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The Right/Rite to Death: Part I
21 Plays2 years ago
In today's episode of Interactions, we want to talk about prisoners on death row and the r-i-g-h-t right to death—the right, if there is one, for death row inmates to have a say in deciding the way in which they die. For this, we’re going to be looking at the case of Michael Nance, a death row inmate who requested death by firing squad in the state of Georgia. By current law, death row inmates are allowed to contest the means of execution, which currently is by lethal injection.
But to do so, they have to come up with the alternative means of execution themselves. We’ll be getting into relevant cases like Glossip v. Gross, how retributive justice unfolds in American prisons, and discussing the ethics of what happens when the burden falls on the prisoner to decide the way they die.
In this first episode of two, we talk to Daniel LaChance of Emory University, an author and legal scholar working at the intersection of American legal and cultural history, criminology, and literary studies.
Listen now.
Check out LaChance's two books: Executing Freedom: The Cultural Life of Capital Punishment and Crimesploitation.
Recommended
Transcript
Introduction to Law and Religion in Death Row Cases
00:00:06
Speaker
Hello, and welcome to another episode of Interactions, a podcast about law and religion and how they interact in the world around us. I'm Anna Knudsen. And I'm Ethan Anthony. And for this two-part episode, we had the pleasure of speaking to Peter Woznik and Daniel the Chance about two death row cases relevant to law and religion.
Can Inmates Choose Their Execution Method?
00:00:27
Speaker
In this first episode of 2, we want to talk about prisoners on death row and the R-I-G-H-T right to death. The right, if there is one, for death row inmates to have a say in deciding the way in which they die. For this, we're going to be looking at the case of Michael Nance, a death row inmate who requests a death by firing squad in the state of Georgia. By current law, death row inmates are allowed to contest the means of execution, which currently is by lethal injection.
00:00:53
Speaker
But to do so, they have to come up with the alternative means of execution themselves.
Ethical Implications of Proposing Execution Methods
00:00:59
Speaker
We'll be getting into relevant cases like loss of v. gross, how retributive justice unfolds in American prisons, and discussing the ethics of what happens when the burden falls on the prisoner to decide the way they die. In our second episode, we're going to talk about the RITE right to death, the religious rights and rituals that accompany death made particularly salient in death row cases.
00:01:23
Speaker
For this, we'll be looking at the case of Ramirez V. Collier. In this case, John Ramirez, a Texas death row inmate, requested that he be permitted to have his pasture present at his execution, and to pray over him and lay hands on him. But Texas denied the request, and the case went to the Supreme Court. The question
Daniel Lachance on Capital Punishment Culture
00:01:41
Speaker
became whether Texas' denial represented a violation of the Free Exercise Clause of the First Amendment, and a violation of Aralupa.
00:01:49
Speaker
In this interview, we ask the question, what rights do religious inmates have on death row? You're listening to Interactions, and this is The Right to Death. Daniel Lachance is a legal scholar working at the intersection of American legal and cultural history, criminology, and literary studies. He came to Emory as an Andrew W. Mellon faculty fellow in law and the humanities.
00:02:17
Speaker
His first book, Executing Freedom, the Cultural Life of Capital Punishment in the United States, won a Choice Outstanding Academic Title Award from the American Library Association. His second book, Crime Exploitation, was released in May 2022. Co-authored with Paul Kaplan, the book explores reality television depictions of crime and punishment, from cops to dog to bounty hunter, and their place in American culture. This is our interview with Daniel Lachance.
00:02:47
Speaker
So to start off, can you talk to me a bit about Michael Nance's case? What is the nature of the quest that he's making? Right. So Mr. Nance is a Capitol defendant who has been sentenced to death and is on death row in Georgia. And he has requested, given
00:03:09
Speaker
the kind of recent challenges with lethal injection executions, he has claimed and wants to be executed by a different method of execution. And so the Supreme
Supreme Court and Lethal Injection Challenges
00:03:25
Speaker
Court has ruled in some prior precedents over the last 10 or 15 years
00:03:29
Speaker
There have been a bunch of challenges to the constitutionality of lethal injection. And the Supreme Court has upheld the legality of lethal injection as a method of execution. It has said that it is not cruel and unusual, but it has acknowledged to some extent the problems that have accompanied lethal injections.
