Janine Jackson: It’s so astonishing — at a time we feel ourselves nearly numb to astonishment — that it generated a Snopes factcheck: Could it be that the Trump administration executed more people in five months than the federal government executed during the previous five decades?
It is true; and indeed, things are at such a pass that it’s almost eerie that Trump isn’t bragging night and noon about the spree of state killings — three in four days over the summer, and now ramping up to a level unprecedented from a lame-duck White House since the days of Grover Cleveland, who had been, law professor Austin Sarat reminded recently in Slate, an executioner himself as a New York sheriff.
Not content to schedule state killings practically up to the day Biden takes office, Trump’s Justice Department has also just changed the rules to allow executions by electrocution and firing squad — this at a time when many states have abolished the death penalty, and more and more people say they oppose it.
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Our next guest has reported on the death penalty, sentencing and US prisons for much longer than Trump has been in office. Investigative journalist Liliana Segura now reports for the Intercept. She joins us now by phone from Nashville. Welcome to CounterSpin, Liliana Segura.
Liliana Segura: Hi, thanks for having me.
As with a lot of things, it feels like we’re moving in two different directions. More people, if still not a majority, say the death penalty is morally unacceptable. The data has kind of sunk in that its application, anyway, is unfair and racist, and not a deterrent to crime. But then when individual cases come up, it becomes a different category of story, if you will, and statistics matter less than “What if it were your sister?” You’ve been doing, as I say, this reporting since before Donald Trump and Bill Barr. I just wonder how you’ve approached the terrain of this issue, and what you’re making of the present moment?
It’s been a very surreal time to be covering these executions. As you highlighted, I’ve written about the death penalty a lot, for many, many years. And actually, one of the bizarre aspects of my work in recent years has been that since I moved to Nashville, about five years ago, the state of Tennessee has actually carried out a large number of executions. And the last several of those were carried out using the electric chair. Although I haven’t witnessed those executions, a number of my local friends and colleagues in the media have.
Outside of our local bubble, and I think more broadly, I don’t think Americans quite realize just how much we’ve tolerated a system that continues to use things like the electric chair, which, when it was announced that the Trump administration was looking to bring back the electric chair and firing squads, it really generated a fair amount of revulsion among a lot of people who seemed sort of unaware, or maybe haven’t thought about these issues in a long time.
So I think we run the risk a little bit of putting these federal executions in the context of this horrifying, violent Trump era, which has broken so many norms that we’re accustomed to. And yet when you look at different states, when you look at what’s been happening in Tennessee, we’ve been pretty violent in the past several years, and tolerating quite a bit as Americans when it comes to these more mundane executions from day to day and year to year.
So part of my project, when William Barr announced that they were looking to restart federal executions after more than 15 years, my task was to remind myself of the history that underpins this federal system. We hadn’t seen a federal execution since 2003. So the first piece that I wrote was actually going back and reexamining how we got here. And so much of that story really is about the Democrats, frankly, and is about the era of the 1994 crime bill, and the vast expansion of federal prosecutions, federal death sentences, as a result of that crime bill.
So it’s been an interesting time to see through the election, now entering a Biden administration — Joe Biden famously having authored much of the crime bill — to see what’s going to happen next. Biden now claims to oppose the death penalty, and I’m looking forward to seeing how that plays out in terms of meaningful action.
It seems like the death penalty is an issue in this country where the country moves, as I would say, forward and then back. We start to act like every other so-called developed country, and then someone like Lester Maddox pops up and says, “They’re getting away with murder!,” you know, and it swings back again. And as part of that, media and politicians characterize points of view without actual human beings attached, you know: “Victims deserve better.” “Criminals can’t be helped.” It can get very sloppy and very strawman, which is why I think reporting, as you do, simple witnessing, is important. But there are particular hurdles to that kind of reporting, aren’t there?
Absolutely. When Trump was elected, a lot of us kind of knew; we were like, “OK, this is a guy is very pro–death penalty, he’s going to choose a very pro–death penalty attorney general.” We knew that federal executions were likely to return under Trump. What I never could have anticipated, certainly what none of us could have, would have been that these executions would be carried out with such a vengeance, but also in the midst of an unprecedented pandemic.
