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The only remaining execution scheduled for this year in the U.S. is set for Georgia tomorrow. Whether or not it goes ahead, the number of executions that take place this year will be the smallest in a quarter century. In part two of her look at the death penalty, NPR's legal affairs correspondent Nina Totenberg examines why the numbers have plummeted.
NINA TOTENBERG, BYLINE: When you look at the death penalty process in the United States today, you notice two things - internal contradictions and unintended consequences. Take lethal injection, the execution method now used by every capital punishment state and the federal government. It was pioneered in Oklahoma in 1977 as a method more humane than the electric chair, hanging, firing squad or the gas chamber. The lethal injection three-drug cocktail that Oklahoma devised and other states adopted turned out to be often unreliable, however, with botched executions taking place in several states, including Oklahoma in 2014.
By early 2015, Oklahoma was in the U.S. Supreme Court defending a newer version of its cocktail from a challenge brought by death penalty opponents. The state devised the new version because it was becoming impossible to get some of the drugs that had been used previously. At oral argument, Justice Samuel Alito put the blame for that squarely on the shoulders of death penalty opponents who he suggested were putting political pressure on drug companies.
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SAMUEL ALITO: Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?
TOTENBERG: Oklahoma's lawyer assured the court that the only substitution drug in the state's protocol worked just as well as the original drug. And the high court subsequently gave the state the green light to go ahead with the new cocktail in its planned execution of convicted killer Richard Glossip. Two hours before Glossip was to be put to death, though, the governor discovered that there had been a substitution for a second drug. And this one was not part of the approved protocol. Moreover, state officials also learned that the same mistake had been made in the previous execution as well.
Glossip, already stripped down to his boxer shorts, was returned to his cell, and the governor ordered a halt to all executions well into 2016. The Oklahoma experience is emblematic of the difficulties states are having. First, it's increasingly difficult to get execution drugs. Pharmaceutical companies are refusing to sell their product for use in executions because, as federal appeals court Judge Alex Kozinski explains, it is simply inconsistent with their mission.
ALEX KOZINSKI: Drug companies are in the business of healing, and they are not comfortable, you know, morally or just economically, being in the business of killing.
TOTENBERG: Kozinski, who most recently wrote the decision allowing lethal injections to go forward in California, views the attempt to make execution look more merciful as a fool's errand.
KOZINSKI: We are killing a human being, and this is as violent a thing as a society can do.
TOTENBERG: The difficulty in obtaining drugs or getting trained medical personnel to participate in executions has led states to adopt more and more secrecy about the drugs they're using, where they get them and what procedures they use. Arkansas governor Asa Hutchinson says it's essential to keep the source of the drugs confidential.
ASA HUTCHINSON: The reason for that is that the source of the drugs would dry up because of pressure that mounts from anti-death penalty advocates.
TOTENBERG: But that very secrecy leads to more challenges from death penalty opponents and more delays while, at the same time, acceptable drugs exceed their expiration dates and mistakes are made, as in Oklahoma and other states.
The other internal contradiction in capital punishment is the trial and appeals process itself. In an effort to make death penalty cases more error-free, to reserve it for only the so-called worst of the worst and to make the system more uniform, the Supreme Court added more protections for the defendant and more appellate reviews. But when that made the process longer and more complicated, there was a reaction in Congress. And in 1996, President Clinton signed the Antiterrorism and Effective Death Penalty Act aimed specifically at cutting death penalty delays. Columbia Law professor James Liebman.
JAMES LIEBMAN: The whole point of that was to speed up death sentences. And if you measure it from the date when that statute passed, the time from sentence to execution has gone from something like 11 or 12 years to something more like 18 years. So it's had exactly the opposite effect.
TOTENBERG: Death penalty supporters, like Arkansas's Governor Hutchinson, see these delays as anathema.
HUTCHINSON: Here in Arkansas, we have someone on death row for more than two decades. And that kind of a review process is cruel to the victims' families, but it's also very difficult on the defendant in the case. And so that's not a good reflection on our system of justice in America that you have those kind of delays.
GEORGE KENDALL: Well, thank God it takes this long because, you know, some of these exonerations have been more than two decades before their evidence of innocence can be marshaled and presented and shown.
TOTENBERG: That's death penalty opponent George Kendall. He points to a particularly uncomfortable example - the case of Henry Lee McCollum sentenced to death for the 1983 rape and murder of an 11-year-old girl in North Carolina. In 1993, Justice Antonin Scalia cited McCollum as a poster child for why the death penalty is justified. Compared to what McCollum had done to the girl, Scalia wrote, how enviable a quiet death by lethal injection.
Last year, McCollum was exonerated and released from prison after 30 years. DNA at the crime scene that had never been tested matched to a man in the same neighborhood who had been convicted of a similar crime.
There's little doubt about what's driving the death penalty numbers down in America - both death sentences and executions. It's the revelation in recent years that many of the people sentenced to die were innocent. An astonishing 156 death row inmates have been exonerated and released in the last 40-plus years, many of them after decades in prison. And it's not just a matter of DNA, blood and bodily fluids evidence. Science used in past prosecutions has also come under fire. This year, the FBI conducted a study of 3,000 cases in which FBI hair analysis was presented at trial prior to 2000. The Bureau found that in 90 percent of the cases it examined, the analyst's conclusions were erroneous. Science keeps changing, as former Virginia attorney general Mark Earley observes.
MARK EARLEY: Every generation, we can become a victim of our own hubris, thinking we've arrived and we can't make mistakes and the science today is the best science. And 50 years down the road, we're going to look back and see some gaping holes.
TOTENBERG: Earley, a conservative Republican, was a firm defender of the death penalty from 1998 to 2001 when, as state attorney general, he presided over the execution of 36 convicted killer.
EARLEY: I still felt fairly confident that we could always get it right, and I just don't feel that way anymore. You know, it's one thing to sort of sit in the Senate chamber, as I did at the state Senate, and vote for capital punishment bills. It's another thing to be on what we used to call the death watch until midnight. It's gruesome business. It's business that even people who are involved with it, at the end of the day, you know - they don't like it.
TOTENBERG: In Arkansas, Asa Hutchinson has set eight execution dates since he became governor early in 2015. He says he's personally reviewed each case to make sure the verdict is justified. But because of ongoing court challenges, he's not yet had any of those midnight death watches.
HUTCHINSON: It's not something you run for. It's not something you desire to do when you're governor. But the criminal justice system is important for our state. It's important for the nation. And it's the job of the governor to carry out the sentence of the jury.
TOTENBERG: Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
