‘Secrets of the Killing State’ exposes realities of lethal injection

Episode Notes

Transcript

Lee Rawles:

Welcome to the Modern Law Library. I’m your host, the A BA Journal’s Lee Rawles. And today I’m here with Corinna Barrett Lain, author of the book, secrets of the Killing State, the Untold Story of Lethal Injection. Corinna, thank you so much for joining us.

Corinna Barrett Lain:

Well, thanks for having me, Lee. It’s a pleasure to be here.

Lee Rawles:

So listeners may be tipped off by the title of the book. This might be a heavy conversation, but a unnecessary one, I think. How did you become involved in studying capital punishment?

Corinna Barrett Lain:

Well, I started as a legal historian. I’m actually a constitutional historian, and I ended up writing the constitutional history of a case called Furman versus Georgia, which was decided in 1972. And in that case, the Supreme Court struck down the death penalty itself. Most people don’t know that, that for a period of time in the United States we actually didn’t have a death penalty. The Supreme Court then took another case, Greg v Georgia in 76 and brought it back. And so I was fascinated by that. I thought, what made it decide to strike down the death penalty? Why did we bring it back four years later? And so I wrote about that and then I wrote another legal history piece about court and culture and cultural influences. That piece was called Deciding Death. And then having written two pieces about the death penalty, you start writing about the death penalty and studying the death penalty, and it’s really hard to look away. And so that marked the beginning of my sustained interest in writing about the death penalty on the merits.

Lee Rawles:

And in Secrets of the Killing State, you say, this is a book about how we kill, not whether we should be doing so in the first place. You and I can talk about that as well. But it was important to you to lay out for people what the realities of lethal injection are. So I would love to hear from you when you talk to people or even your initial impressions, what are some of the myths that we and the public have about lethal injection?

Corinna Barrett Lain:

Well, the idea that the public has is, I’m sad to say exactly the idea that I had. So I think the public thinks of lethal injection as sort of this version of putting down a beloved pet. And I certainly thought that at the beginning and I thought that medical professionals were doing this. I think most people think that this is done by doctors. I thought there was science behind lethal injection. Surely some guy didn’t just make it up off the top of his head. But alas, that is exactly what happened. So in virtually every way, lethal injection is nothing like what people think. And Lee, I have to say, I really appreciate what you said at the beginning of this is not a book where I make an argument and then try to convince you that I’m right. This is a book about relentlessly documenting how lethal injection actually works, answering people’s question, why can’t states get this right?

We know how to put down pets. We know how physician-assisted suicide works. Why is it so problematic? Why is it always in the news? And so my project was to just relentlessly document this phenomenon because I think when states execute, they execute in our name, in your name and mine. And so people ought to know what the state is doing in their name. And I trust I have my own views of course, and I talk about those at the end. But I do want readers to see the facts for themselves and come to their own conclusions before they hear from me.

Lee Rawles:

And one of the challenges for people understanding what’s happening is there are many decision makers who are trying very hard not to make many of the pieces of this public. So when you are doing the research into how each of the states that does perform executions through Lethal injection is doing it, what were some of the challenges you found?

Corinna Barrett Lain:

The reason that the book is called Secrets of the Killing State is because this whole thing is covered by secrecy. And I mean, that was one of the most astounding things to me is as I’m learning about it, I’m thinking I’m supposedly this death penalty expert. I’ve been studying the death penalty for going on 20 years. I kind of thought I knew pretty much what there was to know how do I not know any of this stuff? And the answer is secrecy. So as I talk about in the book, states use secrecy in a variety of ways, being the most obvious, of course, is secrecy statutes which are formal legally just codified secrecy. You’re not going to be able to get this information. And it’s often depending upon the state statute, but it’s often worse than that. It’s often not just like we don’t have to give you this information. Most of these statutes also have provisions saying, oh, and by the way, a judge can’t order this. So if you have litigation and there’s some plausible claim, ordinarily we would see discovery, a court ordered discovery once you get past a certain threshold and make certain claims with a certain amount of specificity. And here we have these statutes that say, yeah, not even a court ruling on these issues can see what is behind our wall of secrecy.