And a huge part of the challenge of reporting on this moment has been navigating the danger, frankly, and risk of traveling during a pandemic, of doing this reporting during a pandemic. I happen to be based in Nashville, which gives me an advantage; I just have to drive the four hours up to Terre Haute to be on the ground for these executions. But a huge number of my media colleagues who have not been similarly positioned haven’t come, and have had to choose to protect themselves and not try to make that trip to Terre Haute during these last few months.
I’ll also add that, while the DoJ and BoP have have taken steps to provide protective equipment, masks, sanitizer, all of that, to the press who do come, especially to witnessing reporters, they’ve also laid down some pretty arbitrary rules about what people are allowed to do and not do in order to protect themselves. So one of the things I find most disturbing, and that I’ve grappled with every time I apply to be a witness for these executions, is the fact that they don’t want reporters bringing their own masks. For me, that makes a difference, especially now, between applying to be a witness and accepting that role if I’m chosen, and not. And I think journalists who have had to witness repeatedly — there’s one local reporter in Terre Haute who has witnessed all eight executions, and will almost certainly witness the rest — they take that job on as part of their professional obligation, but assuming quite a bit of risk and danger that really shouldn’t be necessary to do their jobs.
Of course, every difficulty, every hurdle for reporters means a loss for the public in terms of information. We hear that prisons used to be in the center of town, that people were hanged in the square. And there’s all kinds of things you can say about that, but the implication is that transparency has been important. And now we really hide this part of what’s done in our names. And that’s partly why the witnessing is so important. But it’s also why it seems so critical to be able to ground the conversation in data, in information.
And on that note, I wanted you to tell us a bit about the project that you’ve worked on with Jordan Smith and others at the Intercept. What is the scope of that? And how do you hope that that project would be used?
I should preface this just by saying that Jordan and I, neither of us are “data people,” and so that project was quite an undertaking on a number of different levels.
This project really started back in 2016. Essentially, we set out to try to take stock of the death penalty, writ large, as it exists in its current state. The impetus for the project at the time was the anniversary of the landmark decision in Gregg v. Georgia, which is when the US Supreme Court, in 1976, determined that after a four-year moratorium that came about because of flawed death penalty laws throughout the country, that essentially enough reforms had ensured that the death penalty could now be carried out in an equitable and fair way; there were enough protections to ensure that “the system worked.”
And so since 1976 onwards, that’s what we call the so-called modern death penalty era. Yet we know, Jordan knows — through years of reporting, through seeing exonerations of innocent people who were sent to death row, the data pointing to systemic racism throughout the system as a whole — we knew that if we were to start to look at, not only who was still on death row in this country, or who has been executed, for that matter, in recent years, but the whole picture of who has been sentenced since 1976, and what has happened with those sentences, where those people have ended up, that would provide a much fuller picture of the failures and shortcomings of this system.
And so, in a moment of what feels like temporary madness, we decided we were going to try to collect the data from all remaining death penalty states, to basically just ask for information about all the people sentenced to death from 1976 to the present, and their status.
We knew that the vast majority of those people would not have been executed, because what we see is that people on death row spend decades, often die of natural causes, oftentimes they are resentenced, people many times take their own life on death row. And so we wanted to get a bigger overview of what this system looked like. So it took literally years to collect and analyze this data.
One of the big takeaways that I suppose shouldn’t be surprising, but which is nonetheless disturbing when you consider the power of the state in taking a human life, is the fact that the recordkeeping was just pretty bad, really, really shoddy, really incomplete, just a lot of confusing, basic questions that were not answered in our first attempts to collect this data.
I will say that there is absolutely no question that the data shows overrepresentation of people of color, especially Black people, on federal death row, and we’re starting to see how that’s playing out now: Of the five people who are set to be executed before Joe Biden’s inauguration, four of them are Black men, and the other is the only woman on federal death row, Lisa Montgomery. So it’s pretty striking, and there’s still a lot to learn from that dataset.
I appreciate the layperson approach, if you will, because it should be legible to non-statisticians; it should be information that can be understood.
And then the other thing that leaps out at me is, you have to combine the fact that the recordkeeping is so bad with the repeated assurances that the death penalty is being applied, as it were, surgically; that it’s the “worst of the worst,” as the horrible overused phrase is. The fact that the data is opaque, that the data is erratic and incomplete, is a statement in itself.
