Transcript
Matt Meyer:
You're listening to RadioEd...
Emma Atkinson:
The University of Denver podcast...
Matt Meyer:
We're your hosts, Matt Meyer...
Emma Atkinson:
and Emma Atkinson...
Emma Atkinson (VO):
Lawyer Alex Murdaugh, who came from a powerful South Carolina family of litigators, was recently found guilty of murdering his wife and son.
The ruling is just the latest in a winding series of tragic incidents involving the Murdaugh family. The New Yorker described the saga as one rife with “embezzlement, drug trafficking, money laundering, a faked murder attempt, a failed assisted suicide, and the deaths of three other individuals.”
Though Murdaugh’s crimes were nothing short of heinous, the prosecution decided against pursuing the death penalty in his case. This fact wasn’t lost on Judge Clifton Newman, who delivered the judgment against Murdaugh just last week.
He said, quote:
“As I sit here in this courtroom and look around the many portraits of judges and other court officials and reflect on the fact that over the past century, your family, including you, have been prosecuting people here in this courtroom… many have received the death penalty — probably for lesser conduct.”
South Carolina, where Murdaugh’s trial proceedings were held, has executed 43 people in its history as a state, 19 of them since the year 2000. Meanwhile, far fewer people have been executed by the federal government—just 50 since the year 1927. Twenty-three U.S. states have abolished the death penalty, and three others have paused executions thanks to a governor-imposed moratorium.
President Donald Trump lifted the federal stay on executions in 2020, resulting in the execution of 13 death row inmates in Terre Haute, Indiana.
Today, we’re talking to two people with in-depth or firsthand knowledge of the death penalty and how it works. University of Denver professor Sam Kamin will share his research on whether the penalty is applied consistently. But first, we hear from public radio journalist George Hale, who works for Bloomington, Indiana-based WFIU News, and who witnessed five federal executions.
George Hale:
I think the pressure of the job was definitely more in the front of my mind. Especially because I was coming into this in the middle of this huge execution spree that started like five executions prior. And so as a group, you know, not a large group, but a sizable group of journalists from all over the country had sort of figured out how all this is working, for all those executions, and I was kind of just coming in the middle of it and trying to pretend I knew what I was doing.
Emma Atkinson (VO):
There’s only so much that each state allows witnesses to see—and only so many witnesses it allows to see it.
But before any of the actual execution proceedings can begin, there is a period of time when additional litigation about the execution can be brought forth—which can delay the execution by hours or even days.
George Hale:
Depending on which execution you're witnessing, you could go to the place they tell you to go like, ‘Be here by 4pm,’ or whatever, and the execution can start like an hour from then; we could start the next day, 18 hours later or whatever, because there were three different stays of execution in like three different jurisdictions in America about three completely different things that needed to be resolved.
Emma Atkinson (VO):
But once all of the additional, last-minute legal proceedings have been settled, the process begins. George recalls gathering with other journalists at an off-site meeting location and being subjected to a TSA-like screening before being shepherded into vans and taken to the prison grounds.
The reporters are taken to one of several rooms connected to the execution chamber by a large window. The other rooms are for friends and loved ones of the person who’s going to be executed as well as the friends and loved ones of the victim or victims of the crime committed.
George Hale:
Assuming everything goes according to plan, eventually there'll be these curtains that rise, and there's windows that look inside, and the person will be already strapped down to this gurney, this weird table that has arms that like go down kind of sort of like a stick figure, with your arms down and strapped to it. And as soon as that happens, someone who's a prison official will basically tell this person, ‘You're being executed for such and such reasons. And if you have any last words like now's your opportunity to say them.’ And usually people have something to say, which can either be anything from profound apologies for the crime they committed to two cases that we witness, like adamant denials, that they had done this at all.
Emma Atkinson (VO):
George recalls the recording of the last words as one of the most important parts of the process for journalists. Of course, there’s no actual recording allowed—no phones or cameras—so it’s all up to the journalists and their notepads to make sure that they get those last words exactly right. It can be a little stressful.
George Hale:
Basically the first priority is to write down exactly what the person who's about to be executed, says, which is easier said than done, depending how used you are taking notes, how good your handwriting is, even, or how fast you can write and stuff like that. And also like, how fast they talk, or how clearly they talk and how much they have to say. And so it could vary really wildly, or widely in terms of individual executions versus another.
Emma Atkinson (VO):
Then the U.S. Marshal on site calls Washington, D.C. to get personal permission from the sitting U.S. Attorney General that the execution can go ahead.