00:03:50
Speaker
and has essentially created a doctrine that says you're not entitled to a painless execution. Was this Alito who said you're not entitled to a painless execution? I believe so, yeah. I believe it was Alito, you know, or the majority in that decision that, you know, he might have been writing Foreign Glossop. But the, essentially you're not, you know, the court's doctrine is you're not entitled to a painless execution, but
00:04:17
Speaker
If you can point to another readily available method that the state can use to put you to death that is substantially less likely to cause unnecessary pain, then you may have a case.
Moral Views on Execution Method Choice
00:04:33
Speaker
So why is it the prisoner's job to decide, like, decide the alternative means of execution? Why is that his burden? Right. And not the state's?
00:04:42
Speaker
Well, I think partly because the court, I mean, there's kind of these sociological reasons, which is the court has become more conservative over time. So the kinds of justices that are sitting on the court that would be, say, open to, that would see these kinds of things as perverse and would be open to sort of thinking about painful executions as inherently unconstitutional.
00:05:09
Speaker
they're just not there, right? So politically the court has shifted rightward over time and so there's just not a majority that is willing to give a lot of wiggle room to folks coming forward and challenging the constitutionality of death sentences. And so
00:05:26
Speaker
Yes, I think to folks that are against the death penalty who see it as an evil, there's an extra layer here of a perversion of saying to a defendant, you need to pick which way to die if you don't want to be put to death by this particular method of execution and you need to, you know, the burden is on you to then, you know, concoct a
00:05:52
Speaker
an alternative and to prove that it's less likely to go wrong or it's less likely to inflict undue or unnecessary pain and that it is superior to lethal injection.
00:06:04
Speaker
And it is quite perverse, as you say. He's not requesting not to be executed. That's not what's under discussion here. He's just requesting a different way of dying. Maybe a more painless death, maybe a more dignified death. Is that kind of the pattern that we're seeing in recent court cases dealing with
00:06:26
Speaker
Yeah. I mean, I would say, you know, it's perverse depending on your perspective. Okay. So for folks that are, and I think for some of the justices who believe in the morality of the death penalty as well as its constitutionality, you know, what they would say is these offenders didn't give their victims options on how to die, right? They inflicted very painful, gratuitously
00:06:48
Speaker
you know i mean all murderers gratuitous right but like but you know they you know in many cases it inflicted extreme pain and so the the very fact that the state regulates pain is giving them something that they didn't give to their own victims right so it really is i mean it really it does depend on your
00:07:10
Speaker
perspective about the morality of the death penalty right and if you think of this as a retributive kind of punishment there's a way in which you could make the argument that you know from one point of view it's perverse to say choose which way to die right it's torturous it's a form of psychological torture but from another perspective one that sort of is really thinking a lot about the harm that's being
00:07:34
Speaker
recompensed via the execution. This is a way of making the violence of execution qualitatively different from the lawless violence that that execution is punishing, right? So that being able to say we want to minimize pain, we are going to shift the burden to you on how to do
Humaneness vs. Cosmetic Concerns in Execution Methods
00:07:54
Speaker
that. We think this execution method does not violate the Constitution in terms of inflicting gratuitous pain.
00:08:03
Speaker
But if you can point to something that is better, then the burden is on you to do that. Now Michael Nance has requested firing squad. And if we're talking about punitive eye for audit justice, why are people uncomfortable with that? That's a great question. So the history of methods of execution in the United States is the big pattern that historians see in it.
00:08:28
Speaker
It's a history of what I call dark optimism, right? Dark in the senses that we're talking about how to kill people. Optimistic in the sense of having this kind of persistent faith that the development of technology and the development of human sensibilities
00:08:45
Speaker
is leading us to find methods of execution that are going to be quicker and more painless than our older methods of execution. So hanging was the modal form of capital punishment until New York State did the first execution by electricity in 1890 on a man named William Kemmler.
00:09:05
Speaker
And at that moment, there was this real outcry over the history of how barbarous hangings were. Sometimes if the rope was too long, the victim would be decapitated.
00:09:21
Speaker
At other times, if the rope wasn't long enough, the neck wouldn't break and they would strangle to death. It was hard to look at, right? You'd see a body that was swinging and struggling. And it took a long time, right? You look at newspaper accounts anywhere from 12 to sometimes 26, 28 minutes of a person dangling there to ensure that they were dead. And so electricity had this promise of,
00:09:49
Speaker
instantaneous death with no sensation of feeling, right? That all of these folks who were, you know, electricity was relatively new or humans ability to control it was relatively new.