Yeah, that was one of our big takeaways as well. It’s really an indictment of this lack of seriousness with which we treat these fundamental powers of government; there’s a lack of interest or curiosity, or just an unwillingness to engage with that, that reality of so many Americans. And I learn that again and again in my reporting, just the fact that these executions, as disturbing as they are, have flown largely under the radar; a lot of people are unaware that they’re even happening.
And I want to also say that in my recent interviews, those people who are unaware include some of the original prosecutors in the cases that are now coming up for execution. It’s become a bit disturbing to me, how little some of those prosecutors, who are largely retired, how little they’ve followed these cases to their conclusion, the fact that it was just part of their career, and they’ve moved on, while the victims that they promised closure to have been hanging on, and oftentimes waiting for decades, to see this all play out. It’s really bothered me in recent days.
Finally, the death penalty has a finality, an irreversibility, that for many people set it apart. But we should be wary, shouldn’t we, of imagining that an equally certain but slower death in solitary confinement without possibility of parole is somehow a feel-good alternative. We can’t just have a piece of this conversation about the continuum of cruelty that’s reflected in our criminal system. And I know your concerns are expansive in that way; it’s important to contextualize the death penalty. It’s not like it’s the one bad thing the system does.
Yeah, that’s exactly right, and thank you for bringing that up. That’s something that fortunately, I think, we’ve started to see a little bit of change in the broader landscape around the way people see what I call “permanent sentencing.” I was struck, during the primaries, when everything was so heated, that Elizabeth Warren, I believe, got into a little bit of trouble at one point where she kind of said — and I don’t remember the precise context — but essentially, gave support for the idea that life without parole is an appropriate sentence, I believe, as an alternative to the death penalty.
And at least on Twitter and social media, a lot of people jumped all over this comment, to say that this was almost as bad, it’s a form of torture, that we shouldn’t support life without parole. And I gotta say, as somebody who’s been covering life without parole and the death penalty for years and years, that is different. It was not people’s sort of knee-jerk response to the notion that “LWOP,” as we call it, is an appropriate alternative. The anti–death penalty movement for many years has pushed life without parole — in my mind, erroneously — as the default, acceptable alternative to state-sanctioned murder. And those issues have generated a fair amount of debate and tension. But I think that the broader culture, at least in the context of the primaries, has kind of come around on questioning that as well, and I think solitary confinement and that form of torture is a big part of that, as you lay out.
Can I say one more thing about transparency?
One other thing that’s really been on my mind when it comes to the lack of transparency, and the managing of the narrative on the part of the federal government, is I’ve really been struck, going back and forth to Terre Haute, by the ways in which the Department of Justice controls the narrative to such a degree that it’s got a very rigid system for enabling reporters’ access to certain people involved in these executions.
And you highlighted, rightfully, the way in which people, when confronted with the horror of these crimes, say, “What if it was your loved one?” And so reporters have, on occasion, had access to the victim’s family members after the execution. What happens is, the witnessing press comes back, people are allowed into this media room, and those family members who have witnessed come and are given a forum to address reporters. Sometimes reporters ask questions, and it’s very moving, it’s very sad. And the family, oftentimes, thanks the Trump administration, says that justice has been served. And it’s part of this process.
And yet, there is no equivalent, there is no forum for the loved ones of the people who are put to death; in fact, they are explicitly not allowed in the media center. And to the extent that we’ve heard from loved ones of people put to death in Terre Haute, it’s only been because activists have staked out, literally sued, actually, to gain access to a field across from the penitentiary, next to a Dollar General, where where they have come to hold vigils and protests, but also these kind of mini-press conferences featuring spiritual advisors and, in the case of Christopher Vialva, the mother of Christopher Vialva, who witnessed his execution.
And I’ve thought a lot about that, because it was the first time Christopher Vialva’s mother was able to address reporters, but also express her sorrow and condolences for the family of the victims in that case, and it was a very moving moment, and yet not one that was officially sanctioned, not one that would ever be enabled by the federal government.
So family members of the condemned are often erased and have been, for the most part, throughout this process, and I try to really keep that at the center of my work. It’s the reason I approach my stories with an eye towards including, when I can, the voices of the families on the other side, who are also losing a loved one in this process.
Thank you so much for having me, and for covering this issue.