle. And this kept happening. After an hour and 57 minutes, the state pronounced him dead. You had situations like this in Arizona, Ohio. This drug formula is unconstitutional because... People started filing a bunch of lawsuits, and one of these eventually got to the Supreme Court. Case 14-79-55, Glossop... And interestingly, when it got to the Supreme Court... Yeah, I mean, let's be honest about what's going on here. Things got very tense. This is Justice Alito saying essentially, come on guys, this isn't actually a problem. You made it a problem. Executions could be carried out painlessly. There are many jurisdictions, there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide. The states have gone through two different drugs. And those drugs have been rendered unavailable by the abolitionist movement. And this is Justice Scalia. Putting pressure on the companies that manufacture them so that the states cannot obtain those two other drugs. And now you want to come before the court and say, well, this third drug is not 100 percent sure. The reason it isn't 100 percent sure is because the abolitionists have rendered it impossible to get the 100 percent sure drug. Is it appropriate for the judiciary to... to countenance what amounts to a guerrilla war against the death penalty. What do you think he means by guerrilla war? I think he's trying to say there are ways to, if you want to make the death penalty illegal, you have ways to do it. You can call your legislator, you can pressure them, they can pass a law. But you're trying to hide in the trees and pull drugs off and make them so scarce that you're forcing a legal problem that doesn't exist without you. Should not have bearing on whether that method is... I would like an answer to the question. You've been interrupted several times. The justices called you guys out, kind of. You know, it's... Look, you know, there's a lot of narrative around this being... guerrilla activism. But this has nothing to do with me or anyone else. It's that the companies don't want their medicines used in executions. The manufacturers, the distributors, the pharmacists, the anesthesiologists, the European governments, whoever else it might be, the Indian industry, none of them asked to be part of Ohio's capital punishment machine. But isn't there an argument to be made here? I mean, I get what she's saying that like, all these different people in different countries have been like, unknowingly drafted onto Ohio's execution team, which doesn't seem fair. But isn't there an argument to be made that like, even so, the effect is that she has taken a death penalty that is kind of humane, maybe, and made it more cruel? I mean, because that's kind of the accusation in the air. Yeah, it's, it's, I'm going to say two things. One of them is a throwaway. She didn't cause it. She's the states are chasing the companies and she's chasing the states, right? So like you can't say that she caused it. But what you more importantly, what you also can't say is that it is actually more cruel because there's no evidence that there's been an increase in botched executions. What I think is happening is just that we're paying more attention to lethal injection, right? We're just looking at it more. Oh, you mean like it's botched executions have been happening forever and we're just now noticing them? Yeah. Nonetheless, people do accuse her of making this more cruel, and not just because of the drugs, because states in their sort of desperation to still be able to do this are looking for other ways to do it. And some of those ways might seem like we're going backwards. The lady that was spearheaded the getting rid of the injections, all she did is basically force people to be shot. This is Paul Ray. State Representative, House District 13, Utah. He says one day he was sitting in his office. I was actually listening to the local NPR station. A federal judge in Oklahoma is... And they were talking about... European pharmaceutical companies used to provide this controversial drug, but now refuse to sell it to American prisons. The European drug company is no longer selling the drug cocktail. And so I called our Department of Corrections and said, hey, do we have access to the drug? And they said, no, we don't. You know, we have a set amount and then we're out. He says he hung up the phone, did a little bit of thinking, a little bit of research. Kind of deep into the history. And eventually he came to the conclusion. Well, let's revert back to the firing squad. What do you mean, like firing squad, John Wayne firing squad, like line up against the wall? No, it's like they have a chair and they bring the person into the room and they strap. them to the chair, they put a hood over their head. A physician will locate the heart and they'll pin a target where the heart is. And then there's five men with rifles and one of them has a blank but none of them know which one it is. And then when the order is given they all shoot the individual in the heart. Lawmakers in Utah have voted to bring back executions by firing squad if lethal injections are not readily available. Paul Ray says he was just trying to solve a problem. But I was completely taken off guard. by the media frenzy that... The cruel holdover from the state's Wild West days... That happened... The cruel relic of Old West justice... And will earn it international condemnation... The fact that Utah is adopting it now is an embarrassment... Barbaric. We shouldn't be shooting our people. This is ridiculous. This is not the time of... Why is it that the, do you think the firing squad itself created this response? Well, it's brutal. You know, it's certainly not the easy, give them a couple of injections and they quietly go down. You know, this is calling it for what it is. In fact, Paul would argue... If you want to look at something that's more humane, definitely the firing squad. What caught my attention was that it was so sudden, so quick, boom, boom, just like that. These are reporters talking about witnessing a firing squad execution in Utah. It was over pretty quickly. It was cleaner than I expected, and it was fast. With the firing squad, you're dead within seconds of pulling the trigger. Five bullets directly to the heart, it's over. There's nothing. not the paralytic that hides it, it's done. But he moved. He moved a little bit. And to some degree, that bothers me. And that seemed to carry on the last 60 to 120 seconds. So this is how Utah has chosen to solve the whack-a-mole problem. Yeah, and the firing squad has already been upheld by the Supreme Court. We have approved electrocution. We