00:10:01
Speaker
And there was this kind of real sort of almost utopian sense that we could get rid of the sort of pain and the lingering death of hanging with this very quick, surefire, easy death by electrocution. And of course, that's not what happened, right? Kemmler's execution went terribly awry, right? Yeah.
00:10:26
Speaker
you know, by all accounts, you know, it was, you know, the body was smoking. He wasn't dead after the first round of electricity went through him. The witnesses fled the chamber because it was so disgusting to watch, right? It was all, if you look at the headlines covering Kemler's execution, they were, you know, you know, they, they
00:10:47
Speaker
said things like worse than being burned alive, right? So we see the development of yet more new versions to replace electricity. That takes many, many decades. A lot of states hold on to electricity, but other states opt to develop what they think will be a more superior method than hanging or electrocution. And so in the 1920s, you have the first execution in Nevada
00:11:15
Speaker
the gas chamber, right? But of course we know that those executions have had a history of being botched, right? And so again, it's this history of Americans looking at
00:11:30
Speaker
executions that make them really uncomfortable. And then instead of saying, there's no way to kill a person that is quick and painless. Instead saying, no, we just haven't found this holy grail that we're going to continue to look for. So lethal injection, when it first emerged and was first used by the state of Texas in the early 1980s,
00:11:54
Speaker
Was that it was this new notion that this would be like putting an animal down right at the pound where you just put them to sleep? Yeah, and and what we found is or what you know folks have the claims folks have made is it's not that simple right sometimes prisoners have histories of Ivy drug use yeah that make it very difficult to get a vein right so twice in the state of Ohio and
00:12:20
Speaker
men have been strapped to the gurney and they've been poked and prodded for two to three hours in an effort to find a vein and then the execution team was forced to give up and the execution was called off because you have to have two lines to ensure there's a fail safe backup mechanism and sometimes they couldn't even find one line. You have Oklahoma where Clayton Lockett was executed in what was a horrifying 45 minute
00:12:48
Speaker
Event where they couldn't find a vein and so they went in through his groin And they didn't quite establish the line and the the drugs appeared to have gone into the tissue rather than into the bloodstream right and then
00:13:04
Speaker
uh you know the the device slipped out but nobody saw it because he had been covered up because they wanted to try to provide what they said was dignity to him to not have his you know genitals exposed to the witnesses so again there's this time after time after time there is this pattern of
00:13:22
Speaker
you know, having this confidence in the face of failure that we can get this right. So some historians have really argued that even though the rhetoric is about being more humane and it's about making it as easy as possible on the person undergoing the execution and
00:13:43
Speaker
honoring their dignity, that really what this has all been about is not ensuring that the person who's being executed is getting as painless in execution as possible, but instead making it easier for those who carry out the witness and those who watch the execution. Yes, that this is about cosmetics. The history of execution reform is less about
00:14:08
Speaker
you know, caring for the pain that the condemned may or may not experience and trying to minimize it. It's really been about cosmetic purposes. So back to your question about like, you know, why is the court, you know,
00:14:23
Speaker
If you on the firing squad, right? That's what Michael is requesting. And it's quite shocking to hear someone wants to die by firing squad. Yes, but it's the same thing. He's being put to death. Right. So different. Exactly. So the firing squad has a, you know, a comparatively
00:14:39
Speaker
much better record than any other motive execution. It's very hard to find in the historical record botched firing squad executions. But because it is bloody, because it is riddling someone with multiple bullets, and there's a lot of blood, and then somebody has to clean up that blood, and witnesses have to see that blood. There's
Impact of Execution Method Aesthetics on Legal Arguments
00:15:04
Speaker
no getting around that blood.
00:15:06
Speaker
There's a way in which we have backed away from the firing squad, not because it doesn't meet the requirements of being quick. It's hard to look at. It's hard to look at, right? So that history of, if you see the history of execution reform as driven by cosmetic concerns rather than concerns for morality and the desire to inflict the least amount of pain possible,
00:15:34
Speaker
You know, you can tell a story, but this is really not about giving the condemned person the most painless execution possible. It's about managing the emotions and the emotional response of those that have to carry out the death sentence and those who witness it.
00:15:53
Speaker
And so these cycles you're talking about, there seems to be this resurgence of people requesting firing squad deaths. There was Utah 2010, I believe, there was South Carolina recently, and now there's Michael Nance. Are we seeing this resurgence of just violent deaths in response to this aesthetic concern? Like, what does it mean for a prisoner to request this death by firing squad, this very bloody death? What are courts going to do with that request?
