What It Took for a Red State to Pause Executions
Mary Harris: Just a warning here at the top in today’s show, we’re getting into what it’s like to experience the death penalty in America right now. We are not explicit, but we are specific. All right. Here’s the show.
Mary Harris: Liz, how many executions have you attended?
Liz: Wow. At this point. Um, let’s see.
Speaker 3: Oh.
Liz: For four executions. An autopsy of an executed man and a couple of those executions were botched and failed.
Mary Harris: That seems really brutal.
Liz: And I have I have one coming up in December as well.
Mary Harris: Liz Bruenig is a writer at The Atlantic. For the last few years, the casual cruelty of the death penalty has been an obsession of hers. She has submitted letter after letter to corrections officials all over the country asking to observe executions. A lot of the time she gets turned down. She keeps track of each inmate anyway.
Liz: My kitchen wall is a chalkboard, and I do have a big calendar of executions.
Mary Harris: Really?
Liz: Mm hmm. The other side of it is the weekly menu, which is like, you know, chicken strips, carrots and corn.
Mary Harris: My gosh. For months, you’ve been focused on attending executions in Alabama. Why Alabama?
Liz: Alabama has an attorney general, Steve Marshall, who’s very interested in executions. He seems to find setting execution dates to be politically expedient. He was just elected the head, I believe, of the Republican Attorney Generals Association. And he seems to be like someone who might be hanging around in Republican politics for a while. And executions seem to be part of that plan. And so I’ve had my eye on it.
Mary Harris: It makes sense then, that back in the summer, when an execution in Alabama seemed to go wrong, Liz noticed right away she hadn’t been able to be in the room when this prisoner died. His name was Joe Nathan James. So she decided to do something else. She arranged for an autopsy to try to figure out exactly what happened to him. And then she flew to Alabama to witness it. James had been put to death with lethal injection, but Liz says if you think that means his death was not violent, you’d be wrong. She’s seen the injuries herself.
Liz: I was moved most by the how sad that I felt for Mr. James when I saw him. I wasn’t disgusted or grossed out or anything. I just felt very sorrowful for him. Yeah.
Mary Harris: You chronicle all of the puncture wounds on his body. All of these attempts, it looks like, to get IVs inside him. Yeah. And then not just that, but these cuts that seemed to indicate. That. People who are executing. James kind of gave up on doing it with the needle and said, Oh, we’re just going to open this guy up and find a vein.
Liz: That’s what it looks like. It’s important to know that before a person is executed in Alabama, they’re on death watch. They’re kept under constant supervision. It’s not as though this could have been self-inflicted or inflicted by another inmate and no one would have had any record or recollection. And these appear to be relatively recent injuries. So it only makes sense that these happened in the course of the execution. And the state has provided zero explanation of how they got there. None.
Mary Harris: And despite this seemingly botched execution, Alabama kept trying to put people to death anyway.
Mary Harris: Today on the show, how one state managed to bungle not one, but three executions over the course of just a few months. And why Liz is determined to figure out what went wrong. I’m Mary Harris. You’re listening to what next? Stick around. The first sign that something had gone wrong in that execution over the summer in Alabama, the one of Jonathan Nathan James was that it took hours for the execution itself to take place. The whole time, reporters and others were just waiting when they finally witnessed James die. He was totally silent. No acknowledgment of what was happening. No final statement for Liz Bruenig. This was the detail that stuck with her because she knew that the family of James’s victim had been opposed to his execution. And James had something to say about that.
Liz: Jonathan James, according to friends of his they spoke with, was very moved by the fact that the family of his victim believed that his victim would have wanted forgiveness for him and that she wouldn’t have wanted an execution. And I believe that James, based on what I learned, did want to at least say thank you.
Mary Harris: After Liz wrote about James’s death and saw what she did in his autopsy, she couldn’t move on because she knew James would not be the last man the state of Alabama attempted to put to death this year.