George Hale:
Then the Marshal would hang up the phone and tell the executioner, there's no impediments, and then they would turn the microphone off. And we would all just kind of stand there awkwardly. And you don't see anything happen. Because I hadn't actually—I don't know, I hadn't actually imagined what lethal injection meant, like, it never occurred to me, like what does that mean? Just want to walk up with a syringe and stick it in your arm? It literally never occurred to me. And so when I was watching the first execution I didn't know what I was even looking for, because the person was already strapped down to the journey with these IVs connected to their either arms or, like, hands or legs that go backwards through the wall in the background. And so you don't actually see anything at all. You just see the person's reaction. It's very, very kind of creepy. Like, whatever liquid they're putting in the IV, presumably, is the same color as the saline or whatever. So you literally see no change, except for the person's reaction. Which is, when it's this method, usually something that looks like labored breathing. And then just yeah, like, kind of just breathing getting like lighter, and then it just sort of drifting off is what it looks like. We know that that's not exactly the case every time.
Emma Atkinson (interview audio):
so the Executioner is in a completely separate room?
George Hale:
There’s a wall that has one foot by one foot tiles like this kind of [holds up a sheet of grid paper] and one of the squares, it's just missing. And so like, the IV lines are just going through that square and to a room that you don't see. The room has a, I guess, a two way mirror or whatever, one way mirrors so you don't actually see them, but I presume they can see out what's going on. And I have no idea how many people are back there. I have no idea like, what the exact process is like, I know that the execution protocol basically says it's two injections of a certain amount of this drug which is designed to treat seizures. It's not designed for this. It’s presumably like injected into the IV or however a nurse would do that. I don't know. And also I shouldn't say a nurse because we have actually no idea like how qualified these people are to do any of this we don't know who they are and what their qualifications are. Obviously any medical professionals participating in this would be in violation of like, you know, basic, like medical ethics and so if they’re doctors that would be secret.
Emma Atkinson (interview audio):
Yeah, so what I find interesting is that that wall separating the executioner, and everyone else is almost like a modern executioner’s hood, right? Because that was the whole purpose so that you wouldn't see the guillotine or whatever.
George Hale:
Yeah. And I think it's just like one of the most fascinating aspects of it. Because it's like, if you have to identify which person is exactly responsible in the room? It's kind of like, well, I don't know, is it the guy who orders it? Because surely that guy plays a role, but he didn't touch anyone. He didn't do anything. He just stands there, you know; it's like, what about the Marshal that connects the line to the attorney general? Like who says, ‘Proceed,’ like, is he responsible? But then if you ask the attorney general, he would say, ‘I wasn't even the Attorney General, and the jury sentenced them to death 15 years ago, they're the ones who did that, I'm just following the law.’ If you want to get really weird and think about it is that like, the execution protocol and the witnesses there. And so in some states, I'm pretty sure that they can't carry out the execution without the media witnesses. And so it makes you sort of raise the question of are the journalists really neutral observers either, because if they weren't there, maybe this wouldn't even be happening. And I always found that to be a really interesting thought experiment and sort of how I felt personally witnessed the executions, which was that I was part of this in a way I felt really uncomfortable with, whether that's like legally true or not, I'm not entirely sure. But it is an interesting question, I guess to ask yourself, but anyway, yeah. The hooded person, it's a good analogy. I never thought about that. That's exactly what it is. The actual person doing it University ; assuming it’s one person, we don’t even know, maybe it's multiple people.
Emma Atkinson (VO):
George witnessed five executions in the late months of 2020 and early 2021: those of William LeCroy, Christopher Vialva, Brandon Bernard, Alfred Bourgeois and Cory Johnson.
Emma Atkinson (interview audio):
how did you feel? Did it get easier? As as it went on? You know, you said you felt somewhat responsible? Was there a feeling of guilt? Or? Or just tell me a little bit about that?
George Hale:
Yeah, sure. I know, it's funny, I totally expected to feel really depressed, or like traumatized or, you know, some kind of, like, PTSD, like response, if anything, and that's what I assumed because I'd never seen someone killed obviously. And, but that's not what I felt when I left, I felt like a real sense of just like, you know, shame or like, guilt, or like, something dirty, you know, like, I was just like, a part of something that I really should not have been, you know, like, it was a, I'm not saying like, logically or objectively, but I mean, like, emotionally, that was the feeling that was like, what I just done, like, what have I, like, got myself into sort of, but then, you know, all the journalists like, they listen to get to work after that. And so you kind of just push it out of your head and start typing and whatever. And recording, you know, we're obviously reporting for radio station and PR, and so kind of, I guess, put it out of your head in that way, because you have too much to do. Yeah. So the more I learn, though, about the chemicals that over time, the more troubled I guess I became about like, the whole, the whole Yeah, like participating in it at all. And like I said before, but I can just, like repeat it just in case like, you know, I think there's like real questions about what, what purpose, we're serving to the public, by witnessing execution that's done in this way, because there's so little to actually witness and so it makes you wonder if what you're reporting to the public, like, for example, oh, he appeared to drift off, if that's not actually like giving people misinformation, you know, like, almost, maybe it'd be better to say nothing, because you don't want to, like, you know, contribute to misunderstanding. And I think that lethal injection is a real risk that you're like, giving people information that's not accurate. Because we just don't know. So anyway, but so yeah, I guess my feelings changed over time. more I learned about, like lethal injection, and how like, how, like limited the, like, how limited our options were to even like, understand what was happening.