00:16:18
Speaker
Yeah, I mean, my hunch is that the states don't really want to put people to death this way. And, you know, some of these state legislatures, you know, like South Carolina have created this as a backup option. They might have had the electric chair as well. I saw that. Okay, was that? They have multiple fail saves. Yes. Yeah. I want to check that. Yeah, fact check me on this, but some states have
00:16:40
Speaker
you know, have put back into play the electric chair but also firing squad. It's crazy. So it's hard for me to imagine courts, you know, striking down the firing squad as being cruel and unusual punishment. Because there's no evidence? Because they're not botched in the same way?
00:17:01
Speaker
those would be very good, you know, sort of rationales, what you just said. And also because I don't think legally, you know, there's this sort of question of like, when law is being decided, right, there is the subtext and then there's the text. And I don't think textually you're ever going to see
00:17:20
Speaker
the Supreme Court say that these executions just look bloody and that's gross, right? And that violates the Eighth Amendment violation on cruel and unusual punishment. Because cruelty, I think they know they're supposed to read cruelty as the cruelty of what the person who's receiving the punishment experiences rather than some kind of like perceived cruelty, right? That the people watching it, you know,
00:17:49
Speaker
I don't think you would see courts go there, although who knows, right? Antonin Scalia, who was this famous originalist, who was a staunch supporter of the death penalty and defender of its constitutionality, even he admitted that some of the things that we tolerated in the 18th century, like ear cropping, where somebody who would be punished by having a section of their ear cut off,
00:18:17
Speaker
or branding, that that probably wouldn't pass, you know, Eighth Amendment muster. And the question is, again, comes down to
00:18:29
Speaker
It's hard to know what the court, we know there are a lot of variables that impinge on justices' decision making, but those variables aren't always legible in the decisions that they write. I could imagine a lot of these justices or folks deciding the constitutionality of the death penalty,
00:18:49
Speaker
who don't like bloody executions. And maybe they don't like it at a certain point to the point where they're like, this would be an embarrassment to have this kind of an execution on a regular basis in the United States. And so they'll find some other rationale.
00:19:05
Speaker
to, you know, that goes beyond the cosmetic. This is the subtext you're talking about. The subtext would be, ooh, this is, I don't like the image of people being burned alive or being, you know, shot to death and bleeding all over the place. But the text isn't going to be about cosmetics, you know.
00:19:23
Speaker
There is language about the evolving standards of decency in society that you can point to in the Eighth Amendment, and maybe they could talk about cosmetics, but I don't know that they would because it looks...
00:19:35
Speaker
It
Prisoner Autonomy and Free Speech in Execution Methods
00:19:36
Speaker
looks sort of callous to say, we really need to care about the optics and not the actual pain that someone is experiencing during an exhibition. Would it be possible that in their effort to advance an optical, an aesthetic death, they would somehow cut back on the prisoners' autonomy to decide their own way of dying?
00:19:55
Speaker
in the name of aesthetics or subtextually in the name of aesthetics, we might see the prisoners' right to decide their execution be lessened. Because right now what's striking to me is just the fact that you as a prisoner, it's your job to find an alternative means of death. The state isn't going to come in and look for that proactively.
00:20:12
Speaker
I think there's a lot going on here. I don't, to answer your question, do I think that they're going to roll back, you know, if defendants come up and say, you know, we want this really gruesome method, I want to be beheaded, right? That would be, you know, a good example, right? I think being beheaded is a lot more humane than what you're doing to me.