Liz: I reached out to Alan Miller because I was convinced by what I had seen on Joe James body that there is no way that Alabama was going to actually pull off a successful execution.
Mary Harris: And Allen Miller was the next person set to be executed.
Liz: He was scheduled to be executed. He was next. And I was feeling a little, you know, crazy because I knew they were going to do this. But I just knew that couldn’t I just I had seen Joe James body and I thought to myself, it’s not just just not possible that they’re going to be able to do this. There wasn’t anything I could do to stop it. But I, I reached out and said, you know, I want to report on this. I want to at least tell people. What’s happening and what’s happened here. And and Mr. Miller agreed. Alan agreed, and he asked me to serve as a personal witness for him.
Mary Harris: So when you were there observing what happened with Alan Miller, what did you see?
Liz: So they brought us into the witness room, which is, you know, sort of off the execution chamber and has a single observation window. There’s a curtain that blocks access from the inside of the execution chamber. So it’s not accessible to anyone in the witness chamber. It has to be pulled aside from within the execution chamber. And we sat and we waited, but no one ever drew the curtain aside. Now, later, we learn from Alan that he had been strapped to the gurney inside the execution chamber just on the other side of the window from us the entire time.
Mary Harris: They’d been trying to stick him with needles.
Liz: Yes. They had been trying for over an hour to find venous access and Alan and they had tried his hands, his arms a foot. And it had been when they had been considering a vein in his neck that someone had tapped on the glass and apparently called things off.
Mary Harris: Huh?
Liz: We found out Alan was all right, close to one in the morning when he called his brother. And we all gathered around and listened on speakerphone as someone who was supposed to be executed that night, talked about his experience. And I was more convinced than ever that Alabama could not pull off executions and should not be given the opportunity. But they were going to try again. And that was Kenny Smith. His date was set November 17th.
Mary Harris: Yeah, Kenny Smith was supposed to be executed after these two botched attempts. One that. Work to the end. And the other that was called off. What happened when Kenneth Smith went into the execution chamber? Did he even end up getting that far?
Liz: Oh, yeah. So I met Kenny when his date was set. He asked me to serve as a witness for him. I said absolutely. I’ll be there again. I went down to Alabama. The way that witnessing works is if you are going to serve as a personal witness, home in prison picks you up from your hotel accommodation, which is near the prison. So you have to wait for a phone call where they tell you to come outside so they can pick you up.
Mary Harris: Hmm.
Liz: So I was with Kenny’s lawyer. Like, personally, we were sitting together, and they simply never called us. And, you know, we were looking at each other, and I was thinking to myself, they’ve had, you know, 30 minutes now to set an IV line. Now they’ve had an hour. Now they’ve had over an hour. They’re still not calling us. And I was realizing they’re botching it. They’re botching an execution. You know, what do you do when you know someone’s botching an execution right now? Do you call the police? I mean, what do you do? You tell them I know where a crime is happening. I know where court orders are being violated. I could tell you, but you can’t do that. So we just had to wait.
Mary Harris: Liz never made it inside to see what happened to Kenny Smith herself. No one did. But with both Kenny and Alan Miller, it seems like the state of Alabama simply ran out of time. A death warrant isn’t an open ended thing, and the execution team needs to establish two separate IV lines to follow their protocol. That meant there were plenty of opportunities for something to go wrong. Later, Kenny Smith told Liz the whole story of how getting these two I.V. lines set up became a race against time.
Liz: They set one in his left arm. Then they tried his right. They tried his hands. They considered his feet. They were looking for veins in his feet. They didn’t see anything there. They wanted to try. And so then they moved up to Kenny’s neck and a deputy warden grabbed Kenny’s head and twisted it to the side so that a doctor, Kenny believes who was present could take a, you know, heavy gauge surgical needle and run it under Kenny’s collarbone right into his neck, seeking a vein there.