have approved death by firing squad. That's Justice Scalia in 2008. The Supreme Court... actually approved the firing squad in 1879. And the people who were part of the firing squad are actually volunteers. Do you have a lack of volunteers or an abundance of volunteers? We have an abundance. I know the last death penalty, they had hundreds. hundreds. Nobody's forced to do it. There are people that are willing, they kind of see as their civic duty to help carry these out. And while I was down there, I actually asked Paul, I really want to talk to a volunteer member of the firing squad. If you'd put me in touch with somebody who's actually been involved with the firing squad. When we're done, let's go to my office. I'll call somebody. Okay. I'm going to wait till this thing passes us. The sound of freedom is going. That's an F-16 from Hill Air Force to the bombing range. All right. I like it. That sounds good. This is Kenny. We agreed not to use his last name. And Ken's dad ran the firing squad for a couple of decades. So as you see, there's two cottonwood trees over here. Those old cottonwood trees, they'd set up, and that's where they would drill the firing squad at. These men were selected because, for one, they're... Absolute marksman. Two, they just had moral clarity. Many of them did not want to be on there, but once they were called, they felt obligated to see it through. Ken told me that on execution days, his dad and the other shooters, they would sit down together at the kitchen table. And you know, it's just like a little family breakfast. And his mom, she'd make coffee and she would do scones or biscuits and gravy. And she wanted those men to know that it wasn't easy and that she appreciated them. I know there was a lot of prayerful times around the house when those men were over getting ready. I know that it's a pretty solemn moment. What's the prayer? Is it for the person being executed, the victim? What's the prayer? I think you have to pray for strength to follow through on what you have to do. I think that, you know, you might need a little guidance and you might need a little understanding and something bigger than you is out there. I think that if we're going to have the death penalty, people just have to understand that there's some savagery involved in it. And it's unfortunate that it is, but if we have it to do, let's do it, but let's do it humanely. One of the things that I found kind of striking is that Maya Foa is against the death penalty, and you have the folks in Utah that are for it, but everyone seems to agree that we shouldn't fool ourselves. I favor the death penalty, but one thing I've never favored, and some common ground between me and the abolitionists, is that lethal injection is a terrible method of execution. That's Robert Blecker, a New York law school professor, sounding a little bit like Maya. He says he objects to lethal injection not because it's cruel. Not because it might cause pain, but because it certainly causes confusion. I attended an execution in Florida of Benny Demps. And I also was with my father-in-law when he was in a hospice dying from an incurable and very painful cancer. And the death scene in both situations was bizarrely similar. In both cases, the person dying... was lying on a gurney with an IV coming out of his arm, wrapped in white sheets, medical technicians at his side, surrounded by loved ones. And it struck me as bizarre that we are killing those whom we love in a fashion that is so bizarre. ...passion that so nearly resembles how we are killing those we rightfully detest. There should be no resemblance. This isn't medicine. This is punishment. So the firing squad is honest and it acknowledges itself for what it is. I have one objection to the traditional firing squad that Utah uses. He says he doesn't like the fact that one person gets a blank and that nobody knows who that person is. That to me is symptomatic. of our failure once again to take responsibility for what we do. Nobody should have a blank. And if we cannot face what we're doing and acknowledge it, then we shouldn't do it. And we may be coming to a moment where we are about to do that, to look at this and acknowledge it. Because in 2014, in a case that was really just about lethal injection, Justice Breyer said, look, let's stop just talking about the details, like questions about which medicine that we use. The time has come for the court to again consider a more basic question, whether the death penalty itself is constitutional. In other words, what he's saying is. It's time to talk about not just like the mechanics of what we're doing, but whether we should even do it at all. Reporter Karen Duffin. When Breyer said that in 2014, he was in the dissent, lost the case. But a lot of people saw that statement as this invitation, like Breyer saying to the lawyers of America, send us cases. And in fact, some of those cases have just started to arrive. Two days ago, a case made it in front of the court, or almost made it. The U.S. Supreme Court on Tuesday refused to hear an appeal asserting that the death penalty violates the U.S. Constitution's ban on cruel and unusual punishment. Two of the eight justices, Liberal Stephen Breyer and Ruth Bader Ginsburg, said they would have accepted the case. Clearly, more cases are on the way. Here's something else that happened while we were reporting this story. This one from about two weeks ago. The pharmaceutical giant Pfizer has announced that it will no longer allow its drugs to be used in lethal injections. That closes off the last remaining open market source of drugs used in executions. This basically can't quite say spells the end of lethal injection in the United States, but it's close. Because now any states that want to keep doing it, they essentially have to go underground to get those drugs. More perfect. It's our first Radiolab spinoff, sideband, whatever you want to call it. It's produced by me, Chad Amonrod, with Susie Lechtenberg, Kelsey Padgett, and Tobin Lowe. Tobin, do you want to do the rest? Sure. With Soren Wheeler, Ellie Mistal, David Herman, Alex Overington, Karen Duffin, Sean Ramosforum, Catherine Wells, Barry Finkel, Andy Mills, and Daniel Moetar. Special thanks to Ben Cohen, Mona Lynch, Austin Sert, Chris Zimmerman. Julie Toll, and the Death Penalty Information Center. Supreme Court Audio is from Oye, a free law project in collaboration with the Legal Information Institute at Cornell. More Perfect is funded in part by the William and Flora Hewlett Foundation, the Charles Evans Hughes Memorial Foundation, and the Joyce Foundation. More Perfect.