Lee Rawles:

And I think as a member of the public, just historically in the Anglo-American system, there are some things that we just have said, okay, well that can be secret. When you watch a movie taking place in the past when there was an executioner with an axe, he’s wearing a hood. You don’t necessarily know who is the executioner. There’s some sort of privacy relating to that. But you document in the book privacy relating to a whole host of things, including where did the drugs come from? And the answer of where the drugs come from is personally kind of alarming to share with our listeners where were some of the more surprising places that states were sourcing these lethal injection drugs?

Corinna Barrett Lain:

Yeah, sure. Well, I’m like, where do I start? So I think understanding the drug shortage is a really big, an important part of this conversation. And the original three drug protocol was use this drug called sodium thiopental. Well, states don’t really use that even in the clinical practice that was quickly becoming obsolete, it was becoming replaced by propofol, which most listeners right now are probably thinking, oh wait, isn’t that the drug that killed Michael Jackson? Yes, it is. And so the suppliers dwindled and all of a sudden the sole domestic supplier drops out of the market. So the first place that states went, which I think is surprising is went to a drug quote distributor operating from the back of a London driving school. This is

Lee Rawles:

The one I was thinking of. Yes. I was like, what?

Corinna Barrett Lain:

And back in the end notes, I actually have a link to a picture where I say, A picture’s worth a thousand words. Take a look at this. And it’s got the driving school and then it has the distributor, which was just a desk and two filing cabinets. That is what it was. But it was coming out of a rundown London area. And when that was discovered, the government of Great Britain just actually put an export ban on sodium pentol to the United States and said, the only business we were doing on this was apparently for lethal injection. And by the way, we are adamantly opposed to the death penalty, so we are for sure not going to supply you. And so it’s like, well, where do you go next? So Texas and Arizona and Nebraska went to a place called Harris Pharma in India. Well, what was Harris Pharma?

I mean, it has the word pharma, surely it’s this pharmaceutical company. And I just have to say shout out to investigative journalists because some of the most interesting fines, I mean some of it came from litigation files and a lot of other places, but a lot of the really, really interesting stuff came from investigative journalists. So some investigative journalists went to India to find out, all right, what’s this thing about Harris Pharma manufacturing? And it’s like, well, actually, Harris Pharma is just a guy named Chris Harris. And he started Harris Pharma after he left this other pharmaceutical company that he parted ways with is I think the way they put it after he was caught using samples that they had given him and selling them to Nebraska. So the pharmaceutical company demands its drugs back, give me back my drugs. Nebraska says, no, and they end up expiring before really anything happens with that litigation.

But several years later, here’s Harris Pharma again. And so you certainly can’t say that states didn’t know who this guy was. He had already been caught selling other people’s drugs without their permission as his own for purposes that they have contractual agreements saying, we don’t want our drugs used for this purpose. But anyway, so these investigative journalists went to check him out and they found that the address that was listed for the FDA, which of course it didn’t pass FDA controls, but the address was just an office, just this little office with a plastic piece of paper tape that says Harris Pharma and just this little office, no manufacturing equipment, no nothing. Of course, Chris Harris doesn’t have any sort of specialized expertise at all. He’s not a scientist, he’s not a pharmacologist, he’s not any of these positions. And then they went and tracked the other address that he used for the DEA and it was a flat that he was living at and he had taken off six months earlier without paying his rent. So it’s just like these are the people, these are the sort of supplier and that’s just the international side. We could talk about the compounding pharmacies, we could talk about all that, but it is kind of crazy to think about what states are doing again in its citizen’s name.

