The Appeal Podcast: Documenting the Death Penalty

Despite hundreds of people being put to death in the United States since the Supreme Court reinstated the death penalty in 1976, surprisingly little data exists on who exactly is killed by the government. Two reporters at The Intercept, Jordan Smith and Liliana Segura, have spent the last three years working on filling the gap in knowledge––collecting and assembling data on how widespread, racially biased, and arbitrary the death penalty remains in 2020. This week, they join us to talk about their findings.

Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter page and as always you can rate and subscribe to us on Apple Podcast.

Despite hundreds of people being put to death in the United States since the death penalty was brought back by the Supreme Court in 1976, surprisingly little coherent data exists on who exactly is being killed by the government, what their race is, age, mental status, and other details. Two reporters at The Intercept, Jordan Smith and Liliana Segura, have spent the last three years working on filling this gap in knowledge, collecting and assembling data on how widespread racist and arbitrary the death penalty remains in 2020. They joined us to talk about their findings and what the implication of these findings is for activists, abolitionists and lawmakers.

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Liliana Segura: This is Liliana. Part of what inspired this was knowing and seeing all the ways in which capital punishment is incredibly fraught and unfair and problematic and erroneous for years and years. 

Jordan Smith: This is Jordan. So the ultimate expression of state power is the ability to kill its own citizens and yet many of these states could not be bothered to really track that information and keep good records of it, which was just appalling.

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Adam: Liliana, Jordan, thank you so much for joining us.

Jordan Smith: Yeah, thanks for having us. 

Liliana Segura: Thank you.

Adam: So y’all wrote a four part series for The Intercept focusing on the death penalty and the opacity around the actual statistics and who is actually being killed and not killed entitled “The Condemned.” It has four parts, “Death and Taxes,” “The Abolitionists,” “The Power to Kill” and “Counting the Condemned.” This was an ambitious project written very well. Definitely check it out at The Intercept. I wanna start off by asking you to sort of give an overview of this project and to sort of explain to me what the impetus for the project was. What in your research and journalism sort of compelled you to do it and what your main takeaways were?

Liliana Segura: So this is Liliana. And I guess I would start by just saying, you know, part of the sort of impetus for this is partly rooted in the fact that, you know, Jordan and I together have been covering and writing about and thinking about the death penalty for many, many years. And Jordan’s been based in Texas, which is obviously like the belly of the beast when it comes to this issue. And you know, this is a subject that kind of, as part of our professional life has been on our minds for a long time. So that’s just to say part of what inspired this was knowing and seeing all the ways in which capital punishment is incredibly fraught and unfair and problematic and erroneous for years and years. And it was really in, in 2016 that we started talking about this big anniversary that was coming up, which was the 40th anniversary of this landmark decision called Gregg vs. Georgia. And in Gregg vs. Georgia, the US Supreme Court essentially decided after a four year period where there was a moratorium on the death penalty, or on executions anyway. To back up, in 1972 US Supreme Court had declared that the death penalty as it was practiced in the United States was Unconstitutional. And it sort of led to this really interesting moment historically where although there were new death sentences being sought there were no executions being carried out by virtue of the Supreme Court ruling. Well in 1976 the US Supreme Court decides, based on new laws that had been passed across the country, that despite what they had decided four years before a capital punishment in the United States could be carried out fairly, could be applied fairly. And that sort of launches us into what we now know as the modern death penalty era. And if you’ve ever written about capital punishment, the sort of so-called modern death penalty era is this turn of phrase that we often use to describe this kind of 40 year period between 1976 and everything that came after to contextualize and locate our coverage in the so-called modern era. One thing that was on our minds in 2016 as this anniversary was approaching was, you know, all the ways in which the so-called modern era is really a misnomer, you know, because we’ve seen for years, anyone who’s paid attention to this issue, can see that the very same problems that have existed for decades continue to plague our system of capital punishment and you know, the criminal justice system as a whole. And that was sort of something we wanted to try to unpack and find a way to represent as this anniversary approached. So that’s the kind of broad strokes of what inspired the project.

Jordan Smith: So this is Jordan. So, yeah, that was the basic setup and it really, one of the things that still makes us chuckle now is I guess anytime you start a project with how hard could it be? You’re about to find out just how hard it could be.

Adam: Well yeah. But if you know the answer to that, you’d never do it in the first place. So ignorance is good.