Liz: But they they did not get a needle into a vein there. They just rammed a needle into tissue after giving Kenny a bunch of intramuscular injections of. We are not really sure what We don’t know what he was injected with, but they injected him with something before putting that needle in his neck. And even then there was not venous access there at that point, with time on the clock, they just gave up. They just stopped trying. Apparently they just run out of options on Kenny and didn’t really know what else to do.
Mary Harris: It’s interesting, you’ve highlighted in a lot of your coverage of lethal injection and execution in general how important anonymity and secrecy is to the process. You often don’t know what drugs are being used in, what formulations or who’s administering them. What’s interesting about what happened in Alabama, where you have three executions being botched in some way, two of them where people survived, is that you have living witnesses to who is there and who is doing what.
Mary Harris: How is that influenced your reporting? Do you know more now about who’s administering executions in Alabama and what does that tell you?
Liz: We know a lot more about the specific individuals and their profiles than we did before. That’s useful. We know a lot about how they practice their craft, and I think that is even more useful. We know, for instance, that at one point these guys were using an iPhone flashlight to try to find a vein.
Mary Harris: That doesn’t sound very official.
Liz: It doesn’t sound very official. It doesn’t sound very professional. I’ve never been to a hospital where a doctor has tried to use an iPhone flashlight to find a vein. And it suggests something about a level of professionalism that just isn’t there and a level of training that just isn’t there.
Mary Harris: It’s interesting, though. It’s like. Do you want a level of professionalism and training for this job or do you not? It’s something I struggle with. Like I don’t. They’re both alarming.
Liz: Right. And I mean, I think for me, I just default to, you know, what did the guys who are subject to the executions want? And in this case, they want an independent investigation into the Alabama Department of Corrections lethal injection regime. And I support that. I also want an independent investigation. I think the feds or some other independent agency needs to investigate their lethal injection apparatus and figure out what the problem is.
Mary Harris: After this third botched execution attempt, which is in November. Kenny Smith. Alabama’s governor called a halt to executions in the state. Right. And also said that she did want an investigation into what had taken place. Does that give you any comfort here?
Liz: Yes. So the governor of Alabama, Kay Ivey, called a moratorium on lethal injections and asked for a, you know, top to bottom review of the lethal injection process. And she said we have to get this right for victims families because we keep promising them executions. We can actually deliver basically.
Mary Harris: That’s an interesting focus.
Liz: It was an interesting way to focus it. I’m not surprised. That’s her perspective. I think for me, the Alabama Department of Corrections, even if they attempt to give themselves a serious review, I’m not confident that they’re capable of giving themselves a serious review because I think if they could solve their problem, they would have already. So, I mean, for the guys sake, I support what they want. I want an independent investigation.
Mary Harris: Which isn’t what’s happening.
Liz: Which is not what’s happening. Right. Alabama Department of Corrections has been invited by the governor to investigate itself.
Mary Harris: After the break. Are executions that go wrong? The key to ending the death penalty entirely?
Mary Harris: While the governor of Alabama has asked her attorney general to halt executions while the state investigates what went wrong over the past few months, something strange happened earlier this week.
Speaker 3: Good afternoon, everybody. Thank you for being here, everybody.
Mary Harris: The attorney general, Steve Marshall, he gave a press conference where he dug in on the importance of the death penalty.
Speaker 3: And so far as I and my office are concerned, there is no moratorium, nor will there be on capital punishment in Alabama.
Mary Harris: In this speech, Steve Marshall didn’t accept any responsibility for what happened to prisoners in the death chamber earlier this year. Instead, he took aim at reporters like Liz Bruenig, saying her empathy for death row inmates is misplaced.
Speaker 3: There’s been a great deal of media coverage, both local and national, about what happened in Kenny Smith’s execution chamber. Much of that coverage has seemingly been openly sympathetic to Smith and his cause, even with some going so far as to advocate for the abolishment of the death penalty. You on what basis, exactly? Because a cold blooded convicted killer complains about the prodding and poking of a small RV. Why? Really.