Lee Rawles:

Well, we’re going to hear more about that when we return after hearing a word from our advertisers. I’ll still be speaking with Corinna Barrett Lain about Secrets of the Killing State. Welcome back to this episode of the Modern Law Library. I’m your host, Lee Rawles here with Corinna Barrett Lain, author of Secrets of the Killing State, the Untold Story of Lethal Injection and Carina. We gave people an idea about what’s going on more recently and states attempting to get access to a drug that’s now very difficult to find and needing to be sourced internationally. But there’s a long story before that. How did we even arrive at this? And something that I did not truly understand before reading this book was my listeners may be thinking, okay, but you’re right. My experience with Lethal Injection is the kind of euthanasia that I do for my beloved pet when it’s in pain and the time for its life is over and it is a humane death. What’s the problem here? I did not realize. Yeah, we do have those drugs that we use for animals and as you said, for professional euthanasia, but that’s not what’s being used. So could you talk a little bit about that?

Corinna Barrett Lain:

Sure. Lethal injection is nothing like putting down a beloved pet. So for the first 30 years of lethal injection, the drugs weren’t even the same. And that is still true in some states. And then even where states are using the same drug that we use in animal euthanasia, which is a single shot of pentobarbital, even where states are using that today, that drug is compounded. It’s a compounded sterile injectable, not a manufactured drug like in the euthanasia setting. Then there are differences in expertise in scientific backing and in the basic physiology involved. So lethal injection is a totally different ball game, but it looks like animal euthanasia and that is doing a lot of work for executing states.

Lee Rawles:

And you use a phrase in the book about lethal injection, and I think it has to speak to how attitudes towards the death penalty have changed. The United States, we used to have executions as a public spectacle and people would gather and watch whether it was a lynching or an official act of the stage where multiple people were being hung at a time or any of these public executions. And we did change as a society and sort of move away, but now we have you called it a stagecraft of a peaceful death. So there’s this stagecraft element. Lethal injection executions are witnessed by people as you’re studying the death penalty and attitudes. Why do you think it’s so important to the American public that we have this stagecraft of a peaceful death, even if it’s not in actuality happening that way

Corinna Barrett Lain:

By way of stagecraft? The one thing that I always think of aside from gurney and the white blanket and all of that is the fact that executioners actually swab the arm with alcohol before injecting the drugs that are going to kill this person. I always think like, right, so he’s going to get an infection. Why do you do that? There is absolutely no reason to do that other than stagecraft, pure stagecraft and states get a bump from the public associating lethal injection with a medical procedure, right? Medical procedures are sterile and they’re careful and they’re regulated and they’re always humane because the medical profession is known for its humanity and love for humankind. And so there are all of these things that get associated with a medicalized death. And none of that’s true. It’s not a medical procedure, it’s not heavily regulated, it’s not careful, it’s not any of those things.

As to your question of why, what do we think is going on here? I really like the way you contextualized lethal injection against this larger backdrop of a move from executions in the public square to more private executions. And in that way, I think of lethal injection as the culmination of a long line of state efforts to minimize opposition to the death penalty by minimizing how much we think about it at all. And that is the work that lethal injection is doing for most Americans. Support for the death penalty is support in the abstract lethal injection keeps the death penalty abstract. It allows people to think of the death penalty as just an idea, right? It’s an idea, it’s something that you disagree with or agree with, but it’s more conceptual. So it allows it to stay abstract conceptual, which allows the political uses to flourish while hiding the brutality that executions entail.

Lethal injection is different than every other execution method that’s come before it in the sense that it privatizes its secret sizes, democratizes the violence that is inherent in taking life. I once read, it’s not in the book, but I once read, the heart stops reluctantly, and as I continue to research it really, I like, okay, now I get it. In order to end life before the body is ready to give it up on its own, it takes violence, it takes some force. Maybe it’s a car accident, maybe it, it’s a murder, but it takes force. It takes physical force, it takes violence to stop the heart, to stop the body from living before it’s ready to go on its own. And the chief benefit of lethal injection is it hides that violence, it internalizes it. We are looking at autopsies, we can see the violence there.

