We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 27, in which Slate’s Dahlia Lithwick sits down with Andrew Cohen of the Marshall Project, 60 Minutes, and CBS Radio News to discuss whether death penalty abolitionists could soon be having their day in the nation’s highest court. To learn more about Amicus, click here.
We’re a little delayed in posting this episode’s transcript—apologies. This is a lightly edited transcript and may differ slightly from the edited podcast.
Dahlia Lithwick: Hi and welcome to Amicus, Slate’s podcast about the U.S. Supreme Court. I’m Dahlia Lithwick, Slate’s Supreme Court correspondent, and my cohost today is bronchitis. So if you’re wondering why I sound like this, I have a bad cold.
So the term opened this week without too, too much fanfare. Although the court did hear a death penalty case on Wednesday. The case was so gruesome that, as the Washington Post’s Bob Barnes noted, it has its own Wikipedia entry. Here’s Justice Samuel Alito responding to the absolutely horrific facts detailed in the murders in Kansas v. Carr and Kansas v. Gleason.
Justice Alito: It would have to take responsibility for the decisions in these cases, which involve some of the most horrendous murders that I have seen in my 10 years here. And we see practically every death penalty case that comes up anywhere in the country. These have to rank as among the worst.
Lithwick: Now, the court will be hearing at least six death penalty cases this term, and that’s on a docket that’s not yet completely filled. As you’ll recall, last term the whole term closed with a pretty passionate smackdown on the question of whether lethal injection as used in Oklahoma violates the Eighth Amendment. And on the last day of the term in Glossip v. Gross, the court by a 5–4 margin upheld that state’s lethal injection protocol amid some very angry dissents and concurrences, so angry that I would say they bordered on personal. Now, Richard Glossip himself, who was the named party in that case, ate his third last supper last week before being escorted back to his cell when his execution was halted by the state of Oklahoma again.
We’ve invited Andrew Cohen to join us today to talk about whether the death penalty as it’s currently constituted in America is headed towards extinction. Andrew is the commentary editor at the Marshall Project as well as the legal analyst for 60 Minutes and CBS Radio News. He’s also a fellow at the Brennan Center and a dear friend and respected reporter. Andrew, welcome to Amicus.
Andrew Cohen: It’s great to be here.
Lithwick: Andrew, I want to start at the very end, the very last day of last term. The 2014 term ends with the very dramatic announcement of decisions, dissent, and concurrences read from the bench in Glossip v. Gross. Now this is nominally only testing the lethal injection—one of the lethal injection drugs that Oklahoma uses in its capital punishment protocol. But it becomes symbolic of something much, much bigger including Justice Breyer in his dissent calling into question on behalf of himself and Justice Ruth Bader Ginsburg the very constitutionality of the death penalty itself. Let’s listen.
Justice Breyer: I recognize that we are a court, not a legislature. But the matters I have discussed are judicial matters. They concern the infliction of an unfair, cruel, and unusual punishment upon individuals at odds with a specific constraint that the Constitution imposes upon the democratic process, namely through the Eighth Amendment.
Lithwick: Now an awful lot of commenters pointed to that moment and said, “Look, you have two people on this court announcing that they think the death penalty is probably unconstitutional.” Is this a watershed moment? Does this change everything? Is this the beginning of the end of capital punishment in America? What are your thoughts?
Cohen: I think you’re asking two questions. I do think it was a significant development in the course of capital punishment in America to have two justices finally come out and say, look, there are so many problems with the way that this capital punishment scheme is implemented in various states that we need to look at it again. The promises that were made in Gregg v. Georgia, the 1976 case that gave us back the death penalty, really aren’t being met at the state level in a lot of different ways. So that’s a big deal. It’s a big deal anytime you have that kind of movement on the court, a court that has been very static when it comes to the core of capital punishment.
On the other hand, it’s only two people, and not even the four liberal justices, all of them, were willing to sign on. And at the end of the day, and we say this about capital punishment, and we say this about a great many things, unless this Court is going to get Justice Anthony Kennedy to sign off on something, there is going to be no five votes for significant restrictions on capital punishment. His was the fifth vote that gave us the restrictions on juvenile death penalties in Roper v. Simmons a few years back.
For a long time I think abolitionists were afraid of bringing a core capital punishment case to the court for fear that the conservative majority on the court was going to strengthen capital punishment, make it harder for defendants to challenge their death sentences, make it easier for judges and prosecutors to abuse the system that I think is too often abused. So you do have this change. I think part of it is political. I think the justices are reading the poll numbers that show dwindling support for capital punishment. I think part of it is just practical. We’re seeing less capital punishment in fewer states than we did, say, 10 years ago.