More Perfect. Can we watch Teletubbies for a second? Although that's also horrifying.

It is true. Five, two, one. Hey, I'm Jad Abumrad. This is More Perfect, a mini-series that we're just getting going about some of the ideas and the cases that flow through the Supreme Court. And we're going to start the series off with a...

with a story that isn't so much a courtroom drama. This one is about an issue that I think everybody agrees is about to land at the Supreme Court again, in a big way. Story comes from reporter Karen Duffin, and it begins with a mystery.

Right. All right, so we're starting with Maya, right? With Maya, yeah. Maya Foa.

I am the director of the death penalty team at Reprieve. Okay, so Maya Foa lives in London, and when she was about 20... She had graduated from college. She was doing some theater things, but she was having this quarter-life crisis and didn't know what to do with her life. Post-college flail.

Sort of. An existential crisis, and I wrote to a couple of organizations and said, you know, please, can I be useful to you? She ends up volunteering at this place called Reprieve. A legal organization that did death penalty cases.

Are they like a bunch of lawyers, or what do they do? Yeah, like they do legal work and advocacy. They've been working on the death penalty for years at that point to try to abolish it. I view the death penalty, and I viewed it at the time, as sort of the sharp end of a series of societal injustices.

So anyway, she's at Reprieve one night. This was 2010. I was sat in the office. She's sitting there one night, and Clive Stafford-Smith, who's the president of Reprieve, or the head of Reprieve, calls and says, Look, we've got an execution tonight. There's an execution in Arizona tonight. Jeffrey Landrigan is set to be put to death for killing Chester Dreyer.

Landrigan was found guilty of strangling and stabbing the man in 1989. So Clive says, there's an execution tonight, and we just found out that the lethal injection drugs that they're going to use... They came from a pharmacy in England. But we don't know which pharmacy because Arizona refuses to release the name.

Does anyone in the office have some time, a volunteer, have some time to figure out where those drugs could have come from? And she raises her hand and she's like, I have 30 minutes, you know. And I said, yeah, sure, I've got, you know, I've got half an hour.

I didn't know. what I was starting when I started it. So wait, why do they want to find this supplier? Like, why does that help them?

Well, the drugs that they want to use in Arizona have to be FDA approved. So if they can find who made these drugs and prove that they are not FDA approved, then they can probably stop the execution. Did they have any reason to think the drugs weren't FDA approved?

It was kind of a Hail Mary. So I started the half hour research task that has taken me now five and a half years. And I was trying to figure out with limited information where sodium thiopental could have come from in the UK to get to the US. Sodium thiopental is an anesthetic, and for a long time it was one of the most common anesthetics used in surgeries.

But it's also one of the drugs used in lethal injection. I was sort of, I didn't, I don't think I knew the purpose of all the research that I was doing, but I was doing it very quickly. Because of course they had an execution that night. Landrigan is running out of time and options.

It was, I was in the UK so it was the evening. Which is morning Arizona time. We had just a number of hours.

She's like frantically searching for all these like global medical regulations and you know she can't figure out exactly what the name of the company is. Because there was no way to know at that point. But ultimately she does figure out that there are no UK companies authorized to ship this drug to the US. There was no...

effectively no FDA-approved supplier of the stuff. So whatever this mystery pharmacy was, it probably wasn't FDA-approved. And I remember, you know, I emailed that over.

I think we either turned it into an affidavit from me or from Clive. They write up a quick affidavit. They send it back to the States.

And the execution that night was stayed, like halted. When I went to sleep, it had been stayed. And I just thought, OK, great.

You know, we've got a bit of time. The next morning, I woke up. I was couchsurfing.

I was in someone's home, and I turned on World Service, and they announced that... Jeffrey Landrigan was executed at 2226 hours. Um, yeah. His final meal was a piece of steak.

His last words were, Well, I'd like to say thank you to my family and Boomer Sooner. It turned out while Maya was asleep. The state appealed all the way to the Supreme Court, and late yesterday, the justices, by a 5-4 vote, lifted the stay of execution, allowing Landrigan to be put to death last night.

The stay was put in place due to concern over lethal injection drugs. One of those drugs obtained from Britain was not FDA approved, but the U.S. Supreme Court did rule that there was no reason to believe.

that the drug wasn't safe. You know, talk about a rude awakening in the literal sense. Now that rude awakening would send Maya on a journey around the world. It would get her called out by the United States Supreme Court. And it would spark a global conversation about the American death penalty.