Lee Rawles:

And can you get into that a little bit more? Because you certainly in the book, you share individual stories of executions that appear to be pretty botched in that it is clear that this person, this was a suffering. And if you want to talk about constitutional rights and whether that is a torture that would be disallowed, we can also talk about that. But through autopsies, it is clear that this is not just someone peacefully going to sleep. Can you talk about that?

Corinna Barrett Lain:

Sure. There have been several studies showing this, but the really big one came out in 2020. It was a comprehensive study of autopsies across every state. They could get autopsies from, so across the United States across all existing protocols. And it was over 200 of these autopsies. And what they found was that in 84% of those autopsies where the prisoner was executed by lethal injection, and 84% of the time, the autopsy showed a curious finding acute pulmonary edema. Pulmonary edema is when fluid seeps into the lungs. And that is not so rare, but acute pulmonary edema is when that happens in seconds and minutes rather than hours or days or weeks. And this is very distressing because you have the person has fluids seeping into their lungs and they are literally drowning in their own fluids. And so researchers found this. And then you’ve got pathologists and anesthesiologists and other experts were able to explain why this is happening.

And essentially what they said was, this is endemic to lethal injection. This is something that, this is a phenomenon that will be happening when you are injecting a massive overdose of drugs into the body at one time. The problem is, is that these drugs have been injected into people before, but not when doctors are doing it. Even if they’re doing it off list or something, they’re not trying to kill people. And so no one really knew what would happen when you used drugs in these amounts and in these combinations. But what they found is when the drug is injected into the vein, it goes to the heart and then the very next place it goes is the lungs. And these drugs chemically burn the little capillaries in the lungs that makes the lungs leaky and they take on fluid. And even after the body has processed, has buffered that massive amount of drugs, the damage is done, those capillaries are still leaky and the body will continue to take on fluid. And so these prisoners are essentially dying by acute pulmonary edema. They are drowning in their own fluids. As one court stated, they are suffering the deaths that are completely associated with water boarding.

Lee Rawles:

Now, one of the reasons for the three drug protocol was supposed to be when someone came up with it, and the man who did come up with this cocktail doesn’t seem to Dr. Jay Chapman in Oklahoma in 1976, as you said, the death penalty was restarted in the United States and this wasn’t, or it doesn’t appear to be a serious scientific exploration in which he looked at all possibilities, but he just came up with it and then it ended up being adopted broadly. But one of the things that they wanted to achieve was that in addition to the drugs that would cause the death, one was supposed to be essentially a sedative, so the person would be unconscious. The person would not feel or know that this was going on. And you mentioned in the book that there have been a lot of changes to various drug protocols that the states have used, but a more recent one is this use of a kind of paralytic. I hope that I’m getting the science right. This all was pretty overwhelming to read, but it meant that someone might outwardly appear relaxed, but still have consciousness. What did you discover about that? And does this seem to be going on right now as states are conducting lethal injections?

Corinna Barrett Lain:

Yes, Lee, you’re doing great. I think you have a great understanding. I

Lee Rawles:

Got it.

Corinna Barrett Lain:

So not all states are using a three-drug protocol, but many of them are. And the second drug in the three-drug protocol, and by the way, the three-drug protocol was the only protocol that states used for the first 35 years of lethal injection. So this is a longstanding protocol. The second drug is a paralytic, and it’s not just a paralytic, it is also a muscle relaxant. And so the way it works is that it relaxes the muscles in the face. And so you’ve got this nice drifting off to a peaceful sleep look, and then it freezes them that way. And so what onlooker see is this peaceful drifting off to forever sleep. But unless the first drug has actually anesthetized them, they will be dying a torturous death. Because what that paralytic does is it works from the outside in. And so the last thing that it paralyzes is the diaphragm. And the diaphragm is what pushes air into the lungs. And so as the diaphragm is being paralyzed, we know that they’re taking shallower and shallower breaths, gasping for breath. There are some instances where we see bulging jugular veins as the prisoner is trying to take very deep breaths. We also see witnesses talking about there were gasps. And so yeah, I mean experts have said this is like being buried alive. You’re slowly going to lose your ability to take on oxygen and breathe.