Mary Harris: The attorney general claimed he and the state Supreme Court have sole discretion in setting the state’s execution schedule and that he is growing impatient to get back to business. The question I had for Liz, though, was will the state just keep trying to use lethal injection in spite of the problems she and others have documented?
Liz: So Alabama has another method statutorily for executions, and that is nitrogen hypoxia.
Speaker 3: While the state of Alabama has finished work on its nitrogen gas execution system, it’s been authorized by state law but really never used. The Alabama Department of Corrections has not said how that system works. It’s not clear yet when or if it will be used right now.
Liz: So death by gas, essentially, they’ve been trying for years to develop a protocol for death by poison gas, by nitrogen gas, which would be probably death by a mask fitted over the face that administers poison gas to the point of hypoxia. This is a colorless, odorless poison gas. Obviously, people are terrified to work around it because it’s not clear if you’re inhaling the nerve gas or not. And so I think they’ve had significant sort of OSHA related problems trying to get this set up safely.
Liz: Alabama has struggled with having contractors who establish sort of workplace safety around dangerous and hazardous chemicals. They’ve had trouble contracting with these kinds of businesses because these businesses, when they come in and start working with the Alabama Department of Corrections, wind up being protested and then they they tend to pull out. Right. So there was, I think, a Tennessee firm that was contracting to work with the Alabama Department of Corrections on building their gas chamber. They were protested and they pulled out. Three states have nitrogen hypoxia on the books as a potential method of execution, and none of them have tried it. You know, does Alabama want to botch multiple executions and then be the first to try nitrogen hypoxia? It’s possible. And if they do, I’ll be there. Hmm.
Mary Harris: What’s interesting about the story you’re telling is that it seems to me like death penalty opponents who are doing things like protesting people who might enable the death penalty. Are actually making the death penalty operate more in the shadows, making it potentially more dangerous because it’s harder to, you know, get the OSHA people in to come look at how you’re running things. Yeah. I wonder a little bit if you think the death penalty. Kind of has to get worse in order for it to eventually potentially maybe go away.
Liz: I think, you know, in the pursuit of wrongdoing, you necessarily step away from the good. And when you’re trying to get people to stop doing wrong, you’re going to follow them to some dark places. And that’s unfortunately what the death penalty activists kind of wind up doing, is they’re trying to gum up the works. They’re trying to make it harder to achieve the death penalty. But that doesn’t eliminate the desire of the executing state to execute. And the desire will oftentimes overcome even, you know, kind of gritty and gummed up works to pull off just really bad and botched executions.
Mary Harris: Yeah, I mean, it’s interesting to look at what’s happening not just in Alabama, but in other states that are facing some of the same pressures that Alabama is. Like, I wonder if you think it’s worth talking about South Carolina, where they seem to be overhauling. How they think about executions, basically assuming that lethal injection, it’s going to go away at some point. So we’re going to need another method here.
Liz: Yeah. And the method they seem to be falling back on is firing squad. South Carolina set up a firing squad protocol, but they didn’t actually end up attempting to carry out an execution by firing squad, which I think is poignant. Right.
Mary Harris: The problem here is that the state of South Carolina has been unable to obtain the drugs necessary to perform lethal injections. As pharmaceutical companies distance themselves from capital punishment as an alternative. Lawmakers there mandated that death row inmates choose between the electric chair and the firing squad so executions could move forward anyway. Those inmates then sued A couple of months back. A judge ruled that the state scheme here was unconstitutional. But the state has appealed.
Liz: Though it’s easy to set up these protocols and talk about returning to the electric chair or firing squad or gas chamber. It’s much harder to stomach those things in person when you’re an attorney or you’re a judge or you’re a prosecutor or you’re a reporter who has lived under the regime of lethal injection just because it facially changed the death penalty and it changed the expectation of executions.
Mary Harris: What do you mean by that?