Jordan Smith: Right. So I mean really we thought how hard can this be? So we’re going to collect information on every single person who has been sentenced to death. We kind of narrowed the field a little bit to really focus on the act of death penalty jurisdictions, which includes the US military and the federal government and then these 29 separate states who send people to death row, carry out executions or both, right? People who had abolished it, you know, via court order or legislatively, even though they have a very big role that they’ve played in the so-called modern era, they are not included in the data set because we wanted to really reflect the way it’s still playing out. And it proved incredibly difficult to gather this information. And what was really, I think, one of the things that we found most shocking is just how frankly abysmal the record keeping is. I mean this is like the ultimate expression of state power is the ability to kill its own citizens and yet many of these states could not be bothered to really track that information and keep good records of it, which was just appalling. For example, in Oklahoma, the corrections department had not had a computer upgrade since the beginning of the nineties so they literally could not track this stuff and had it probably on pieces of paper, probably in a football field size warehouse, dunno, can’t find it for you. Just like this sort of laissez faire attitude towards this record keeping I thought was just gross. So it really, this project lasted like three years and literally the entire time as we’re doing it, we’re still collecting information up until not long before we published it, still trying to make sure we have everybody that should be in their demographic data about them. And then also probably the most difficult part is tracking the people who are not on death row any longer for some reason other than being executed, which is the single largest set in the data, right? It’s like huge. Like 40 some percent of everybody who has been sentenced to death since 1976 is not on death row and has not been executed. I think that in and of itself tells you that capital punishment is a failed policy, but tracking those people is very, very difficult. And figuring out what ultimately happened with them, whether they were exonerated or whether they’re doing life or, or whether they got sentenced to time served or their sentences were commuted or they died. You know, it’s just tracking all that. The data set itself has more than 7,000 individual entries. So that’s just a really massive undertaking that I think we sort of didn’t realize at first how incredibly intense it would be.

Adam: Yeah. So you mentioned that it’s a failed policy. I guess I always find terms like failed interesting in the context of criminal legal reform because it sort of presupposes in a nominal criminal justice ends, that may or may not be the case, right? If, if the goal is to sort of be this capricious racist thing that prosecutors use to extract things out of people who they’ve charged with murder or rape or other crimes, in some senses maybe it’s succeeded.

Jordan Smith: If that’s the context and I suppose it’s wildly successful. 

Adam: Right. But so when you say failed, what do you mean exactly? So I guess I’m saying is like if, if one is trying to examine the gap between the nominal purpose for the law and what it actually ended up doing, what would you say it’s failed at doing? It’s failed that it’s obviously failed as a deterrent, it’s failed as a, as a system of justice? In what ways would you say that  the sort of lofty reasons that people claim it has versus what it actually ends up doing?

Liliana Segura: So this is Liliana. Well, I think like yeah, the way we’re framing and using the word failed or failure in this is very specific to this context in which we’re talking about the death penalty on its own, you know, as defined by its supposed goals, right? So you already named, you know, deterrence, right? But what’s most dramatic is what Jordan was describing before, which is, you know, the sheer percentage and number of cases that don’t actually lead to an execution. And the fact that for all intents and purposes, by the definition used by supporters of the death penalty who claim that this is a necessary policy for crime control and because we have to sort of stamp out the worst of the worst, it’s a failed policy just on those measures, you know? So that’s sort of what we mean by that. 

Jordan Smith: Yeah and also it fails overall to deliver any sort of notion of justice. Back to your whole thing like if the point of this is to be as racist as possible, operate with bad motives, mistake things, do poor investigations, railroad people and send them to death row: it is really successful. But, you know, if you’re talking about something that even measures some mildly close to what we consider in our best selves as justice, it completely fails. It completely fails. 

Liliana Segura: And also just, I mean some of this exists in some of the reporting that we did, certainly a lot of the stories we’ve written over the years, but also in some of those stories that are specific to this project. I mean the failure to bring closure for families of victims really cannot be overstated. And that’s a theme that sort of exists throughout our coverage of this issue. It’s something you find time and time again and it’s one of the cruelest and least understood, I think, aspects of this. Every time I feel like we write a story about a given case, you find, you know, just this enormous well of pain and trauma that is only sort of dragged out for many survivors and victims’ family members. So it’s a failure on that front as well.

Jordan Smith: Yeah. That is a really good point to reinforce too, because among the retribution and getting rid of these, you know, crime control, blah, blah, blah, is this over and over again, very pandering I think and really hypocritical that this is what families need. They need this and you know, yeah. It doesn’t provide them that. And also I think that it, that’s a whole other thing unto itself is not all families of victims of crime feel the same and their narratives have been hijacked, overall, their narratives have been hijacked by this one very, you know, vengeful notion of what people need. 

