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ALEX COHEN, host:

From the studios of NPR West, this is DAY TO DAY. I'm Alex Cohen.

ALEX CHADWICK, host:

I'm Alex Chadwick.

Coming up, 10 years ago, Oregon became the first state to legalize physician-assisted suicide and it's still the only one.

COHEN: But first, capital punishment and the courts.

More than 3,000 American inmates are currently on death row. But many executions are now on hold while the Supreme Court looks at the constitutionality of lethal injections.

Here to tell us more about that case is Slate.com's legal analyst and DAY TO DAY regular Dahlia Lithwick.

Hi, Dahlia.

Ms. DAHLIA LITHWICK (Slate): Hi, Alex.

COHEN: Dahlia, can you tell us a bit more about this pivotal case? It's based in Kentucky. Can you remind us how lethal injections made it the court's docket?

Ms. LITHWICK: Right. Well, this has been burbling up for a couple of years. And it was sort of only a matter time until the court agreed to hear it. Essentially, this is a challenge to the lethal injection protocol under the sort of constitutional question, is it cruel and unusual punishment under the Eight Amendment that would need to require it to be struck down? Currently, 38 of the 39 states that use the death penalty, with the exception of Nebraska, have essentially some version of a three-drug protocol. And a lot of recent studies - medical studies - have shown, and then recent executions have sort of borne out the fact that the three-drug protocol may in fact cause horrific pain to the prisoner before he dies; and that in fact the first drug in the protocol may mask that pain so that we don't actually see how much he's suffering. So the court is really going to now check this question of, is this so cruel and unusual that it violates the Constitution?

COHEN: Now, some people said this has effectively put a moratorium on the death penalty in individual states. Is it fair to call this a moratorium? What have individual states been doing?

Ms. LITHWICK: I think probably more fair to say a de facto moratorium. Certainly some states - Georgia, Texas, Nevada - have staid some executions. Alabama has given a reprieve. But the state of Texas, actually, went ahead and executed somebody only hours after the Supreme Court agreed to hear this case in September. So it's not at all clear what's going on. I'd go so far as to say even the justices on the Supreme Court are not exactly sure what the effect is of their decision to hear this case. They have certainly staid some executions subsequently. But for instance, Justice Scalia has been very clear that this is not a decision that suggests that there is a moratorium, and that it doesn't mean that every other execution will be staid. So we have all the states and the state courts sort of in a hodgepodge of postures trying to decide how best to sort of honor the Supreme Court's decision to hear this case, but not really clear what it is that is in fact going on.

COHEN: It seems to me that this case is about lethal injections. But isn't it hard for people and their views on capital punishment itself not to get kind of tied up in all of that?

Ms. LITHWICK: Right. Well, one of the things that's become very interesting as a strategic matter, Alex, is that the fight over the lethal injection protocol is, you know, sort a mask for a larger fight about the death penalty. And in fact, one of the ironies here is that what could come out of this case, presumably, is a kinder, gentler way of killing people that wouldn't at all satisfy death penalty opponents. So it's a very, very strange sort of twist in a larger drama about whether or not we should be executing people at all to sort of be fighting over a nicer, sweeter way to execute them in the first place.

COHEN: And does a kinder, gentler way exist, other than this cocktail that has been used?

Ms. LITHWICK: You know, it's very interesting. One of the things that happened is that this cocktail has been used for decades without really reexamining whether medical science had kept up. And one of the things that, for instance, Justice Souter has said at oral argument in similar cases in the Supreme Court is we no longer kill dogs this way. It's illegal to kill animals the way we're killing people in this country. Clearly, there's a disconnect here.

And I will add that the creator himself of the lethal injection protocol that we use today - his name is Dr. Jay Chapman - he himself has said we can do much, much better if we're really interested in doing away with cruel and unusual executions. You know, we could just use an anesthetic. Other pro-death penalty groups have said, you know, we could just use carbon monoxide. We could use an overdose of barbiturates. So in fact, we're all sort of in agreement that even if we are for the death penalty in general, there are better ways to go. But somehow, this protocol sort of got locked in and hasn't changed over decades. It's an interesting - as I said, it's an interesting strategic problem in addition to a moral problem.

COHEN: Dahlia Lithwick of Slate.com, thanks so much.

Ms. LITHWICK: My pleasure.

COHEN: The Supreme Court is scheduled to hear this lethal injection case early next year. Whatever happens in that case, the American Bar Association says capital punishment needs to come to an end throughout the country.

The ABA gathered research from eight states and here's what they found -hundreds of cases where misidentifications from eyewitnesses or false confessions led to innocent people receiving death sentences.

I spoke earlier with Stephen Hanlon. He's chairman of the ABA's Death Penalty Moratorium Project. I asked him why the execution system is plagued with wrongful convictions.

Mr. STEPHEN HANLON (Death Penalty Moratorium Implementation Project): The systems are not adequately resourced and set up to deal with these highly complex, highly emotionally charged cases. In particular, defense counsel across the nation - but particularly in these eight states that we've studied now - are seriously underfunded, under resourced, under qualified. And so you rely on defense counsel to ferret out error. And as long as that situation continues, we're going to continue to have these kinds of rates of error.

COHEN: Your report also shows that race plays a big factor in terms of who is sentenced to death. What were your findings there?

Mr. HANLON: Racial and geographic disparity is pervasive in the state of Ohio, with those who kill whites being almost four times more likely to receive a death sentence than those who kill blacks. And you are more than six times more likely to receive a death sentence in Cincinnati than in Columbus. I mean, that's just an example. This is - this finding of racial disparities has been pervasive throughout the States.

COHEN: Mr. Hanlon, the ABA says that it takes no position on death penalty itself. But it seems as if this is definitely taking a bit of a stance. Is it appropriate for your organization to be calling on a moratorium?

Mr. HANLON: As my great friend and colleague and former president of the American Bar Association has said, a system which takes life must first give justice. We, as a result of this work, the American Bar Association, has no confidence in the fairness and the accuracy of these death penalty systems. And until we do, executions should stop.

COHEN: Stephen Hanlon is chairman of the ABA's Death Penalty Moratorium Project.

Thank you for joining us.

Mr. HANLON: Thank you.

COHEN: As for the American public, most people support capital punishment. According to a Gallup poll out this month, 69 percent of Americans favor the death penalty for those convicted of murder.

William Rusty Hubbarth agrees. He's the vice president of Justice for All, a crime victim support organization based in Houston, Texas. Hubbarth says that death penalty is an important part of the American judicial system, especially for the families of murder victims.

Mr. WILLIAM HUBBARTH (Vice President, Justice for All): I don't believe in the word closure. I think that every time you've got a traumatic loss, it's more like an amputation. It doesn't heal, but you adapt and learn to live with it.

COHEN: William Rusty Hubbarth is the vice president of the Texas-based organization called Justice for All. He's responding to a report from the American Bar Association calling for a moratorium on the death penalty.

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