00:20:34
Speaker
They want to sort of force the prison officials and the wider world to confront what an execution is, which is a body mutilating form of violence. The body is always mutilated. It's just how legible that mutilation is to armed workers. And so you could imagine some inmates having a political
00:20:58
Speaker
desire to be put to death in a way that is legible. Does that become a free speech concern? Yeah, I mean, kind of my question is like, if you wanted your death to be a statement as a death row inmate, do they have some sort of constitutional protection to say, I would like the public to know that I'm being executed. I know that people often will read last words of death row inmates. I've seen compilations online where you can just go and see what they are. It's rather macabre, but
00:21:24
Speaker
To make a statement. Is there some sort of free speech protection that these well, you know, you can't control the state's You know operation in carrying out a death sentence and say that you have a right to die You know that the way that you are being put to death is a form of expression because it's not your expression Yeah state, you know administering a punishment. So you're
00:21:49
Speaker
there's no, I don't, I think it would be a very big stretch to sort of, you know, imagine that someone could say, I have a First Amendment right to die in a way such that my death communicates what I wanna communicate about it because if it's an- That's kind of the limits. If it's an expressive act, it's the state that's making the expression, right? And so what I actually think with these cases is that I don't think this, I think these, I mean, Georgia is fighting
00:22:17
Speaker
Mr. Nance's efforts to try to dictate the terms of his execution, right? Are they fighting it because they want to not seem as bloody? I think there's probably a lot of different reasons. I think one of the reasons why they're fighting it is they don't want inmates having power over the operations of their prisons and their criminal justice system. That, you know, they don't want to go into court and litigate
00:22:45
Speaker
you know every different defendant's idea about how you can put me to death the most humanely. And so that's why they are you know really doing procedural you know maneuvers to try to
00:23:01
Speaker
to try to stop inmates from taking advantage of the recent rights they have gained under cases that were decided about lethal injection to offer alternatives. They want to make it as impossible for inmates to prevail on this.
00:23:17
Speaker
I don't think it has anything to do with them wanting to control the cosmetics of the execution. I think it has everything to do with them wanting to say, we get to run our show the way we want to run our show.
State Motivations and Execution Costs
00:23:32
Speaker
And you don't get to dictate to us anything about what happens to you. That's not how this works. This is punishment. And so there's an emotional dimension there, but I think there's also a logistical one, which is they don't want, on a bureaucratic level,
00:23:45
Speaker
It costs time and money to give everybody these alternative modes of execution and to litigate all these. And I think some of them cynically see these condemned men and women as
00:24:01
Speaker
as trying to buy more time by just prolonging these appeals and using anything they can to have to live longer. But I also think that there is a real sense of we don't want to have to put all of the time, energy, and resources
00:24:20
Speaker
into creating and executing all of these alternatives. We want to put people to death the way we know how to put people to death, which is by lethal injection, and we don't want anyone telling us how to run our death chambers.
00:24:34
Speaker
Now you bring up that people have questioned the sincerity based on how long someone wants to live. I remember you saying that the time spent on death row is an average of 17 years now. Can you talk to me a little bit about that? Sure, yeah. I mean, the death penalty when it was revived in the 1970s
00:24:50
Speaker
was imagined by its supporters as this antidote to a justice system that they saw as written with technicalities that often let inmates, people who committed crime, from ever seeing justice. But even when they were sentenced to prison, there was this sense that prison was too soft, it was too rehabilitation oriented, and that it was a revolving door. And people would go in, who had done something terrible, and then they would be out again in three or four years, and they would do something terrible to someone else.
00:25:20
Speaker
And
Death Row Duration and Psychological Impact
00:25:21
Speaker
there was this real sense that a kind of liberal approach to punishment was creating a revolving door prison system and a justice system in which defendants had all the rights and the victims of crime had none. And in that moment, the death penalty came to be seen as a symbol of the opposite of a liberal, permissive, soft approach to criminal justice, right?
00:25:48
Speaker
It brought about finality, right? It brought about a sense of security. This person will never kill again or will never harm someone again. And it seemed like an act of moral clarity. It was a way of saying punishment shouldn't be about helping you get your act together. Punishment should be about inflicting pain
00:26:09
Speaker
to, you know, give you your just desserts for having harmed other people. So the state that was punishing with rehabilitative prison in short sentences was seen as not really punishing. And the death penalty really was this unequivocal act of holding people responsible and punishing them and giving them what their actions were worth in terms of, you know, an eye for an eye, right? A lex talionis approach to justice.