Adam: Yeah. We talk a lot about the ways in which prosecutors posture as kind of victims rights advocates, which is this great kind of Orwellian term because it shifts the power dynamic. Right?

Jordan Smith: Well, yeah, and they’re not supposed to be, that’s not their job. They represent the state.

Adam: Yeah. It’s also not their job, right?

Jordan Smith: Yeah they represent that state, not the victims.

Adam: And also again, it sort of presupposes this uniform belief set on behalf of the quote unquote “victims” that they all support the most severe punishments, which a lot of the work that Danielle Sered has done at Common Justice has shown that’s actually not the case, that statistically speaking for a lot of crimes, people don’t support carceral solutions much less killing. So it sort of gives a kind of inverted victim narrative where the state with all of its power and all of its prisons and all of its laws is the underdog. When of course we know that’s not really the case. I want to talk about some of the interesting statistics y’all teased out in your study that I found very interesting. You note there are sort of two threads here that seem unrelated but in fact are not, which is that the amount of people who were killed by death penalty has gone down, but the racial disparities have gotten worse. You note that between 1977 and 1986 in the state of Texas, 290 people were killed by death penalty. But between 2009 and 2018 that number was 73. However, the amount of nonwhites executed went from 51 to 75 percent. And you note similar trends in California, Oklahoma and other states. What’s going on with that figure? So as the death penalty has gotten less frequent, but of course by no means zero, the racial disparities have actually gotten more profound. Is that due to shifting demographics of the prison population in general or the population at large? Or is there something else going on here?

Liliana Segura: We don’t have the answer to that question. And what’s fascinating about this whole process or one of the things that was really interesting, like we had a hunch and part of what I think inspired this project was this hunch that, you know, despite this modern death penalty era label that we’ve given, you know, this 40 year period, the death penalty hasn’t gotten any more fair. It hasn’t adequately addressed the kind of racial disparities we’ve seen for the entire existence of what we call capital punishment. So it was only when we sort of, late in the game when we started, when we finally collected all the data and started crunching some of these numbers, which I want to be clear, like we’ve only really just started doing this, that this thing that started to jump out, it’s like, wait a minute. It started by sort of looking at a five year period, sort of earliest five year period we had and comparing it to the latest five year period we had with different states like California, some of the bigger death penalty states. And I’ve noticed this trend that even as fewer and fewer new deaths sentences are being handed out, it just seems to be the case that they keep going to black and brown people and that just really struck me because in many cases you’re dealing with such a small set of people. And then we started looking at 10 year periods and, and I want to be clear, you know, this is like only sort of the start of this analysis, but what was really striking and really consistent was that this was something you could find across the board. And so then the question is like, okay, what’s going on here? How do you account for all of this? And then you get really pulled into this incredibly weedy kind of analysis that frankly we weren’t really all that well equipped to do because we don’t have the kind of race of the victim data that we’d collected, you know, which is obviously very important. We don’t have, you know, every jurisdiction is different. But like I think what’s really key here is when you back up, I don’t know that you can really come up with a satisfying explanation that would account for these kinds of disparities. And that’s kind of such an indictment, I think of this system, which is just like any way you slice it at the end of the day it sure it looks like it’s getting more racist. Even the, you know, the fewer and fewer sentences we’re seeing. So that’s something that we hope to probe more and that I hope other people will take on and look at. Because as we said in the series, you know, this was never meant to be a really thorough statistical analysis of all the varying factors that contribute to this. But the numbers are what they are and I think that they’re pretty damning.

Jordan Smith: So this is Jordan. My theory is that it just proves, well another one of my, one of our underlying hypothesis, is this is just all really a racist policy to begin with. We knew that it was before Furman, before the moratorium and there was literally no reason, you know, because of the years we spent reporting on the death penalty, you know, like I said, part of our thing was, it’s probably just as bad post Gregg as it was pre Furman. Well you know what? It is. It is just as bad and it’s just a racist mess. And I think that’s just, you know, if you want to be overarching about it, it just demonstrates what we already know to be true and it seems more harsh and it seems like it’s more glaring as we dwindle our death penalty jurisdictions and as we dwindle down our new, our new death sentences, it just is revealing itself even more starkly. 