Emma Atkinson (VO):
George says his feelings about the death penalty remain the same following his experience witnessing the executions.
He says he’s always been skeptical of the death penalty as a public policy and remains so today—and strongly believes that it is a racist institution.
George Hale:
I was definitely skeptical of the death penalty for a variety of reasons, just as a public policy. The way that America handles executions in particular—I don't think that there's really any question that it's racist, the system that we have is racist.
Emma Atkinson (VO):
The question of whether or not the death penalty is a racist policy is one that is raised most every time an execution enters the news cycle.
And it’s one that people are discussing in the wake of the Murdaugh trial.
USA Today opinion contributor Austin Sarat wrote that, quote, “it is hard to ignore the fact that that the decision provided yet another example of racial and class privilege in the death penalty system.”
University of Denver professor of law Sam Kamin says race is a factor in death penalty cases, but there’s more nuance there.
Sam Kamin:
it's more complicated than people might think. You might think, ‘Oh, well, black defendants get the death penalty and white defendants don't,’ it actually is more complicated, more nuanced than that. And one of the things that seems clear is that the pairing of a victim and a defendant makes a big difference. So blacks who kill whites are far more likely than those in other groups to receive a death penalty.
Emma Atkinson (VO):
Kamin is part of a new research study, publishing soon, that examines data from the Georgia state death row and has found that killers of white women are more likely to receive the death penalty than any other group.
Sam Kamin:
There is definitely a racial aspect to it. It is because most crime is intra racial, that is most people kill someone of the same race. The fact that you are white doesn't necessarily mean that you are less likely to get the death penalty. It really requires you to look at the at the parent of a victim and the defendant.
Emma Atkinson (interview audio):
Okay, I see. So, so let me let me ask you this, if I am black and I kill a white woman, am I more likely to receive the death penalty than a white man who kills a white woman?
Sam Kamin:
You are, in fact, yes. So the there are far fewer of those killings. But the you know, at least in the study that we that we conducted, or the data that we looked at, that certainly seemed to be true.
Emma Atkinson (VO):
Kamin’s work builds on a 1980s study by University of Iowa professor David Baldus that found “the odds that a defendant would be sentenced to death for murder in Georgia were 4.3 times greater if at least one victim was white than if all victims were Black,” as stated in a quote from the Death Penalty Information Center.
So yes, there is a racial aspect to how the death penalty is handed out—it’s just not one that most people might assume.
And Kamin also highlights one thing that USA Today’s Sarat touched on in his opinion piece—that impoverished people are also more likely to be sentenced to death.
Sam Kamin:
in your introduction, you were talking about the Murdoch murders. You know, one thing that people have highlighted is that, you know, the, the racial aspect is, is certainly well documented. The participation of competent counsel really makes a big difference that for people who are sentenced to death, you know, the sort of history books are full of lawyers who are drunk or asleep or incompetent or underpaid. And so, you know, you rarely get someone have means sentenced to death. That is usually in the case of the poor, not cases that are likely to have Netflix series about them. In sort of the cases that people aren't following that closely where the lawyer and is not what you would get in a in a higher profile case. You see those cases over represented among those sentenced to death as well.
Emma Atkinson (VO):
Kamin teaches a class to DU students about the death penalty. He says, every year, he sees a broad variety of opinions about the policy—and has heard many arguments as to why it’s a good way to hand out justice.
But he says many of those arguments are easily refuted.