Lee Rawles:

And you did note that when prisoners are offered a choice between methods of execution and these sources are recorded, I think it’s Tennessee are brought up that the majority of prisoners choose the electric chair. So it does not seem like this is necessarily completely unknown to prisoners on death row.

Corinna Barrett Lain:

Yeah, I think when members of the public hear that or hear about the prisoner in South Carolina who chose the firing squad, lethal injection has been so ingrained in us as this super humane, painless death that people are just shocked. How could you possibly? But those prisoners were asked, and we know that death by the electric chair is a gruesome death. We don’t need to go into details here, but it is the only execution method that two states have themselves said, this violates the cruel and unusual punishments clause of their state constitutions. So it’s a terrible death. And yet, as you know, five of seven prisoners that Tennessee has executed since 2018 chose the electric chair over lethal injection. Why? And when asked, what they said was, we know both deaths will be torturous, and our best bet is to make it quick. The death by electric chair generally takes under five minutes, often two to three minutes. Death by lethal injection is much longer. The average length of execution for the single shot, one drug protocol is 18 minutes, and that’s if lethal injection goes right. Alabama now has the record for the longest execution in Supreme Court or in our history and Supreme Court history just under three hours B lethal injection.

Lee Rawles:

Well, we’re going to take another break to hear from our advertisers when we return. I’ll still be speaking with Corinna Barrett Lain about Secrets of the Killing State, welcome back to the Modern Law Library. I’m your host, Lee Rawles here with Corinna Barrett Lain. So Corinna, we’ve had a very heavy conversation. There’s no other way to have this conversation, I think. But I am interested in hearing from you. You’ve identified all of these very disturbing and troubling things. What is being done either politically or in the realm of the courts to address this? Because usually when I hear about capital cases, it’s about a wrongful conviction. It’s happening in the legal sphere, and it’s about whether or not this person will remain on death row. And I don’t hear as much about the process of execution. What is happening right now that you see, like I said, either legislatively or in the courts?

Corinna Barrett Lain:

Well, there’s a lot of lethal injection litigation happening right now. And in fact, lethal injection litigation over the last 10 to 15 years has been responsible for stopping, holding up more executions than any other type of death penalty litigation. In fact, I would say, yeah, over the last decade that lethal injection has done more to hold up executions than all other claims put together. In part, that’s because when states are executing by lethal injection, it’s a claim that applies to everyone. The other claims are more individualized. Do you have a claim of actual innocence? Do you have a claim of prosecutors suppressing evidence? Lethal injection is a claim that almost any prisoner can make. And as I document in the book, there are plenty of claims to be made.

Lee Rawles:

There are, I think we’ve probably reached, as we said in the beginning, the book itself is about the methods. It’s about what’s going on, not philosophically about whether capital punishment should happen. Full disclosure to my listeners, when I was in grad schools, a little baby journalist that was at Northwestern University, and it was during a time when the state of Illinois was looking at its own death penalty. And I personally met people who had been on death row and then were

Corinna Barrett Lain:

Exonerated

Lee Rawles:

Of their crimes. And in 2011, the death penalty officially ended in the state of Illinois. And if we’re just talking on a personal level, you and me, it is not that I feel that you can’t commit an act that is so heinous. You give up your moral right to continue among us breathing in and out. It’s that I don’t think the state can construct a system that provides justice in this way. The phrase that they used in Illinois while this was going on was too flawed to fix. So that’s where I am coming from. And you’re a death penalty expert. I don’t know if your views have shifted as you’ve done more research, but certainly towards the end, you do share with people more about your emotional state as you research these very heavy executions and stories. Could you tell our listeners a little bit about the emotional toll that it takes and how your position maybe has altered or not altered when it comes to the death penalty?