And about those little words, cruel and unusual, that are embedded in our Eighth Amendment. The United States states are admonished to draw near and give their attention. No.

All right, back to Karen. So we were in London with Maya, who just learned that Jeffrey Landrigan had been executed. But to understand what she does next, let me just give you a little bit of context. In the fall of 2010 when Jeffrey Landrigan was executed, the drug that they'd used The lethal drug sodium thiopental was suddenly in really short supply.

There was a nationwide shortage Because the only U.S. company that still made that drug was having like a manufacturing problem so they had stopped manufacturing or producing this drug. So you actually see these emails between states like, dude, do you have any sodium thiopental? California got help from right next door. Arizona agreed to lend California a cup of death.

And there's actually this one great email exchange between the California Department of Corrections. They send Arizona this thank you email. And I quote, you guys in Arizona are lifesavers. We'll buy you a beer next time I see you. You're a lifesaver.

Come on. So when Jeffrey Landrigan is set to be executed, Arizona is out of that drug. And this is how they end up at this mystery drug company in London.

So after the execution, Maya is doing all this research. She's calling pharma companies. Flying through these documents. And very quickly, she learns that the same company that is sending drugs to Arizona had sent drugs to, like, lots of different states.

Georgia and South Carolina, Kentucky. California and various other places. They'd actually become one of the primary suppliers of lethal injection drugs to the United States. Wait, tell me again. Why was it so hard to find out information about this company?

So what happens is that anybody involved with an execution, your name is kept confidential. And states have started keeping companies'names confidential, too. I see.

So next she starts calling suppliers and distributors, kind of trying to trace, like, how did this drug get to that company, thinking that maybe that'll lead her to it. We had figured out it had come originally from... There was some active ingredients made in Austria. Some of those were sent over to Germany. There were a package put into vials.

Those were sent over to the UK. There was one company that has the marketing authorization for the product. They were sold to another one. That company changed. And then they were sent to this company in England.

Which she still can't figure out the identity of. But then the real breakthrough came just a couple months after Jeffrey Landrigan was executed. I think there was lots of material coming out at that time. I remember California and the ACLU got a batch of documents. And in one of these batches of documents, she finds an invoice, and this invoice has a name on it.

I just remember getting the court documents, and I was working with this very slow internet connection. She was actually in Malawi at the time. I was just sort of, you know, fervently, you know, willing the computer to download the documents so I could start, you know, looking through them and figuring out this stuff. And those were the documents that had the name of the middleman. What was it?

Dream Farmer. Dream Farmer. Dream Farmer.

Dream Farmer. Yeah. Huh.

Yeah. Okay. Yeah. So she's in Malawi, so she, you know, rings up her colleague and says, can you go just look at this place?

It's in West London. And it's this residential area, but also like with sort of warehouses, kind of middle class. You have a couple of petrol stations, a couple of cafes, and then this pharmacy, except that it doesn't look like a pharmacy because it's got a big...

sign on the front that says, uh, Elgon Driving Academy. Uh, I'm going to go and try and go and knock on the door of the Elgon Driving Academy. This is Nina Parrish. She's a freelance producer in London.

It doesn't look too good. Is this, there's a, uh. Tiny little storefront. Well, I can't see any evidence of driving.

And if you walk in. Hello. You walk in and in the front it's just this reception area, but in the back... Hi. I'm looking for Dream Pharma.

Is that you? Oh, hi. I'm recording for...

There's a guy sitting at a desk. His name is Mehdi Elavi. He's in his 50s, grey feathered hair, kind of like square glasses, looks a little bit like William Hurt.

He is Dream Pharma. In other words, the company that is helping prop up the death penalty system in America. It's a one-man operation operating out of the back of a driving school. One guy? One guy.

And I thought, well, this can't be true. But they're interested in speaking to you about the injections that you supplied to the States. From the get-go I had no comments and I still have no comments. Oh. So what was it like when Reprieve came to find you?

Ask them yourself. What was it like for you? Ask them. them for yourself. Okay.

Are you still supplying the states with? No. No.

It's illegal. Oh, right. Were you aware of that? It wasn't illegal at that point. Oh, right, so then it became illegal.

That is correct. Oh. Would you mind me asking how you came to get involved in that in the first place? How they came to find you or you to find them? They found me.

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

surprised I don't know at that point I guess it unraveled somewhat I got no further comments my dear well thank you very much for doing that thank you for bringing me to Acton because I very much enjoyed walking around and meeting people around here okay yeah so what do you sell now? It's irrelevant to your case. Well I'm just quite interested as a citizen of London. It's irrelevant to you.

You're not in the business that's irrelevant to you. Okay. Okay well thank you very much for your time. Pleasure.

And what was your name again please? You know my name if not find out. Okay thank you very much. Pleasure. Bye-bye.

Do you actually do driving lessons? It's irrelevant to you. You don't do driving lessons?