Now, is that enough? I don’t think so. I think to answer the initial question you asked a couple of minutes ago, if we’re going to see the end to capital punishment, it’s going to come I think at the state level first. And the Nebraska example is the most recent one where you really do see legislative movement in one direction.
Lithwick: So can you just clarify for listeners, Andrew, what happened in Nebraska this summer?
Cohen: Sure. You’re seeing in Nebraska sort of a miniature version of the debate over capital punishment that we’re seeing nationally. The legislature repeals capital punishment in Nebraska, a red state, a very conservative state. It says, enough. We don’t have a huge death row, but we’re tired of the cost of capital punishment. We’re tired of the uncertainty of it. We’re going to just basically do away with it. And it passes. The governor doesn’t like it, there’s a legislative fight over it, and now there’s going to be a recall.
So you see in this one little state this battle that, I think, if you were to declare some sort of national referendum, you would see on a national level as well. I think the way it’s heading is you’re going to see the majority of states that don’t have capital punishment and a few states—the hardcore states—that believe in it and are going to continue to do it.
Now, when that number of states dwindles to a certain point, I think it’ll be easier for the Supreme Court to say, you know what? This is now arbitrary. This is now against the Eighth Amendment’s cruel and unusual clause. And at that point I think maybe it goes away. But, boy, I don’t think we’re there yet.
Lithwick: Andrew, in a minute I’m going to ask you about all the action that’s been happening on the state fronts in terms of attempted and in some cases failed capital punishment. But first I want to talk a little bit about our first sponsor, the Great Courses. We all know that learning certainly doesn’t stop when we graduate from school, and we can keep learning about all sorts of important things long after you’ve left school. That’s why I really love the Great Courses. They are an amazingly engaging and interesting and compelling video and audio lecture series from some of the best professors in the world on a wide variety of subjects, including math and science and of course the law and the Constitution.
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So let’s talk a little bit, Andrew, about what’s gone on in the last couple of weeks, ‘cause I think it’s mapped so perfectly onto what you’re describing. The action in the states is just breathtaking and whiplash-inducing. We have just in the past few weeks a bunch of executions that are supposed to happen, a bunch that are stayed. Texas executes its 11th prisoner this week. The Pennsylvania governor halts an execution this past Wednesday. A judge in Montana says, oh my God, our whole death penalty has to be struck down. Virginia executes Alfred Prieto, an alleged serial killer. Oklahoma stays the execution of Richard Glossip, the same Glossip that we talked about in the introduction. And Missouri had what was supposed to be its seventh execution but then halted it.
So is this kind of the stutter step where we’re seeing executions. They’re on. They’re off. They’re scheduled. They’re unscheduled. Glossip’s eaten another last supper. He’s going back to his cell. Is this how it’s going to end with just these kind of foul-ups, these doubts, these eleventh-hour questions that are stopping some of them and having others go forward?
Cohen: I think there are two issues in play here. We’ve been talking basically about whether or not the death penalty itself is constitutional, whether or not it violates the Eighth Amendment or not. What’s happening over the past couple of weeks is almost exclusively the result of problems with lethal injection drugs and the protocols that states are using to try to execute prisoners. There was for many years—decades—the use of sodium thiopental, which was an effective drug for the purposes for which it was intended. It was used all over the country and very effectively. You did not see botched executions.
A couple years ago the manufacturer said, enough, we’re not going to be part of “the machinery of death” to use Justice Blackmun’s famous quote, and so stopped producing it. It is now almost impossible to get here in the United States. So that forced the states to scramble around for different drugs to be used for lethal injections, whether it’s one drug or a multidrug cocktail. And you had what I consider a very unseemly practice of states going to these compounding pharmacies on the sly to come up with drugs to implement the death penalty in various states.
Virginia recently, it has been reported, had to obtain its drugs sort of surreptitiously from Texas. Another component here is drug secrecy laws. Because there are so many questions raised by how these drugs are being obtained and what’s in them and whether or not they can cause pain that would violate the Eighth Amendment, states have found it necessary to protect the way that they’re procuring these drugs.
So you have this scramble for new drugs that nobody really has tested out on humans, and then you have these state secrecy laws that have come up in Georgia, in Texas, and other places designed to prevent journalists and advocates, even lawyers, from getting access to the information about where the drugs come from, what’s in them, and so forth.