Corinna Barrett Lain:

Sure. Firstly, I have to say thank you for sharing with me your views. And what’s really interesting is that this project is very much aligned with your experience in Illinois. I say at the end of Secrets of the Killing State that the story of lethal injection is a story about all the ways that the states cannot be trusted to take life and all the ways that they try to cover that up. And I think that that’s a very important point because oftentimes in the political discourse, people ask the question, does this person deserve to die? And I look at that and say, well, that’s actually only half of the equation. The other half is, does the state deserve to take this life? And it’s hard to answer anything, but no, based on this book, studying executions is dark. I have to confess to that. And I was initially very reluctant to do a project on lethal injection at all.

And I actually remember being at a conference with another death penalty scholar, and he said, you really need to write this piece on lethal injection. And I sat out there with my adult beverage and said, I don’t want to be the lethal injection girl. And I just didn’t want to write it. I didn’t. Writing about it in theory is one thing, and you can talk about all those. You can document all of the problems, but really getting into executions, executions are where the rubber hits the road for the death penalty. It’s where this is what the death penalty actually is. And so that’s a very dark place to spend one’s time, particularly for seven years. But it wasn’t eyeopening experience in many ways, not just because of what I document in the book, but personally, and I talk about this in the epilogue, but studying lethal injection meant studying executions and studying executions forced me to look at who these people are at the end, not who they were in their worst moment, not who they were at trial, but who they are at the end.

Lee Rawles:

And you have a passage from the epilogue that I’d love for listeners to hear. Would you mind reading that for us?

Corinna Barrett Lain:

Sure. In the epilogue, I talk about a man named Brian Dorsey, who was on Missouri’s death row, and he was on death row for a homicide, and there was no question of his guilt. So this is what I wrote. Brian Dorsey was housed in the honor dorm of the prison. He served as the prison barber for over a decade cutting the hair of not only his fellow prisoners, but also the warden and the prison staff. Imagine what that looked like. The warden trusting a condemned murderer with a pair of scissors at his neck. Mr. Dorsey is an excellent barber and a kind and respectful man. A corrections officer insisted, I did not hesitate to say that executing Brian Dorsey would be a pointless cruelty. Yet, once the death warrant is issued, the machinery of death is nearly impossible to halt. The governor declined to intervene, and the prison guards who had come to know and respect Brian Dorsey were then forced to kill him.

The op-ed had warned that taking Dorsey’s life would be especially traumatizing for the many current and former prison staff members, myself included, who have come to respect and care for this exemplary inmate Shirley. Brian Dorsey was not the only casualty that day. As I was putting the finishing touches on this book to send it into production, I felt a deep sorrow and frankly, shame, knowing that this extraordinary exemplar of redemption was about to be killed by the prison staff who had come to know and respect him. Over 70 prison guards could not save Brian Dorsey, though they tried mightily and were joined by a host of others, including family members of the victims, and five of the jurors who had sentenced him to death. Nothing can stop the gears of the machinery of death from grinding. The only way to prevent such senseless acts of cruelty is to retire the machine altogether.

Lee Rawles:

Wow. Well, Corinna, thank you so much for coming on the show to talk about Secrets of the Killing State. If people wanted to find out more about your book or attend any of the events that you have in conjunction with the launch, where can they find out more about that?

Corinna Barrett Lain:

I have an author’s website now, in addition to my faculty webpage. So it’s Corinna Lain.com and it has a list of events. I have scheduled book talks in DC and Baltimore, Philadelphia, Chicago, and this fall I will actually be taking a professional leave and driving around the country and giving book talks, so I may be coming to a city near you.

Lee Rawles:

Well, thank you to Corinna and thank you listeners for joining us for this episode of the Modern Law Library. If you enjoyed this episode, please rate, review, and subscribe in your favorite podcast listening service. And if there’s a book you’d like me to consider for a future episode, you can always reach me at books at ABA Journal com.