So once Maya and Rupree found that guy, Medialabi, in his pharmaceutical broom closet of death, The next step was pretty simple. They went to the UK government and they told them, because in the UK it's illegal to be part of capital punishment in any way. We have a law that prohibits export of products for the facilitation of...

Capital punishment or torture. It's called the torture regulation. The anti-torture regulation.

With this text, unique in the world, the EU is profoundly committed to the fight against torture and the death penalty. And when they realized that the sole purpose of the exports of this drug was for executions, they put an export control in place. And just like that, the supply of this drug is turned off. So the states are just out of luck? Well, I mean, 60% of Americans support the death penalty, so they're not going to give this up without a fight.

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

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

A Hospira spokesperson said, We cannot take the risk that we will be held liable by the Italian authorities if the product is diverted for use in capital punishment. And then, Denmark. A bunch of states, Florida, Ohio, Alabama, 11 other states, they all decide they're going to get their drug from this company called Lundbeck. Maya calls them up. I remember my first call with them.

She was like, did you know that your drug's being used in executions? And they were like, what? It certainly came as a huge surprise for us.

This is Anders Schroll, he's vice president for communications at Lundbeck. We have been in the pharma industry for a little more than 100 years, and we are here to save people's lives. This was the complete opposite of the intention of this product.

And Maya says that she heard the same thing all over the world, even when states like Nebraska and South Dakota go to India to get their drug. And it's interesting in India. because India has capital punishment.

So this isn't an objection to capital punishment. This is, from every company I've spoken to in India, they say, but why? Why would they use medicines?

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

That's coming up on More Perfect. I am Jad Abumrad. This is More Perfect, a miniseries about some of the ideas and cases that are flowing through the Supreme Court.

Back to our story from reporter Karen Duffin. So we left off with Maya in India and they're wondering why do you guys use drugs to kill people? Why? Why would they use medicines?

So what is the answer to that question? Why do we? Well, the answer to that goes back to this guy named Bill Wiseman.

It's a terrible thing to have ones. His reputation be based on coming up with a new way to kill people. Bill Weissman was a rising star back then.

He loved politics. Weissman died in a plane crash in 2007. This is him in an interview with a reporter named Scott Thompson on KOTV in Tulsa back in 2005. So what's Bill's story? So he grew up, his dad's a minister, his grandpa's a minister, and he's like, I don't want the family business.

And he wanders for years. He, by his account, wanders through like two and a half literature degrees. He becomes a poet.

He drinks a lot of corn liquor. And, you know, he finally ends up in construction where he starts working with politicians. And he's like, oh, this is my calling.

I want to be a politician. So he gets elected to the Oklahoma State Legislature in 1974. And he's opposed to the death penalty. Luckily for him, this had just happened. The Supreme Court declared the death penalty unconstitutional today and spared the lives of 600 men in death row cells across the country.

In 1972, the Supreme Court actually abolished the death penalty because they said it was being applied unfairly or haphazardly. In a way that could only be called freakish. So Bill Wiseman is in the Oklahoma legislature. He's like, great, this is not a problem I'll ever have to worry about.

The problem is the public is... furious about this decision. Support goes from 50 to 63 percent in just two years. Do you think the death penalty should be reinstituted? Yes, I think so.

Absolutely. I'm very much in favor. Highly in favor of it. If we get some law and order into this country. There's people writing furious obeds.

I don't think it should have taken it away in the first place. And almost immediately, 35 states rewrite their death penalty laws, essentially saying like, no, no, no, no, we can do this right. And in 1976, the Supreme Court says, all right.

If you can administer the death penalty fairly and humanely, you can have it back. So 1972, the death penalty is abolished. 1976, it's reinstated. Bill Wiseman gets elected smack dab in the middle of this. So, you know, in 1976, suddenly there's a bill in the Oklahoma State Legislature about whether to reinstate the death penalty.

And Bill has to vote on that. I knew that capital punishment, it just it doesn't work, doesn't make sense. I couldn't see any way to justify it.

I also knew that if I'd voted against it from my district, I would run a high chance of getting whooped. Because 80% of his constituents were in favor of the death penalty. After all that wandering, he finally found this job that he loved.

I was just having the best time and I didn't want to get whooped. So I was in a real dilemma. What'd you do? The wrong thing.

He voted to reinstate the death penalty. For whatever reasons of ego or vanity or need or the motivation to get re-elected, whatever the reasons, I knowingly made a decision when I knew it was wrong. And that's tough.

So he's in the legislature and he's feeling like he just sold his soul. And as they're debating various amendments to this law, someone brings up something sort of vaguely about a more humane way to execute people. And he's like, yes, that.

And he becomes obsessed with this idea. Oh, it's like a way to assuage his guilt. Yeah. So he rings up some anesthesiologists and doctors and says, I want to find a better way to do this.

And they say, we can't help you because, you know, Hippocratic oath, do no harm. Death is a little bit of harm. So he goes to the state medical examiner, a guy named Jay Chapman. And Jay.

just sort of like freestyles this one line that Bill literally just sits with a yellow legal pad and writes word for word. It said an intravenous saline drip should be established, into which would be introduced an ultra-short-acting barbiturate in combination with a chemical paralytic. The idea is that these three drugs would allow them to execute people, but painlessly.

