S1: Earlier this week, the Supreme Court did something it does very rarely. It issued a major opinion, a life or death decision at 2:00 in the morning.
S2: Normally, when the Supreme Court issues a late night order, it means that someone has been burning the candle on a dissent.
S1: Mark Joseph Stern covers the Supreme Court for Slate. He was waiting on this opinion, and I think that’s what happened here.
S2: It looks like Justices Breyer and Justice Sotomayor are both penned these dissents kind of at the last minute because the court did not have this case on its docket until suddenly the defendant here or Daniel Lee was banging on the courthouse door saying, please don’t let them kill me.
S1: But a few hours after the Supreme Court’s ruling, Daniel Lee was executed, five out of the nine justices ruled the lethal injection that the federal government planned to administer was perfectly legal. This decision was the culmination of months of planning on the part of the Justice Department, which had originally scheduled Lee’s execution for December. It fulfilled a Trump administration promise. No more waiting around for prisoners on federal death row.
S2: And I think what the Trump administration and what Attorney General Bill Barr had been trying to do here is just relentlessly rescheduling these executions, almost like an office assistant who knows a meeting really has to happen and doesn’t want his boss to keep blowing it off, just like keeps throwing it on the calendar. And yes, things intervene and yes, it gets delayed. But if it just keeps going up there enough times, eventually it will happen. That was Bill Barr’s strategy. And as of Tuesday morning, it worked.
S1: After the execution took place, William Barr released this statement and he said today, Lee finally face the justice he deserved. The American people have made the considered choice to permit capital punishment for the most egregious federal crimes. And justice was done today. And I read that statement. And I just thought, has the American public made a considered choice here? Like when we consider the choice. What do we actually say?
S2: Yes, well, that may be a question for a priest or a rabbi. In the death penalty space and anti death penalty space, there’s been this kind of long stretch where people would say, well, it’s been five years without a federal execution. Ten years without a federal execution. 15 years without a federal execution. And so it felt like a kind of momentous occasion that this nearly two decade long stretch has come to a screeching halt.
S3: Today on the show, why this week’s ruling means Daniel Lee isn’t going to be the last federal prisoner put to death. In fact, two more executions have been scheduled for this week alone. I’m Mary Harris. You’re listening to what next? Stick with us.
S1: The events around Daniel Lee’s execution are brutal. Lee was strapped to a gurney for four hours early Tuesday morning while the courts decided his fate. His lawyer wasn’t even notified before the lethal injection was carried out. I want to start by talking about why the federal government is even executing inmates in the first place because they spent so long not executing inmates. So can you tell that story a little bit? What what happened when Attorney General William Barr took office?
S2: Right. So Attorney General William Barr came in and he said no more of this namby pamby soft on crime Obama stuff. I’m going to resume federal executions. Federal executions had stopped under George W. Bush’s first term and remained on pause because we really have not, as a country figured out a humane, practical and widely accepted way to commit state sanctioned murder. What we mostly do in this nation is lethal injection. The problem with lethal injection is that it was really devised to make death seem like a gentle slipping into unconsciousness and then into death when given to humans, though, these chemicals can have unusual reactions and very violent and unpleasant reactions. And so we have tinkered with this process for years and years. There was for a long time this three drug cocktail where the first drug was supposed to put you to sleep. And the second drug was supposed to paralyze you. And the third drug was supposed to stop your heart. But people were staying awake and they were saying that they could feel their whole body on fire as if they were being burned to death.
S1: These botched executions made it extremely difficult to carry out the death penalty in the United States. Drug manufacturers started refusing to sell lethal injection drugs to prisons on moral grounds. The EU even banned the export of these drugs to the U.S..
S2: Justice Samuel Alito has famously called this the guerrilla war on the death penalty. He complains, along with his fellow conservatives, that the death penalty has stopped in many parts of the country, not because the people want it to, but because these drug companies and foreign nations are refusing to supply these chemicals and abolitionists. Opponents of the death penalty are exerting strong political pressure on them to continue doing so.
S1: So how did William Barr and the Justice Department settle on this one drug, pentobarbital?
S2: So this drug is widely available. It’s much easier to obtain than the drugs in the three drug cocktail that was used for so long. And so Barr said, look, we have access to pentobarbital. It has been used in the past to execute people and it has seemed to work. And so we’re just going to give people a big old overdose of it. And that will be our method of execution.
S1: Now, physicians had stood up and said, no, actually giving this overdose of pentobarbital can be really bad, right?