Liliana Segura: Yeah, and I guess I would just add, and this is also in the series, it’s very important to understand that the death penalty, that part of what even paved the way to the Furman decision was an explicitly data-driven project on the part of the NAACP’s Legal Defense Fund where they were looking specifically at death sentences coming out of rape cases, which is where you really saw the most stark, the most obvious evidence that the death penalty as it existed then was a clear holdover. It was a part of a legacy of lynching that the harshest punishments were reserved for black men accused of raping white women. And that is just something that you see, especially in these early cases ,and it’s really a through line that helps explain how we ended up with the numbers we’ve been discussing.

Adam: Right. So I want to shift here to um, you highlight in your story that one of the trends, one of the things that the Justice Collaborative, which is an umbrella that The Appeal is under, that they spent a lot of resources on this as well, is targeting progressive prosecutors as kind of your best ROI in terms of reform. Now, a lot of these progressive prosecutors have turned their eye to the death penalty. You write about the case of Aramis Ayala, a state attorney in Florida, a state which has quote “the highest number of death row exonerations in the country.” And you say that she made the mistake of doing what a lot of prosecutors are already doing, which is not pursuing the death penalty. And that her mistake was to explicitly say she wouldn’t, which in a state like Florida, for anyone who is familiar with or intimate with the politics of Florida meant that there would be an invariable right-wing backlash headed up by, at the time, Rick Scott. And this was heavily racialized as well. Can you tell us about her case and what it says about the politics of reforming the death penalty and what the kind of demagoguery that results in people who come out against it?

Jordan Smith:I mean, well first of all, Aramis Ayala did make a mistake of saying it out loud. She probably could have just moved along and like not sought the death penalty on a number of cases and gone pretty much unnoticed. Part of the reason that she didn’t was because there was a cop killing that was very high profile and she was going to be called to task if she didn’t seek death on it. And of course she didn’t. And spoiler alert, in the end, the jury didn’t send this man to death anyway. So it was kind of an interesting outcome. But she was very vocal about why. And it was basically laden in all the kind of research that we’ve done that the NAACP did years ago showing this is racist. It is not a deterrent. It is just what it is. Right? It’s just like this horrible experiment with killing people and that, you know, yeah, the governor just like completely just came out and was like, ‘You can’t do that. That’s not justice.’ And it was sort of ironic and hypocritical and then ended up taking all these cases away from her and reassigning them. It led to a court fight and I think one of the things that I thought was most interesting was that at the time, you know, Florida’s death penalty had been in chaos because of a number of things, including two back-to-back rulings, one from the Supreme Court and one from the Florida Supreme Court, that kind of appended nearly half of their death penalty cases and were going to send them up for potential re-sentencing. So the system was already in chaos by the time she kind of gets elected and there was, I think it is crucial that at the time that she’s elected, there really is no functional death penalty in Florida. Not that they, I mean it’s arguable that there’s ever been one, but you know, practical purposes politically speaking at the time, it was not a functioning system. And so she comes in and basically says the obvious thing four weeks out and she goes to the Florida Supreme Court to argue our case that basically Rick Scott, in taking all these cases away from her and reassigning them to a different state’s attorney had, you know, overstepped his bounds, that that was not something he was allowed to do. And I think one of my favorite things from the oral argument is this sort of hand-wringing on behalf of one of the judges who is saying, ‘Well if she doesn’t seek it here then it’s just going to be crazy because like over here, somebody will be seeking it. Over here they won’t. How will we deal with that?’

Adam: Right.

Jordan Smith: If you look around the country, already, it’s very zip code driven, right? Like you have some rabid district attorney in Louisiana and they are driving death sentences or rabid district attorneys in Southern California that are driving these numbers. Anyway, so it really already, it was just a very naive, I think, argument to make, but you know, that was one of the reasons that they pushed back against her in their ruling that basically approved Scott doing what he did. The interesting thing though is all those cases that were reassigned to date, last time I checked, none of them had ended up in a death sentence. They’d all settled for life without parole or some form of lesser punishment. But I think the big takeaway and one point that she made to me a number of times when we spoke, and it’s very true, is that if you look at the sort of animals of prosecution, you see lots of blood lust and discretion being used in the opposite direction, which is to say prosecutors seeking death nearly every single time that they possibly can, regardless whether, you know, objectively speaking, you would see this as like a really horribly heinous crime. And no one ever, not once, really questioned their discretion in any meaningful way. And yet now when you have this crop of sort of more reform minded prosecutors who are doing things differently, suddenly the law and order sort of community is like, ‘Oh my god, this unfettered discretion, it’s crazy. We’ve got to scale it back.’ And it’s like, you know, it’s very obvious what that is. I don’t know that those people realize what it is, but it’s incredibly hypocritical and it’s just not fair. I mean, they are given the same discretion as somebody like Bob Macy, who was just a notoriously horrible DA in Oklahoma. Aramis Ayala gets just as much discretion as Bob Macy gets, you know, like there’s just no difference. Just because you’re seeking death doesn’t mean you should be given wider latitude than if you say, I’m not gonna do it. Discretion exists for one and for all or exists for no one. Right? That’s the way I feel about it. And that’s kind of what the biggest point to me coming out of that was that you look at the attacks on people like Larry Krasner or anyone, any of these prosecutors across the country. It’s always challenging whether they are appropriately using their discretion, which is sort of code language, I think, in many ways. For a lot of them I think it’s racist because a lot of our newer reform candidates have been people of color and so it’s sort of challenging them on this level that I think is really sort of unseemly at best. Discretion exists and it can’t be taken away just because you prefer a different outcome. And I think that’s one thing that people really need to think about.

