This is DAY TO DAY from NPR News. I'm Alex Chadwick.


And I'm Madeleine Brand.

We have a report coming up on a murder near Boston involving high school students, autism, and Scientology.

CHADWICK: First, to the growing debate about the death penalty. Several state legislatures are now rethinking the rules that govern capital punishment. In Florida, a special panel meets this week to re-examine how the death penalty is applied. This after an executioner testified about a lethal injection that caused chemical burns on both arms of the condemned man.

Joining us to discuss the state of the death penalty, Dahlia Lithwick, legal analyst for Slate and for DAY TO DAY. Welcome back, Dahlia. And what about this Florida case?

DAHLIA LITHWICK: Well, Alex, the State Lethal Injection Commission in Florida is hearing testimony, as you said, right now about this really horrifying botched execution. The defendant, or I guess now the deceased, Angel Diaz, was executed on December 13th of last year. Not only did the procedure take 34 minutes, which is 20 minutes longer than usual, it required, apparently, according to testimony, 14 vials of chemicals to be inserted into veins in both arms.

And because the IV lines went into his tissue and not the veins, it was just a disaster. And by all accounts, it was so badly botched that then-Governor Jed Bush called the moratorium in that state on all executions until they could get to the bottom of what was going wrong with the lethal injection protocol.

Yesterday, testimony included testimony from one person who said even vets don't use the cocktail that's being used in Florida.

CHADWICK: As you write in your piece that's up on Slate, there are - it's not just Florida, I mean, there are many states that have cut back on capital punishment and many others that are considering it.

LITHWICK: That's right, Alex. The numbers are definitely trending away from capital punishment, or at least away from lethal injection. Right now, 22 of the 40 states that allow the death penalty either have moratoria or they're considering imposing moratoria. Two other states formally banned lethal injection, and one has found the death penalty unconstitutional.

So definitely the trend largely is to do away, as I said, with lethal injection, to try to figure out something else. There's other concerns built into that, not just lethal injection but the rule of physicians in lethal injection because it conflicts with their ethical rules. There's increasing evidence of just pervasive racism in the capital punishment system, questions about the effectiveness of trial attorneys. And so states are really looking hard at their own systems and saying, we may believe in capital punishment, but the way it's being administered is just a disaster.

CHADWICK: But then, at the same time, aren't there other states that actually want to expand the crimes eligible for the death penalty?

LITHWICK: That's right. Currently, it looks like there are about six states in the country who are seeking right now to broaden the kinds of crimes that they would allow to be eligible for the death penalty. Texas and Tennessee, for example, are considering imposing the death penalty for some child molesters who commit no murder. The State of Virginia is considering a bill that would allow capital punishment for accomplices to murder, not necessarily the principal, and for people who murder judges or witnesses at trials.

So those states are sort of standing behind the notion that, look, there's a real deterrent effect to capital punishment, and if you do away with capital punishment, you're deterring a lot less crimes. And so there is this sort of blowback in at least a handful of states that are saying we don't care if the rest of the country is re-examining their protocols; we say even more death penalty for more kinds of crimes.

CHADWICK: But overall, here's a statistic from your piece that I recall. In the '90s, nationally, we were sentencing about 300 people a year to death consistently. And last year was the lowest number in quite a while, 114. So there's a trend down. But when you go to the Supreme Court, Dahlia, you see something else.

LITHWICK: Well, that was what I wanted to probe a little bit in my piece, that the notion that just as the country seems to be getting very cold feet, again, they're not necessarily getting cold feet about capital punishment. Two-thirds of Americans still support the idea of the death penalty for murderers. But as we're starting to really re-examine our hearts and consciences about whether lethal injection is the best way to do it, the Supreme Court seems to be almost hardening in its sense that maybe these procedures are okay and maybe we don't need to fix the system too much.

And what I was sort of picking up on was that there was a trend until the new - the court changed and new justices came on, that you were seeing the court increasingly anxious about imposing the death penalty in the latter years of the Rehnquist Court.

And now I think with Chief Justice Roberts and Justice Samuel Alito we're seeing, at least in oral argument and in a few initial cases, and I caution it's early to tell, but we're sort of seeing a sense on their part that they're going to dig in a little bit, a sense that maybe capital punishment is OK and that that sort of softening we sensed on the Rehnquist court may be reversing itself a little bit.

CHADWICK: Dahlia Lithwick, legal analyst for DAY TO DAY and the online magazine Slate. Dahlia, thank you again.

LITHWICK: My pleasure, Alex.

CHADWICK: More coming on DAY TO DAY.

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