All of that, this lack of transparency, this newness, is causing the sort of chaos we see, for example, in Oklahoma where we just learned that an execution that took place in January, the first execution after last April’s botched execution of Clayton Lockett, actually may have involved the wrong drug being administered to the death row inmate Charles Warner. That’s a shocking concession if it’s true from state officials who now have stopped the death penalty process in the state. These states aren’t halting executions because they no longer believe in capital punishment. They are halting executions because of very serious concerns about how the process is being implemented.
Lithwick: That’s a good segue to the kind of philosophical problem that Justice Sam Alito had certainly in the Glossip case where he said, “Look, capital punishment is constitutional. The framers built it into the Constitution. So it’s these death penalty abolitionists who are making it impossible, right. If they would just get out of the way and let the states get the right drugs, this wouldn’t be happening.” So he frames it as if all of you who weren’t making this ridiculously hard to kill people would just stop making it so hard, we could get back to killing efficiently in America.
Cohen: Yes, he did say that, and that is certainly a view held by the folks who want to employ capital punishment. That’s the justification that state lawmakers have used around the country to enact these secrecy laws that are really onerous. In some cases even the judge isn’t allowed to see some of the information. I think that was part of the Georgia statute for a while.
I disagree with Justice Alito. I think that he’s completely overblown the threat that he mentioned to the folks who are part of the execution process, the people who are procuring the drugs. They complain that they’re being threatened and so forth, that their identities have to be kept secret. There really isn’t a whole lot of evidence to suggest that death penalty abolitionists are making criminal threats or really any threats to those people.
On the other side of the argument, you have this idea that if the government’s going to essentially do the most serious thing the government can do, which is to kill a U.S. citizen, there ought to be as much transparency over the process as possible. Clearly that’s not the case in Oklahoma. Clearly that hasn’t been the case in other death penalty states that have raised these secrecy laws.
So on the one hand, you’re having state officials trying new things, experimenting literally with human life and on the other hand, the sort of transparency that we’re used to has been blocked. I don’t think that’s a good thing. And I think one of the fascinating open questions about capital punishment is whether this court would accept for review a case about lethal injection secrecy laws, and whether or not that challenge would gain the support of Justice Kennedy to get that fifth vote.
Lithwick: Now, of course, the counterargument to what we’re talking about is what went down in Oklahoma last week. Again, we’re talking about Richard Glossip. Let’s bracket the fact that no court has found him guilty of actually murdering anyone. This is a murder-for-hire case. But even notwithstanding the claims of innocence in this case and the folks who have come forward now to say, “I got to tell you, he didn’t do it,” we had a colossal cock-up at the state level, and it wasn’t anything to do with, I don’t think, death penalty abolitionists.
It was the state that while they thought that they had ordered potassium chloride, they somehow got a batch of potassium acetate. Then finding out right before this was supposed to be set in stone and confirmed days before, and as the execution time passes, the Supreme Court declines to get involved, Oklahoma suddenly says, “Oops, we’ve got the wrong drug.” That’s how that went down?
Cohen: That’s how that went down. And, again, that has nothing to do with whether or not Glossip is innocent, whether or not he got the federal habeas review to which he was entitled, whether or not the use of jailhouse snitches is worthwhile, whether or not the proportionality involved here is legitimate when you have the person who actually does the killing gets the life sentence because he happens to make it to the prosecutor first to make a plea deal while the person he conspired with who didn’t do the shooting gets the death penalty. All of that is apart from what happened last week with Richard Glossip and what’s continuing to happen this week with the new revelations out of Oklahoma.
There is a great deal of chaos in an area of criminal law that really can’t have chaos. I think that’s part of what Justice Breyer was talking about in June when he was talking about the arbitrary and capricious nature of capital punishment. Again, to me a case that would come to the court this term or next term with the present makeup of the court I think would fail.
But I do think we are seeing and I think we will continue to see a more aggressive approach to nibbling around the edges of capital punishment in a way that you would think and hope would make the process a little bit more fair than it is today, a little less arbitrary, a little less capricious, a little less rooted in racial inequality which we’ve seen for many years.
Lithwick: And that puts aside even the claim that once you’ve marched someone to and from the death chamber enough times, it starts to look an awful lot like an Eighth Amendment violation in and of itself.
Cohen: I think that’s right, and I think that I don’t know that Richard Glossip’s very aggressive attorneys are going to raise that issue. I don’t think that the Supreme Court was going to rescue Richard Glossip. I think if Oklahoma had done what it was supposed to do, if it had followed its execution protocols last week, Richard Glossip would be dead. I think the Supreme Court has had plenty of opportunities to rescue him. I just don’t think that they feel that this is such a strong case of innocence or that there has been some stone not left unturned to warrant the relief that he has been seeking.