Adam: I want to ask about the sort of arguments against the death penalty and how sometimes they can kind of butt up against broader efforts to reform the criminal legal system, which I know is in recent years has been predicated on shifting the ways we think about carceration more broadly and in moral terms, not just in terms of practical terms. And so I know that there was a recent mini controversy that Elizabeth Warren got in when she said that she opposed the death penalty because she thought that life without parole was actually more damaging to the person who was the offender or whatever. Right? This is a common argument. I mean I know that Bill O’Reilly used to make this argument, others have made this argument, even Sanders, I think in 2016 said ‘lock them up, throw away the key’ to sort of almost in a weird way, outflank the death penalty people from the right. And I’m curious to what extent from your work that you see death penalty people maybe even moving away from this idea that ‘Oh, they already have this really gratuitously cruel punishment, which is a life without parole and we don’t need death penalty.’

Liliana Segura: So this is Liliana. So I have to admit like there was something actually to me that was a little bit surreal about the controversy that broke out around Elizabeth Warren’s comments. And I think for the most part, I think it’s actually speaks primarily to, you know, just how far we’ve moved I think when it comes to thinking about this issue and talking about this issue and what we expect from democratic candidates and just sort of fellow progressive’s around around these issues. I have to say I was sort of stunned by the controversy because what Elizabeth Warren was articulating was something that not only is like a very common sentiment among politicians but was largely that sort of prevailing sentiment and central strategy among the sort of mainstream abolitionists for years when it came to what we have to acknowledge as like a very successful state by state strategy convincing legislators to reconsider the death penalty and at the center of that, you know, sort of pushing life without parole as the default alternative. And I have to say that this goes back years and it sort of dates me a little bit, but you know, there were very serious conversations taking place in around, you know, the sort of early 2000s, 2005 around this strategy. Not everyone in this sort of abolitionist communities, such as it is, agreed with this. But it was a controversial position to say that life without parole was an inhouse death sentence and this punishment had no place in the kind of strategy to abolish the death penalty. That could be its own sort of subject for a podcast. And I hope that we’ll continue to talk about it. The reason it was a little surreal to sort of see this controversy breakout now it’s like I think we need to sort of properly contextualize, you know, this moment and remember that four years ago we had a candidate, you know, in Hillary Clinton who was still a defender, a vocal defender of the death penalty.

Adam: Yeah. I definitely don’t want to single out Warren, cause again, I mean even Sanders said something similar just four years ago. So it’s, it does show you that the rules change for the better, but they definitely, uh, you know, she just didn’t get the memo.

Liliana Segura: Yeah. Well, and I also think that, I think that we’ve moved really quickly and, and by we, I want to say it’s like people who are sort of working in this space, having these conversations, we have to sort of also take a step back and see that part of the reason we see historic lows in terms of American support for capital punishment is that when you present the question, if you have the choice between the death penalty and life without parole, people’s support for the death penalty goes down. You see juries handing out fewer death sentences. It’s partly, I’m not saying entirely, but partly because of the availability of life without parole. So, so life without parole has served this very concrete role in the move away from the death penalty. Um, and I, that’s not at all to say that I embraced that. For many years I’ve said and complained that anti-death penalty activists really painted themselves into a political corner by embracing, you know, as a central part of their strategy life without parole as the default alternative. It seemed totally like an unnecessary sort of decision to make and something that has led us to where we are now. So I think on the one hand I was sort of pleasantly surprised to see so many people reacting so negatively to what Elizabeth Warren said about life without parole. But it was surprising because I think we haven’t until now expected that political candidates would be against LWOP. I mean I haven’t even expected, taken for granted ever that the Democrats would be against the death penalty. So we’ve really just moved very quickly to this place and I think it’s a really good moment and it provides opportunities. I just think that we can’t, we can’t pretend like this is where we’ve been all along and then only view the current conversations and controversies through that lens. I think we have to sort of acknowledge how far we’ve moved.