S2: Yes. The problem with this drug is that it appears to induce this condition called flash pulmonary edema, which produces this sensation of drowning and asphyxiation, as best we can tell. It makes you feel like you’re sort of being waterboarded by a chemical. And you start to thrash about. You feel intense pain, excruciating suffering and all most of the medical data indicates that you feel it before you die. So the Justice Department came in and said, we understand that some people think that pentobarbital causes this condition and we get that it has been observed to cause this condition. But we think it only happens after the prisoners have been rendered unconscious. So it may look like they’re writhing in agony, but they’re probably already out of it. So it’s perfectly humane and constitutional to kill them this way, because to the extent they’ll experience pulmonary edema, their brains will be switched off and they won’t even know they’re going through it.
S1: And this was the question that the courts were trying to resolve when the case came before the Supreme Court this week. Right.
S2: That’s right. And it was a pretty narrow question because Daniel Lee and his fellow inmates on death row had just asked for a dose of an opioid before getting the pentobarbital, an opioid like morphine or fentanyl that would dull their pain and render them sort of like half asleep in a in a state of calm euphoria. So that if they did experience pulmonary edema, then they wouldn’t actually. Feel the physical suffering. They would just sort of drift off. And so it wouldn’t seem like a big ask to just give them some fentanyl. I mean, that is a legal substance. The government could certainly get its hands on it. There’s no EU export ban on its. And yet the Justice Department said no because it seemed to see this objection as just another frivolous attempt to delay the execution. And that’s how the Justice Department framed its opposition to this. They said, look, we’ve seen so many objections already. They oppose the chemical. They oppose the method. They say they deserve clemency, yadda, yadda. We just want to kill this guy already. And we don’t think that you should take seriously his last minute claim that he deserves an opioid before he’s put to death.
S1: It stood out to me that in this ruling from the Supreme Court that allowed the execution to move forward. No one authored it. It was just an opinion without someone standing behind it. That’s pretty rare, right?
S2: It is relatively rare, but it is increasingly common for these late night decisions that the court hands down that cause public backlash. For instance, the instantly notorious decision that forced Wisconsin voters to either go to the polls in person or forfeit their right to votes from the Supreme Court. It was also unsigned. No justice wanted to put their name to it. And I think what’s going on behind the scenes is the five conservatives convene and they all agree. But no one justice wants to author the opinion. And all of this is happening on a super accelerated schedule. They just want to get this out there in the world. And the only reason we know which justices joined it is because the other justices, the liberals dissent. And when they dissent, they do so by name. So you have to actually deduce which justices constituted the five and the majority here.
S1: Daniel Lee was on death row for triple murder. And the facts run his case are horrific. Back in 1996, Lee killed two adults and an eight year old child while he and a coconspirator were looking for guns and money to fund their white supremacist organization.
S2: Obviously, this was a terrible crime and I don’t want to downplay the details here. But what seemed to come out at trial was that Lee was not the ringleader of this plan. Lee’s co conspirator was the ringleader. And basically Lee went along with it. But he, according to testimony at trial, a fair amount of evidence came out that that it wasn’t even Lee who killed the child, that it was his coconspirator, a guy named Chevy Kiho. Now, here’s another interesting fact. Chevy Kiho is still alive and he will remain alive because he was sentenced to life in prison while Lee was sentenced to death, even though they were both accused of the exact same crime. Accused of the exact same crime. Both convicted of murder. And it was established very clearly at trial that Kiho was the ringleader.
S4: And so you have this weird situation where the guy who who spearheaded it all and who actually committed the most egregious murder got life in prison, whereas the guy who tagged along with him ended up getting the death penalty.
S1: And I think it’s notable that both the judge in the case and the prosecutor didn’t think that Daniel Lee’s sentence was fair. The judge even wrote this letter where he kind of it’s a little bit of a mea culpa, like, hey, there were some misunderstandings here. And this is just my opinion. But this doesn’t seem to make sense.
S2: Right. So the judge later said essentially, I’m sorry that this was a bad sentence.
S4: And the federal prosecutors at the time of the trial asked the Justice Department to reduce the requested sentenced to life in prison and say we’re fine with life in prison for Daniel Lee. And the Justice Department refused. And I think that all of all of these side notes help to explain how the death penalty is chest so incredibly arbitrary in the way that it is imposed, in the way that it is meted out, because there are murder trials in this country all the time where people are convicted of heinous crimes and brutal acts. And those people may be tried in states that still have the death penalty, but they are sentenced quite often to life in prison. The sentence of death is so random that it is often compared to getting struck by lightning. It is unclear why occasionally judges and juries decide that death is appropriate. One reason is certainly racism. We have a lot of statistics that show that race factors in here, especially the race of the victim. Black people are more likely to get the death penalty. People who kill white people are more likely to get the death penalty. But there’s also just this overall arbitrariness where it seems to come down to the whims of the jury. It’s very difficult to predict when this sentence will be handed down. And so that kind of makes you wonder how is this really serving as retribution and how is this serving as a deterrent? How is this persuading other people not to commit these crimes when the odds of getting death are really low? And it seems really random. And frankly, it seems that if you can afford a good lawyer, you’re not going to get a sentence of death. It is people with bad public defenders who often wind up with these sentences, which means it wasn’t really about the heinousness of the crime. It was about the quality of the defense.