Lithwick: So let’s turn to this week at the U.S. Supreme Court where, as I said, there are already six cases at least that have to do with capital punishment on the docket. None of them squarely presents the issue you and I are talking about, which is, does the whole thing have to be ended? But one of those cases that comes up this week is a really horrific, horrific murdering/killing spree in Kansas v. Carr and Kansas v. Gleason.
One of the things that arises in this case is, while it’s supposed to be a pretty technical case about whether the two brothers who are poised to be executed should have separate trials and whether the jury needed to be instructed in a certain way about mitigating circumstances, what comes out is echoes of last year’s hostility between the justices that we heard in the Glossip case. So I’m going to play you Justice Scalia taking a shot this week at oral argument at Justice Breyer.
Male Voice: There are currently nine under sentence with a 10th—
Justice Scalia: Which would suggest that Kansans, unlike Justice Breyer, do not think the death penalty is unconstitutional and indeed very much favor it, which might suggest that a retention election that goes before such people would not come out favorably for those justices who create Kansas law that would reverse these convictions. I’m just speculating of course.
Lithwick: So, Andrew, I wonder if you can tell listeners who aren’t as up on death penalty intramural, internecine wars at the Supreme Court what Justice Scalia is talking about when he’s saying in secret code, “nah-nah, Justice Breyer.”
Cohen: Well, he’s alluding to Justice Breyer’s dissent in Glossip in June in which Justice Breyer said, “the time has come to re-evaluate this.” There’s plenty wrong with the system, and there is an open question about whether capital punishment itself, the core of it, as applied by the states has gotten so bad again that it deserves to be held unconstitutional the way it was in 1972 in Furman v. Georgia. That was the case that for a brief time anyway ended capital punishment in America.
I think a lot of people who follow the debate today would be well-advised to go back and not just read that Furman case in ’72 and not just read the case that overturned it in 1976, the Gregg case out of Georgia but also read some of the great nonfiction work out there that describes the political process that happened between those two decisions.
There was a vast amount of public anger after the 1972 decision that did away with capital punishment. People were furious. The law and order community was furious. And I think that very much shifted the public perception about capital punishment to the point where the court felt it had to do something. That has to be the concern of Justice Breyer and Justice Ginsburg and anyone else on that court who is inclined, I would think, to really take a hard look at capital punishment the way it’s implemented today.
Someone who has looked at that history from ’76 to now could see improvement in some of the processes certainly from the way it used to be. Someone also can look at and say, “my gosh, there are 10, 20, 30 things still systemically wrong with the way the death penalty is implemented.” And unless states are willing to spend the time and the energy and the money to fix those things, there really isn’t a fair and constitutional way to do this.
Lithwick: It’s probably worth pointing out, Andrew, that at that place where there’s real outrage about the possibility of doing away with the death penalty, that’s when you see the justices at oral argument doing what they did in Glossip, doing what they did this week in the Kansas cases, which is painstakingly detailing the harrowing nature of these crimes.
Cohen: Yeah. Every time the justices do that, it reminds me of every single attorney general brief or prosecutor’s brief that you ever read in any criminal case involving a murder from the time you’re in law school on. Every time there’s a brief filed in a criminal case involving a murder, the prosecutor’s brief is a richly detailed account of the crime. The defense brief in a paragraph summarizes what happens and then moves on to the inequalities and inequities that occurred pre-trial, during trial, and post-trial.
It’s very clear that there is what? Four, five, six votes on the court at least now in favor of capital punishment. It’s very clear that Justice Scalia is going to be angry if the death penalty is abolished by judicial fiat as he probably will call it. That doesn’t mean he’s right or wrong. It just means that that’s the way he’s going to approach this coming fight.
Again, to me—and you and I have talked about this—the key to all of this is Justice Kennedy. He’s the one who’s talking about solitary confinement and the Eighth Amendment. I think he’s very curious to limit solitary confinement. I think he’s very much on board with the idea that the Eighth Amendment has sort of been overlooked over the past few decades. I think if the liberals on the court can get him along on some of these capital cases, then I do think you will see some restrictions on the use of capital punishment.