Liz: They were transformed from public spectacles of violence into these kind of private affairs that are medical and have to do with sort of a silent passive dispatching. Right. And that came to be what the public desired and what the public associate with executions. This kind of smothering in your sleep that became the face of executions. That’s what lethal injection is. And, you know, there was a time when we did public hangings and burnings and so on and so forth. And there was a desire for that in society. And I just believe that’s no longer the desire. That’s not what the justice system wants to cultivate in people, and it’s not what people actually want. I think they say they do sometimes, but I think that the revealed preference is that now that’s just not what people want to see. And so I think returning to those older protocols will be a little bit harder than people suspect.
Mary Harris: Liz, as you can see, this aversion to the death penalty even in places that seem committed to the practice. Take Texas. Texas is America’s death penalty capital. In the last 40 years, they have performed 578 executions, almost five times as many as the next highest state, Oklahoma. But even here, juries and prosecutors are becoming more and more reluctant to meet out capital punishment, not because of ethics, but simple economics.
Liz: Even in Texas, I think you can track the decline of death sentences. And largely that’s thanks to life without parole. That’s just easier to get juries to agree to. It’s easier to get folks to plea out to, and it’s easier and therefore cheaper for the prosecutors to run through the courts. So I do have some hope. It’s not all just hope that relies on people changing for the better over time and a kind of, you know, pressure towards becoming the better, better angels of our nature. It’s it’s not all that.
Liz: It’s you know, prosecutors know this is expensive. They know that it exerts a lot of pressure on smaller locations. Smaller districts have to expend a lot more resources if they want to pursue a death sentence precisely because of the associated court costs versus larger districts. Big states like Texas are well aware of this. That’s why a lot of the death sentences come from big counties like Harris, where Houston is. They have the tax base to support it, essentially.
Liz: And so, I mean, I think all of those kinds of realizations that this is kind of unfair, that it’s it’s something that is essentially supported by a particular tax base, etc., etc., has made a lot of locales, even in big states like Texas, a little bit wary of the of the death sentence thing. And I hope that pressures like that continue working against it. But I realize it’s it’s not as good as as folks deciding for the right reasons that this isn’t who they want to be. So I also hope for the, you know, a continued move in that direction.
Mary Harris: I want to make sure we get back to Alabama, because you became so close to these men and their attorneys and families who survived their botched executions, which has to be incredibly rare. What happens to them now? Like, is the state going to try again? How do you live your life after this?
Liz: So. Alan Miller settled with the state, which means they will not ever try to lethally inject him again. So he is free from that nightmare.
Mary Harris: Wow.
Liz: They deserve the right to try nitrogen hypoxia if they ever have that protocol arranged. But at least he is free from attempts at lethal injection, which he has already survived once. Now Kenny is going to get to litigate against the state with, you know, essentially the exact same claim as Alan, but worse in some ways, because what happened to him was in some sense more violent.
Mary Harris: You’ve said a bunch of times that what the men want from death row, what you’re interested in is an in an independent investigation of what went wrong in Alabama. Do you think we’ll ever really know what happened here? Exactly.
Liz: I will. No. I promise you, before I die, I will find out.
Mary Harris: What does it mean to know? Like, does it mean knowing people? Does it mean knowing, like, how those people got? What does that mean to you?
Liz: How? Why these particular people? Why them? What are the. What is their training? Why wasn’t it working? What is their perspective on what happened? What is their explanation of what happened to Joe James? I especially want their explanation of what happened to Joe James.
Mary Harris: Because he died.
Liz: Because he died and because somebody cut into his body. And I want to know what was going through their head when they did that.
Mary Harris: Liz, I’m really grateful for your time. Thanks for coming on the show.
Liz: Thank you so much.
Mary Harris: Elizabeth Bruenig is a staff writer over at The Atlantic. And that’s our show. What next is produced by Elena Schwartz, Carmel Delshad and Madeline Ducharme. We are getting a ton of support right now from Anna Phillips, Jared Downing and Victoria Dominguez, along with Sam Kim. We are led by Alicia montgomery and Joanne Levine. And I’m Mary Harris. I’ll be back in the FT tomorrow. Catch you then.