00:26:37
Speaker
So, you know, this is all to say that, you know, when we think about time spent on death row, in the 1970s, or, you know, in the 1950s, you know, before the 1970s, right, when the Supreme Court had this, you know, hot moment when it temporarily suspended executions, and there were no executions for about 10 years, while issues with the constitutionality of the death penalty were being resolved,
00:27:06
Speaker
In the decades leading up to the 70s, the average time between sentencing and execution was less than two years. The closer you get to the 19th century, we're talking months rather than years. So in the 70s, it seemed like the death penalty would be this thing that was a fast, swift,
00:27:30
Speaker
painful punitive response to crime that would give justice to the victims of crime and their families and would keep people safe. Because that person could never harm anyone again. But what ended up happening is because federal courts, after all of these constitutional remedies were implemented in the 1970s,
00:27:51
Speaker
federal courts began to more heavily supervise how everything about how states carried out their death penalty systems within their criminal justice systems. And so as a result of, you know, there's many different reasons why appeals take so long. And I won't get into them because really the point I want to make is because of much greater federal supervision of executions,
00:28:20
Speaker
we've seen over time, the average time between execution move from what it was before the 70s to 17 years on average. But also the vast majority of people who are sentenced to death aren't executed. So we've had over 10, maybe I think 10, 15,000 people sentenced to death in the United States since 1976. And we've had about
00:28:43
Speaker
15 to 1600 executions. So the vast majority of people who are sentenced to death either haven't made it yet to the execution chamber or their cases were overturned on appeal or they're still waiting. And so inmates have tried and failed to argue that because they're living under this sentence of death for so long,
00:29:10
Speaker
that that amounts to a form of psychological torture, right? That having to live every day of your life knowing that the state is going to execute you and carrying that sort of mental stress is
00:29:26
Speaker
an unconstitutional violation of the Eighth Amendment's prohibition on cruel and unusual punishment. Because you could say it's both, right? It's unusual in the sense that historically executions didn't take this long to happen, and then cruel in the sense that it's a form of psychological torture. But historically Americans have been
00:29:47
Speaker
much less likely to acknowledge psychological pain as a form of punishment or as part of the experience of punishment. Do you think we're going to see a shift in that with the conversations around psychological pain, mental health? Do you see that these... Yeah. Are we going to see a possible shift maybe for better or for worse? Not with this court. I mean, if you're thinking about at the higher levels, no, right? Not with the Supreme Court.
00:30:14
Speaker
with potentially at the lower court level, but if it has legs and it's making radical changes, it's not gonna get very far. So for instance, a federal district judge in California ruled the California death penalty unconstitutional because on average in California, the average time between sentencing and execution had risen to 25 years.
00:30:43
Speaker
And when he wrote this decision, nobody had been, I think it was like in 2000.
00:30:49
Speaker
Gosh, I don't want to say because I'll get the dates wrong, but it was it was within the last five to six years when he wrote this decision Nobody had been executed in California for since like 2005 Wow So and California has the largest death row in the country with over 700 people on it So you have all these people in solitary confinement hundreds and hundreds and hundreds of them nobody's been executed in over a decade and
00:31:16
Speaker
these people are all living with the sentence of death when this court reaches when this case reaches the court and you have this you know you have this federal district court judge who
00:31:27
Speaker
probably values the things that you were just mentioning about, yes, psychological pain is pain. And this pain is not incidental to the punishment. It is clearly something the state has the ability to control inflicting, and yet it does. And therefore, you can read the decision. But the court says, look, the California doesn't have a death penalty. It has, essentially in California, you are
00:31:52
Speaker
Sentenced to life without parole with that with the remote possibility of death. That's what that's what it's actually happening here If we if we like name what's happening, honestly, yeah, and so he struck it down He said this is unconstitutional because it's too it takes too long now in the case of California it struck down the death penalty could you see this going the other way where someone says it's taking too long and
00:32:14
Speaker
And then the court says, great, let's execute you faster. Let's expedite it. Because I see it like, oh, I hope that this argument is strong enough so that maybe anti-death penalty legislation takes hold. But I could also see someone saying, great, let's make it a faster turnaround. Right. Yeah. So I think the thing is that judge's decision didn't stand.
00:32:34
Speaker
No. The point that I'm making is that these federal judges, there's three levels. There's the district court judge, and that's who overturned the California death penalty and said it was unconstitutional. The Ninth Circuit, which is a relatively liberal circuit, was like, no.
00:32:52
Speaker
Right. Like this will never pass muster, you know, given what the Supreme Court has said in the history of litigating, you know, psychological, you know, claims about the psychological harms of incarceration. This decision doesn't will not stand. And if it goes up to the Supreme Court, they'll overturn it. So we're going to overturn it because we just know that this is a this is too radical of a decision that note that doesn't have any kind of
00:33:19
Speaker
that won't survive moving up through the federal appellate system. So California goes back to having the death penalty, right? But then we know, we've got a governor in there, Gavin Newsom, who has essentially suspended execution. So there's other things that have happened in California, but still the death penalty is on the books and you still have people on death row, blah, blah, blah, blah, blah.