And right there in that office, with just like this yellow legal pad, they invent lethal injection in America. It would be hard to overstate just how important this moment in this office is, because, you know, the Supreme Court had just given the country back the death penalty on the grounds and the ideal that we could do this right. And what Bill has just handed America. is a way to have the death penalty, but have it be humane.

The ideal death penalty. Yeah. So Oklahoma adopts it, and then the very next day, Texas does, and then dozens of states. And since that moment, 88% of all executions have been done by lethal injection. I don't hear the word lethal injection or execution or anything else without feeling a tug, because it's tied to me.

I mean, I'll always be tied to it. Which he lives to regret. He thinks that he actually extended the life of the death penalty. And he actually eventually quits his job, becomes a pastor, and becomes a very strong anti-death penalty advocate.

How does the man who came up with the recipe for lethal injection, what does he do on Judgment Day? The same thing everyone else does, throw ourselves on the mercy of God, say that we have done wrong and we're sorry. The thing that I find really interesting is that if you look at the modern lethal injection cocktail, it's three drugs. The first drug is supposed to anesthetize you, the second drug paralyzes you, and the third drug is the acid that stops the heart and kills you.

And in this drug cocktail, you kind of see everything that we want and need from the death penalty just kind of all mixed together. The third drug, the drug that stops your heart, that's kind of our sense of justice. The first drug, the anesthetic... That's kind of our sense of humanity or kindness.

That second drug, the one that paralyzes their muscles. The second drug is purely cosmetic. It serves no medical purpose. The reason it was put into the lethal injection cocktail in the first place was so that if the first drug doesn't work effectively...

The second drug will mask any signs of visible suffering and it would be extremely significant because the potassium chloride is this potent acid that people have described as being like fire going through your veins and being burnt alive from the inside. She says just imagine that that's happening to you but something goes wrong with the anesthetic and you become conscious. You have this burning acid going through your body.

And you are paralysed, all your voluntary muscles are paralysed, so you can't say, I'm awake, I can feel everything, this is agony. She says that it's that second drug that is both the thing that could make the execution most torturous and the thing that meant that we, the witnesses, the viewers, the public, wouldn't know that it was torture, because we weren't supposed to know that. So does she end up going after that second drug, the paralytic? No, actually, she goes after the first drug, the anesthetic. And it's a total coincidence.

This is just the one that had manufacturing problems that started the arms race. But it turns out that this drug, the anesthetic, is the one that's the most constitutionally important drug. Because in 2008, when the Supreme Court ruled on lethal injection, they said, The parties agree that successful delivery of the first drug is necessary to prevent the prisoner. from experiencing severe pain. So if there's no anesthetic, there's pain, which would be too severe and then be, therefore, what, an Eighth Amendment violation?

Cruel, unusual punishment? Exactly. So that drug, the anesthetic, is the key drug.

But over the past five and a half years, as Maya has whack-a-moled her way across these different companies, she's just made it harder and harder to get. There are now 20-plus companies who have, they've said, We disapprove of the misuse of medicines in executions, and we're going to take steps to prevent it. And that has states scrambling. The drugs used in the 32 death penalty states are now running out.

They have run out of drugs. And as a result, what you've seen is that things have gotten very DIY. They're changing and trying new procedures never used before in the history of executions. Prison officials are in a difficult position.

You even have the DA start raiding prisons. Because they're essentially using illegal drugs at this point. And so reporters are just starting to pay more attention.

And in the middle of all that... He began kicking his feet, lifting his head and his chest off the gurney, grimacing. You also get scenes like this. Clenching his teeth, and in a couple moments he actually mumbled. He would open his mouth and you'd see his chest move and it would go all the way down to his stomach.

So it was a clear gasp. April 29th, 2014, in Oklahoma. A man named Clayton Lockett was being executed for murder, rape, and kidnapping.

Lockett's execution used a new drug combination whose source is unknown. He was sedated and declared unconscious, but... He started thrashing, clenching his teeth, and...

He started moving the arms, his legs. It took him 43 minutes to die. Grizzly, horrific spectacle. And this kept happening. After an hour and 57 minutes, the state pronounced him dead.

You had situations like this in Arizona, Ohio. This drug formula is unconstitutional because... People started filing a bunch of lawsuits, and one of these eventually got to the Supreme Court.

Case 14-79-55, Glossop... And interestingly, when it got to the Supreme Court... Yeah, I mean, let's be honest about what's going on here. Things got very tense. This is Justice Alito saying essentially, come on guys, this isn't actually a problem.

You made it a problem. Executions could be carried out painlessly. There are many jurisdictions, there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide. The states have gone through two different drugs. And those drugs have been rendered unavailable by the abolitionist movement.