Sam Kamin:
when I discuss this with my students, what I say is, you know, I'm going to propose that the death penalty serves no valid purpose, and you guys will have to talk me out of that. I think that if the, to justify the death penalty, certainly the reasons for it have to outweigh the reasons against it. So what are those reasons that we would impose the death penalty? And, you know, deterrence is one idea that comes up that we have to do we have to convince others not to commit this crime out of fear that of punishment, retribution is one that comes up a lot that, you know, justice is only done, when a life is taken for life. Incapacitation is an idea that that occurs that we need to make sure this person doesn't do it again. And a surprising number of students mentioned cost that is, you know, when someone has committed one of these heinous crimes, keeping that person alive for the rest of their lives, doesn't seem to make sense is that as a societal matter? So, you know, I run through a lot of those questions with my students. And, you know, I mean, there are some of those are moral, philosophical questions that people have to answer for themselves. To the extent we can answer those questions empirically, I think the case for the death penalty is not very strong. It certainly is a deterrence matter, it is very hard to find proof that the depth that the use of a death penalty reduces the murder rate. There are a number of studies on them the there have been some a number of meta studies that have looked at those and found that the data in favor of deterrence is weak at best and likely non existent. There are even studies that show that there is what's called a brutalization effect that the death penalty makes us people in a society more likely to kill rather than less. You know, from a incapacitation argument, certainly once someone has been put to death, they are no longer a threat to society. But that sort of ignores the fact that someone is on death row, and has essentially nothing to lose that can't be punished any more severely. That, you know, certainly reduces deterrence for any misdeeds, they would they would carry out at that point. And the, again, one of my colleagues, Professor Marceau has has worked with others to show that the cost it is more expensive to seek and impose the death penalty than to impose a life term, the trials are more expensive, the appeals are more expensive. Maintaining a death row is more expensive than if we were to simply convict someone of murder and sends that personal life term that would be far cheaper than then sentencing that person to that.
Emma Atkinson (interview audio):
It seems... the whole process seems to be shrouded in a lot of mystery. Is there an argument for for making it clear what goes on behind closed doors?
Sam Kamin:
Yeah, I mean, I think if you were interested in the deterrent effect of the death penalty, you would want to publicize those executions rather than hiding, right? And we don't do that. And the reason we don't do that is I think people are concerned that if the public actually saw what happens in the death chamber, that they would be repulsed by it. And you know, the number of botched executions that have taken place in the United States, whether they're the electric chair and people catching on fire, whether they are lethal injections, but don't work, whether they are, you know, the there is no foolproof, foolproof method for putting a person to death. That those mistakes those errors, the mechanisms of putting someone to death might repulse people. So yeah, almost nobody in the United States has seen an execution, we hide them. The state is quite secret about the drugs that are used and how it procures those drugs. And there's been lots of litigation about that. So yeah, there is lots of this that is mysterious and trout, and then is done so intentionally
Emma Atkinson (interview audio):
in your opinion, in your professional opinion, what are the chances that we see the death penalty abolished the United States in the foreseeable future?
Sam Kamin:
Yeah, that's a great question. It's sort of, you know, as you say, one of the ultimate questions I always tell my, I used to teach the class, I haven't taught it since the death penalty was abolished in Colorado several years ago, during COVID. You know, I, but when I teach a death penalty class, to you, I tell my students, you know, when you guys are ending your legal careers, and 30, or 40 or 50 years, it will shock new lawyers that you took a class on the death penalty, it would be like taking the law of slavery, that it'll just seem outdated and, and cruel. And, you know, I think we are everyday getting closer to that there are fewer death sentences, there were fewer executions, the United States, public policy is moving away from the death penalty. I see it withering on the vine, I think whether it sort of dies and falls off in a year or two years, or five or 10, I do not doubt that, you know, sort of the, the arc of history is, is moving away from the death penalty. You can't be a member of the European Union if you have the death penalty. So we see around the world, fewer and fewer nations using the death penalty, they look less and less likely United States or like nations, the United States would want to be lumped in with I think that the more people learn about the death penalty and see the realities of it, the less popular it becomes.
Emma Atkinson (interview audio):
my last question here, do you believe that the death penalty is just?
Sam Kamin:
I personally do not I, I write on the death penalty, I do empirical research on it. I'm personally opposed to it. I tell my students in my class Look, that's not the point of this class is for me to convince you that the death penalty is unjust. I personally think the death penalty is unjust for a lot of the reasons that that we've been talking about. But I also recognize that reasonable minds can disagree on that what I try and do with my class and my work is to describe the realities of the death penalty United States to let people see and know what and how the death penalty works. And I think that the more people know about it, the less popular it will become.
Emma Atkinson (VO):
Thanks again to our guests, reporter George Hale and University of Denver professor of law Sam Kamin. For more information on their work and the sources used in this episode, check out our show notes at du.edu/radioed. If you enjoyed this episode, please consider subscribing, liking and reviewing the podcast on Spotify or Apple Podcasts. Tamara Chapman is our managing editor. Debora Rocha is our production assistant. James Swearingen arranged our theme. I’m Emma Atkinson, and this is RadioEd.