Systemic Barriers to Fast-Tracking Executions
00:33:44
Speaker
But your point about what are the effects of, what would the likely effects be if the court somehow did, which it never will, say that this psychological pain, I should say it never will under its current configuration at the top levels. What would happen if they said, yeah, psychological pain is a real thing?
00:34:04
Speaker
Well, yeah, you could imagine states saying, let's expedite these executions, but it's really hard to do that, in part because of the layers of due process that people are entitled to. So in the 90s, people were complaining about how long it was taking to put people to death, right? It crept up to about 10 years on average.
00:34:25
Speaker
And in the mid-90s, Congress passed legislation called the Anti-Terrorism and Effective Death Penalty Act, which changed the game for capital punishment appeals. It made it much harder for you to get on the habeas level of review, right, which is after you've gone through, you know, there was something wrong with my trial.
00:34:46
Speaker
and you're making other kinds of claims about why you shouldn't be put to death at the state and then federal level, there was this perception that inmates were gummying up the system with frivolous appeals. And so their rights to bring new claims that were outside of the claims from their state and federal appeals were dramatically shrunk by the courts. And everyone said, look,
00:35:15
Speaker
We've put all this legislation into play that's going to make it harder and harder for inmates to even bring claims in front of the court and have their claims heard. That's going to really speed up these executions. It didn't. Part of the issue is money, right? States
00:35:33
Speaker
don't want to pay for good defense attorneys for the poor people that are charged with capital crimes. And so egregiously incompetent defenses happen in a lot of states that use the death penalty the most. Lawyers who are sleep through parts of the trial, lawyers who never bring a witness in defense, lawyers who don't cross-examine.
00:35:59
Speaker
And so the rates that the states offer attorneys to try these cases are so pitiful that few people are taking them. That's especially the case in California. No one wants to do this work because the state isn't willing to allocate money.
00:36:15
Speaker
to do it. And so as a result of this, the flaws in these trials are so egregious that even conservative, pro-death penalty appellate judges are saying, no, this can't stand. And sending these cases back to be retried, which starts the process again.
00:36:39
Speaker
because it varies so widely from state to state based on the district attorney. There's just this level of chance involved. Yep, that's another part of the puzzle, right? That some counties in Texas
00:36:50
Speaker
have not had a death penalty trial since the 70s, right? And then the county that Houston's in, Harris County, if it were a state, it's had so many death penalty trials that the number of people who've been executed who committed crimes in that one county is equivalent to, is the highest, equivalent to the, you know, is larger than the total amount of executions from any single state except Texas. So more people have been executed from this one county in
00:37:19
Speaker
Texas than the entire state of Oklahoma, than the entire state of Virginia, than the entire state of Georgia since the 1970s, right? So the DEA has a lot of power and discretion over when to seek the death penalty. And so you're right, there's an unevenness across all of these different places. But generally, the kind of common denominator, which has nothing to do with
00:37:46
Speaker
who the DA is, is how good is the representation that death row inmates or potential death row inmates, right? People charged with capital crimes for the prosecutors seeking the death penalty. How good are the free lawyers that the state is providing for them? And if you want good lawyers, you got to pay for them. And a lot of these states, nobody wants their tax dollars to go to defending murderers, right?
Prosecutors vs. Psychological Torture Claims
00:38:12
Speaker
So you just end up having, you know, there's a lot of great defense attorneys, right? My dad was a criminal defense attorney, so I'm not knocking criminal defense attorneys, you know, but what I'm saying is these are the cases that people that, you know, have a lot of experience and a lot of brain power and a lot of, you know,
00:38:29
Speaker
A lot of knowledge are the least likely to take because they don't want to take them. There's no incentive financially to take them. And so the clock just keeps running. Exactly. People just stay longer and longer on death row. But then at the appeal stage, after these people have been sentenced to death and they've gone through appeals, that's often when you see pro bono big New York firms.
00:38:50
Speaker
coming in and doing as part of their pro bono work, throwing all of these heavy hitter guns at the situation, and finding a whole new set of really legitimate things that, again,
00:39:05
Speaker
So there's really not an easy way to get back to your original question to speed up executions simply because of the economics in these states and the way budgets work, but also just as a matter of we've settled on the fact that we give people due process.
00:39:26
Speaker
and that we're going to review it at different levels, which we didn't do before the 70s very often. And so there's only so much, there's only so much, there's going to be limits to how much you can speed up executions. And so these prisoners are just going to have that psychological torture every day on death row for who knows how long.