And this is Justice Scalia. Putting pressure on the companies that manufacture them so that the states cannot obtain those two other drugs. And now you want to come before the court and say, well, this third drug is not 100 percent sure. The reason it isn't 100 percent sure is because the abolitionists have rendered it impossible to get the 100 percent sure drug. Is it appropriate for the judiciary to...

to countenance what amounts to a guerrilla war against the death penalty. What do you think he means by guerrilla war? I think he's trying to say there are ways to, if you want to make the death penalty illegal, you have ways to do it. You can call your legislator, you can pressure them, they can pass a law. But you're trying to hide in the trees and pull drugs off and make them so scarce that you're forcing a legal problem that doesn't exist without you.

Should not have bearing on whether that method is... I would like an answer to the question. You've been interrupted several times.

The justices called you guys out, kind of. You know, it's... Look, you know, there's a lot of narrative around this being... guerrilla activism. But this has nothing to do with me or anyone else.

It's that the companies don't want their medicines used in executions. The manufacturers, the distributors, the pharmacists, the anesthesiologists, the European governments, whoever else it might be, the Indian industry, none of them asked to be part of Ohio's capital punishment machine. But isn't there an argument to be made here? I mean, I get what she's saying that like, all these different people in different countries have been like, unknowingly drafted onto Ohio's execution team, which doesn't seem fair.

But isn't there an argument to be made that like, even so, the effect is that she has taken a death penalty that is kind of humane, maybe, and made it more cruel? I mean, because that's kind of the accusation in the air. Yeah, it's, it's, I'm going to say two things.

One of them is a throwaway. She didn't cause it. She's the states are chasing the companies and she's chasing the states, right? So like you can't say that she caused it. But what you more importantly, what you also can't say is that it is actually more cruel because there's no evidence that there's been an increase in botched executions.

What I think is happening is just that we're paying more attention to lethal injection, right? We're just looking at it more. Oh, you mean like it's botched executions have been happening forever and we're just now noticing them? Yeah. Nonetheless, people do accuse her of making this more cruel, and not just because of the drugs, because states in their sort of desperation to still be able to do this are looking for other ways to do it.

And some of those ways might seem like we're going backwards. The lady that was spearheaded the getting rid of the injections, all she did is basically force people to be shot. This is Paul Ray.

State Representative, House District 13, Utah. He says one day he was sitting in his office. I was actually listening to the local NPR station. A federal judge in Oklahoma is...

And they were talking about... European pharmaceutical companies used to provide this controversial drug, but now refuse to sell it to American prisons. The European drug company is no longer selling the drug cocktail. And so I called our Department of Corrections and said, hey, do we have access to the drug?

And they said, no, we don't. You know, we have a set amount and then we're out. He says he hung up the phone, did a little bit of thinking, a little bit of research. Kind of deep into the history. And eventually he came to the conclusion.

Well, let's revert back to the firing squad. What do you mean, like firing squad, John Wayne firing squad, like line up against the wall? No, it's like they have a chair and they bring the person into the room and they strap. them to the chair, they put a hood over their head.

A physician will locate the heart and they'll pin a target where the heart is. And then there's five men with rifles and one of them has a blank but none of them know which one it is. And then when the order is given they all shoot the individual in the heart. Lawmakers in Utah have voted to bring back executions by firing squad if lethal injections are not readily available.

Paul Ray says he was just trying to solve a problem. But I was completely taken off guard. by the media frenzy that... The cruel holdover from the state's Wild West days... That happened...

The cruel relic of Old West justice... And will earn it international condemnation... The fact that Utah is adopting it now is an embarrassment...

Barbaric. We shouldn't be shooting our people. This is ridiculous.

This is not the time of... Why is it that the, do you think the firing squad itself created this response? Well, it's brutal.

You know, it's certainly not the easy, give them a couple of injections and they quietly go down. You know, this is calling it for what it is. In fact, Paul would argue...

If you want to look at something that's more humane, definitely the firing squad. What caught my attention was that it was so sudden, so quick, boom, boom, just like that. These are reporters talking about witnessing a firing squad execution in Utah.

It was over pretty quickly. It was cleaner than I expected, and it was fast. With the firing squad, you're dead within seconds of pulling the trigger. Five bullets directly to the heart, it's over. There's nothing.

not the paralytic that hides it, it's done. But he moved. He moved a little bit. And to some degree, that bothers me. And that seemed to carry on the last 60 to 120 seconds.

So this is how Utah has chosen to solve the whack-a-mole problem. Yeah, and the firing squad has already been upheld by the Supreme Court. We have approved electrocution.

We have approved death by firing squad. That's Justice Scalia in 2008. The Supreme Court... actually approved the firing squad in 1879. And the people who were part of the firing squad are actually volunteers.

Do you have a lack of volunteers or an abundance of volunteers? We have an abundance. I know the last death penalty, they had hundreds. hundreds.

Nobody's forced to do it. There are people that are willing, they kind of see as their civic duty to help carry these out. And while I was down there, I actually asked Paul, I really want to talk to a volunteer member of the firing squad.

If you'd put me in touch with somebody who's actually been involved with the firing squad. When we're done, let's go to my office. I'll call somebody. Okay.