I don’t think it’s going to happen in this Kansas case. The Kansas case, though, raises significant issues that have impact in other states, the role of judges in the death penalty process. You have states that have judicial overrides where a jury can come back and say “life” and an elected judge who has to run for re-election will come back and say, “no, no, Jury, I’m going to impose death.” I’ve covered a few of those cases in the last couple years. They sort of turn on their head what most people think is common practice in capital cases that ultimately a jury decides whether you live or die.
Lithwick: That’s actually one of the cases the court will hear in fact next week has to do with a Florida case that really goes to this question of whether the judge gets to veto the jury’s decision.
Andrew, I wonder if my last question to you can just be completely ephemeral, and it’s this. The Pope visited this year, Pope Francis, and spoke at a joint session of Congress. This was unprecedented. And one of the things he did, when everybody was apparently already on their feet applauding for something else, was call for the end of the death penalty quite strongly and unequivocally, catching a lot of folks on their feet clapping who probably would’ve preferred to be sitting and scowling.
It’s well-noted that a lot of the Supreme Court justices did not attend that session. But do you think it matters at all to the court that the Pope came to America and one of the things that he chose to just beat down the American public on was this issue that how can you still be doing capital punishment?
Cohen: I don’t. I don’t think the justices care one whit, even though six of them are Catholics, what the Pope says. I think that if you’re looking for a religious link to the changing perceptions about capital punishment, it’s there. It’s there more from fundamentalist and other Christian groups that are linking opposition to the death penalty to the right for life concept.
I think you’re also seeing it more broadly in criminal justice reform where conservatives—very, very religious people who have traditionally been very, very tough on crime—are starting to talk more about forgiveness and starting to talk more about redemption and rehabilitation and so forth. Those are very powerful forces especially among Republicans who obviously control the destiny of criminal justice reform in Congress. That is something that I think is being reflected in the poll numbers and in policy far more than what the Pope said. The Pope was essentially echoing what has been Catholic doctrine for a long time now. The fact that the Catholic Church opposes the death penalty is not a new story.
Do I think the optics of it were significant? I don’t even know that I think that. I’m sure the death penalty abolitionists were delighted. I think that the governors of these states that are executing people, I’m sure, are impacted. They’re sort of woken up when the Pope writes a letter as he did last week to say, look, you shouldn’t do this. But in the end they’re going to make their own political choices and their own legal choices, and I think the Pope is probably far down on a list of priorities.
Lithwick: Tell us for one minute about the Marshall Project, Andrew, because it should be something that anybody who listens to this show is pulling up every morning.
Cohen: Well, sure. The Marshall Project is run by Bill Keller, formerly the editor in chief of the New York Times. It is a nonpartisan, nonprofit news organization online devoted to the coverage of criminal justice. What we try to do is explain the inexplicable, which is where criminal justice has been and where it’s going and why. We try to do it every day. There’s a great morning email that I work on, it’s called Opening Statement, that sort of gives people in the morning a rundown of the 20 or so top stories and commentaries and features that people might want to read if they’re interested in criminal justice. And then we try to do investigative pieces that we think have impact. We try to do shorter stuff that we think people will be interested in, all designed to sort of capture the wave of interest in criminal justice reform as the end of mass incarceration seems to be approaching.
Lithwick: Andrew Cohen is the commentary editor at the Marshall Project. He’s also the legal analyst for 60 Minutes and CBS Radio News and a fellow at the Brennan Center for Justice. Andrew Cohen, thank you so very much for joining us this week on Amicus.
Cohen: It’s my pleasure, anytime.
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And that is going to do it for this week’s episode of Amicus. As always, we love to hear what you thought, and we love to hear more about what you’d like to hear more of on this podcast. You can always reach us at email@example.com. Thank you for your letters. If you could also take a moment, if you haven’t done so already, to help us spread the word about this podcast by leaving a short review on our iTunes page, we would be every so grateful. Just search Amicus in the iTunes store, and look for the ratings and reviews tab, and thank you for your kind ratings. You will find all of our past shows at slate.com/amicus, and if you’re a Slate Plus member, you can find transcripts there as well. If you are not a member, you can always sign up for a free trial at slate.com/amicusplus.
Thank you as ever to the Virginia Foundation for the Humanities, where our show is produced, and to Oyez, which provided this week’s excerpts from the Supreme Court’s public sessions. Oyez is a free law project of the Chicago-Kent College of Law, part of the Illinois Institute of Technology. Our producer is Tony Field. Andy Bowers is our executive producer. Amicus is part of the Panoply network. Check out our entire roster of podcasts at itunes.com/panoply. I’m Dahlia Lithwick. We’ll be back with you next week for another edition of Amicus.