00:39:45
Speaker
But you know what the prosecutors say when prisoners bring these cases and say this is psychological torture? The prosecutors say, well then drop your appeals. And a good chunk of executions in the United States are people who did precisely that. They're called volunteers. But these are people that decided they don't want to live.
00:40:03
Speaker
in an eight by 10 box waiting to die, they just want to get it over with. And they drop all of their appeals. So there's a kind of, again, thinking about the perspective of people who support the death penalty. For them, it's a like, you don't get to have your cake
00:40:22
Speaker
eat it too. You can't have all the benefits of getting, you know, really close inspection of your case and making sure all the T's were crossed and I's were dotted and then say that that's torturing you, right? That you are perverting and saying that you're that like too much justice is a form of psychological torture and they're saying that's an incoherent argument, right? And beyond that they're saying we all know what you're doing here, you're stalling.
00:40:50
Speaker
you're stalling for more time and then claiming that, and so we've given you more time to answer every single one of your questions, right?
00:40:59
Speaker
and then you're telling us that it's too late, that you've been on death row for too long, and you've been under too much psychological pain, right? So I think some folks, right, on the left are very much able to look at this and say, this is ridiculous, right? This is a form of psychological torture, and everyone deserves justice, but they shouldn't have to wait on death row for 17 years to be executed,
00:41:24
Speaker
and to have to live every day without hanging over their head. But folks that support the death penalty say, look, you know, if you want justice and due process you can't then say that that's torturing you.
Ethical Dilemmas for Anti-Death Penalty Advocates
00:41:39
Speaker
Now what about people who are anti-death penalty? I remember when you were writing your amicus briefing with other people that there were signatories who didn't want to sign because in some sense that
00:41:50
Speaker
If you're signing on to have a more just death, are you kind of also supporting the death penalty? Right. Well, there were people that raised that concern on the amicus brief, but they ultimately signed because there was a footnote put in, sort of disclaiming that folks that are signing this brief are not ceding the question on
00:42:10
Speaker
you know, whether the death penalty is, you know, is constitutional or is, you know, et cetera, et cetera. What they're saying is, look, if you're in a no-win position, we want these defendants to have as much
00:42:25
Speaker
agency as they possibly can. And Michael Nance is going to be executed. Yes. He should have the right to present the state of Georgia with an alternative sort of thing. But I'm sorry, what was your question there? My question is that it's still hard to try to find more just ways to die if you're not in support of the death penalty as it is. Yes, absolutely. But you're forced to try to find these alternative ways of dying.
00:42:47
Speaker
And it seems to be that there is no great way of talking. We've kind of seen that with all of these botched executions with lethal injection. Yeah, it's true. And it's, you know, my, I agree with you that it is.
00:43:05
Speaker
It seems odd for someone to fight for the right to choose a different way to die. On the other hand, I don't know Mr. Nance's interior motivations. I know the legal arguments that he's making. But for me, whatever his internal motivation is, whether it's I want people to see how bloody
00:43:27
Speaker
an execution is, you know, and to stop making it cosmetically pretty. I want people to be forced and confronted with the violence that they are inflicting on anyone they put to death, including me. Or whether it's, I really don't want to be, to be, you know, gasping for air and, and having, and being unable to communicate because I've been paralyzed or what it, you know, or having this lingering death and not being able to, you know,
00:43:55
Speaker
I don't want that torturous execution that I've been told can sometimes happen with lethal injections and I want a death that's going to be really quick and painless and maybe not painless but like over with. I don't want all of these unpredictable things.
00:44:11
Speaker
I don't want someone, I don't want to have to sit there, tie down while they try to establish ID lines. I just want someone to shoot me and get it over with. Whatever it is for him, this is a choice amongst all bad options for someone who does not want to be put to death, but whatever his motivations may be, I think those of us who signed on to this brief,
00:44:37
Speaker
strongly believe that he should be able to die with, you know, as little pain and as much dignity as possible.
Conclusion and Credits
00:44:50
Speaker
That's part one of our two-part series, The Right to Death with Daniel O'Chance. Thank you for listening.
00:44:57
Speaker
Canopy Forum and the Interactions Podcast are distributed by the Center for the Study of Law and Religion at Emory University and produced by Anna Knudsen and Ethan Anthony. You can follow Canopy Forum on Twitter or Facebook. Follow Interactions on Instagram and subscribe to Interactions on your favorite podcast platform.