I'm going to wait till this thing passes us. The sound of freedom is going. That's an F-16 from Hill Air Force to the bombing range.

All right. I like it. That sounds good.

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

So as you see, there's two cottonwood trees over here. Those old cottonwood trees, they'd set up, and that's where they would drill the firing squad at. These men were selected because, for one, they're...

Absolute marksman. Two, they just had moral clarity. Many of them did not want to be on there, but once they were called, they felt obligated to see it through.

Ken told me that on execution days, his dad and the other shooters, they would sit down together at the kitchen table. And you know, it's just like a little family breakfast. And his mom, she'd make coffee and she would do scones or biscuits and gravy. And she wanted those men to know that it wasn't easy and that she appreciated them.

I know there was a lot of prayerful times around the house when those men were over getting ready. I know that it's a pretty solemn moment. What's the prayer? Is it for the person being executed, the victim?

What's the prayer? I think you have to pray for strength to follow through on what you have to do. I think that, you know, you might need a little guidance and you might need a little understanding and something bigger than you is out there.

I think that if we're going to have the death penalty, people just have to understand that there's some savagery involved in it. And it's unfortunate that it is, but if we have it to do, let's do it, but let's do it humanely. One of the things that I found kind of striking is that Maya Foa is against the death penalty, and you have the folks in Utah that are for it, but everyone seems to agree that we shouldn't fool ourselves.

I favor the death penalty, but one thing I've never favored, and some common ground between me and the abolitionists, is that lethal injection is a terrible method of execution. That's Robert Blecker, a New York law school professor, sounding a little bit like Maya. He says he objects to lethal injection not because it's cruel.

Not because it might cause pain, but because it certainly causes confusion. I attended an execution in Florida of Benny Demps. And I also was with my father-in-law when he was in a hospice dying from an incurable and very painful cancer.

And the death scene in both situations was bizarrely similar. In both cases, the person dying... was lying on a gurney with an IV coming out of his arm, wrapped in white sheets, medical technicians at his side, surrounded by loved ones.

And it struck me as bizarre that we are killing those whom we love in a fashion that is so bizarre. ...passion that so nearly resembles how we are killing those we rightfully detest. There should be no resemblance. This isn't medicine.

This is punishment. So the firing squad is honest and it acknowledges itself for what it is. I have one objection to the traditional firing squad that Utah uses.

He says he doesn't like the fact that one person gets a blank and that nobody knows who that person is. That to me is symptomatic. of our failure once again to take responsibility for what we do. Nobody should have a blank.

And if we cannot face what we're doing and acknowledge it, then we shouldn't do it. And we may be coming to a moment where we are about to do that, to look at this and acknowledge it. Because in 2014, in a case that was really just about lethal injection, Justice Breyer said, look, let's stop just talking about the details, like questions about which medicine that we use. The time has come for the court to again consider a more basic question, whether the death penalty itself is constitutional.

In other words, what he's saying is. It's time to talk about not just like the mechanics of what we're doing, but whether we should even do it at all. Reporter Karen Duffin.

When Breyer said that in 2014, he was in the dissent, lost the case. But a lot of people saw that statement as this invitation, like Breyer saying to the lawyers of America, send us cases. And in fact, some of those cases have just started to arrive. Two days ago, a case made it in front of the court, or almost made it. The U.S. Supreme Court on Tuesday refused to hear an appeal asserting that the death penalty violates the U.S.

Constitution's ban on cruel and unusual punishment. Two of the eight justices, Liberal Stephen Breyer and Ruth Bader Ginsburg, said they would have accepted the case. Clearly, more cases are on the way.

Here's something else that happened while we were reporting this story. This one from about two weeks ago. The pharmaceutical giant Pfizer has announced that it will no longer allow its drugs to be used in lethal injections.

That closes off the last remaining open market source of drugs used in executions. This basically can't quite say spells the end of lethal injection in the United States, but it's close. Because now any states that want to keep doing it, they essentially have to go underground to get those drugs.

More perfect. It's our first Radiolab spinoff, sideband, whatever you want to call it. It's produced by me, Chad Amonrod, with Susie Lechtenberg, Kelsey Padgett, and Tobin Lowe.

Tobin, do you want to do the rest? Sure. With Soren Wheeler, Ellie Mistal, David Herman, Alex Overington, Karen Duffin, Sean Ramosforum, Catherine Wells, Barry Finkel, Andy Mills, and Daniel Moetar. Special thanks to Ben Cohen, Mona Lynch, Austin Sert, Chris Zimmerman. Julie Toll, and the Death Penalty Information Center.

Supreme Court Audio is from Oye, a free law project in collaboration with the Legal Information Institute at Cornell. More Perfect is funded in part by the William and Flora Hewlett Foundation, the Charles Evans Hughes Memorial Foundation, and the Joyce Foundation. More Perfect.

Transcript for:Exploring Death Penalty and Drug Sourcing

Transcript for:
Exploring Death Penalty and Drug Sourcing