S1: Well, you’re raising this really important question, which is who is the death penalty for? And Bill Barr kind of tried to answer that question in one of his statements about this execution, where he said the reason why we needed to do this was because the family of the victims needed justice. And what’s so interesting about that is that the family of the victims had been really clear that they didn’t support Daniel Lee’s execution. And not just that they’re the mother of one of the victims, was a Trump supporter and recorded a video saying, I don’t believe that this man should be executed.
S5: If I could talk personally to President Trump, I feel he could feel my heart. No, I don’t want this to happen. I believe that he should do annually clemency for what he did in prison without any chance of parole.
S4: Right. And so it’s it’s important to note that these these family members of the victims do not have a political agenda and cannot plausibly be accused of that. We sometimes see prosecutors trying to dismiss families of victims who oppose the death penalty as basically just bleeding hearts who are trying to push their agenda. That is obviously not the case here because this particular family member is a staunch supporter of Donald Trump. And she said, I don’t want this. Do not do it in my name. She actually tried to halt the execution and an earlier lawsuits because she felt that if she couldn’t stop it, she was at least obligated to attend. But she could not attend during Cauvin when it was basically impossible to fly, especially for an elderly woman. And so she said, please, Department of Justice, just delay this execution so that I can at least be there. And the Department of Justice said no and fought her successfully in court. And I think the Department of Justice, like virtually all prosecutors, has no use for victims and victims families who don’t fit into the victim industrial complex, by which I mean the entire structure by which victims are lifted up as voices for harsh, draconian criminal laws. We’ve seen if you ever go to some kind of press conference where law enforcement is opposing criminal justice reforms, you can assure yourself that there will be victims and victims, family members there who will stand up and say, you know, my mother was murdered and I don’t want the killer going free or my sister was assaulted and I don’t want more people to suffer that same fate. And who has the heart to tell those victims you’ve been misled? These these these draconian sentences are not deterring crime. They are not stopping violence. They are not helping. It is very difficult to look victims in the face and tell them that. And prosecutors know it. And so they exploit these victims and they rely on them to provide humane cover for fundamentally inhumane policies. And that’s what Barr tried to do here. But it didn’t work because the families were so vocal in opposing this execution that I think pretty much every write-up of Lee’s death. DOTD Bar said the family members wanted this. But the family members truly did not say it didn’t work.
S1: It didn’t stop them either. Right.
S4: Of course not. It did not stop him. So I guess maybe it did work. It it didn’t work in terms of publicity, in terms of William Barr, say, calling a press conference and holding hands with a victim’s family member and telling them you have closure, which is surely something he must have envisioned. And instead, this happened in really the dark of night. The Supreme Court issued this terrible order and then the guy is strapped to a gurney for four hours. Finally, all of the other appeals are cleared away. And at eight o’clock in the morning, he is unceremoniously put to death.
S1: On Wednesday afternoon, the Supreme Court allowed another execution to move forward with the four liberal justices opposed once again. Mark says this is one of three executions the bar wants to perform in the coming weeks.
S6: Look, if you go read what the Supreme Court said in the wee hours of Tuesday morning, it looks like the Justice Department has a trump card here that every time an execution is blocked. The Justice Department can text the five conservatives on the Supreme Court and say, hey, yo, give us what we want. And the justices, well, they might not sign their name to it. They might do it in the dark of night, but they will give the Justice Department authorization. And so I think we’re going to see more executions soon. But I don’t think it will become the new normal. Why not? Because even though Barr has tried to accelerate this and even though the Supreme Court has helped him to speed up these executions, each one is still a massive undertaking, a huge burden, a drain on the time and energy and resources of the Justice Department and of different U.S. attorneys offices around the country. And it’s notable that Barr did not release a list of 20 or 30 or 40 people. He he kind of set his sights pretty low. He set the bar pretty low, so to speak, and he decided that he was only going to pick a handful of people to use as examples. It is very clear that these people are being used as examples. He is not going to go down the list and execute everyone who has been sentenced to death. I think that bar wants to normalize this. He just can not do it. There are too many obstacles. There are too many roadblocks. And it’s too dirty of a business for him to make it just another normal part of American life, the way he so obviously craves.
S7: Marches of Stern, thank you so much for joining me. Thank you. Mark Joseph Stern covers the Supreme Court for Slate, and that’s the show. What Next? Is produced by Daniel Hewitt, Mary Wilson and Jason de Leon. We’re getting a little assistance this week from our fill-in producer, Daniel Eavis. We always get a boost from Alicia McMurry and Allison Benedikt. I’m Mary Harris. I’ll get you back here on Monday.