Adam: Yeah, it’s one of the problems with like moving fast on a lot of issues, like even with gay marriage is that like people like three years ago had the same opinion we now say is Nazi-like, you know, it’s sort of, it’s always hard to sort of calibrate that because it’s good that you’re moving. But yeah, I definitely think a little bit of humility was probably in order.

Liliana Segura: Well it’s, it’s also, it’s just not a beyond the pale position for a lot of people. And I think in the context of the primary that things get really, you know, sort of people run with what they run with. But I think, I think it’s a really healthy development that people are so critical of life without parole. I mean, that is so important, right? Because one of the reasons to be so opposed to life without parole is that it adheres to the same logic of permanent punishment as a death penalty. It forecloses on any possibility of change. All those things are true. But it’s also true that when you try fighting the death penalty and life without parole at the same time, you know, you have to kind of try to figure out where people are with these issues and meet them where they are and have those discussions and not sort of say, ‘Oh my god, how could she take that position that is so beyond the pale and she’s terrible and, and, and you’re terrible if you agree with her.’ I think that a lot of people haven’t even had a chance to think about these things in this way.

Adam: Yeah. I think that’s what was kind of vulgar. There was a sort of, on a visceral level, there was a kind of sadistic glee. It was like the premise was that maximizing human suffering was the goal. But I, I agree policy-wise that’s not much different.

Liliana Segura: Yeah. And I will say, and again, this is not a defense, this really grossed me out at the time, but like when you saw states, like for example, I always remember when New Mexico abolished the death penalty and that was a democratic governor, Bill Richardson, took the exact same line. This is years ago, you know, basically saying, ‘Well, as a matter of fact, LWOP is even a worse punishment than the death penalty.’ You know, that was like a very common rhetorical line and of course you can see why it’s useful for politicians, right? It’s like, ‘Ah, ah, abolishing death penalty that doesn’t make me, you know, soft on crime. Like, you know, LWOP is the real tough on crime.’ So it’s all sort of couched in that really cynical gross rhetoric that you get in politics. We have to sort of remember the context and remember where we were not so long ago and sort of have these conversations in a really honest way. But all of that is to say, you know, like Jordan and I have this conversation all the time and as a matter of fact, we were supposed to have a whole piece all about life without parole as part of this series. And for a number of reasons, we had to cut down on the stories that we were including, the written stories, to accompany the dataset. But that’s something we intend to do more of. And I think that controversy that broke out around Warren really speaks to the need for these discussions.

Jordan Smith: I would just add in here too, yes, we’ve had this conversation for years before we even got this database, but the data set also shows you something very important in the context of life without parole, which is we’ve proven to ourselves again, what we both always believed is LWOP is not necessary. LWOP became a thing in part because of this really cheap and sleazy thing that a lot of prosecutors did in many states, which was say, and this is perfect, this happened in Texas all the time, which is, ‘Well, you have to send someone to death because the only other option is life with the possibility of parole. And that means this monster could be out in the streets in 20 years.’ And the fact of the matter is that’s just not true. LWOP is not necessary. You know why? Because people don’t get paroled. Lower level crimes. Yes. But when you’re talking about capital crimes, people do not get paroled. All you have to do is look at our data set and see just how many hundreds and hundreds of people are sitting in prison, have been resentenced to life with the possibility of parole and have been there 30 plus years. So you know, there’s a way in which you can argue that LWOP is just not necessary because life with a possibly parole still gives that discretion. And a lot of people just don’t get parole. Certainly not in places like Mississippi or Florida or Texas, which are really the drivers of the death penalty anyway. So, you know, it’s just another thing we were told we needed that we really didn’t need at all.

Adam: Right. Yeah. Okay. I mean, but then again, what’s Twitter without ungenerous superficial moralizing? So, all right, so — that’s my bread and butter, so I can’t criticize. Okay. So real quick before you go, I want to get a sense of what the current status is. Cause I think if there was sort of a Rip Van Winkle activist who fell asleep in 1973 and woke up and found out that we still had the death penalty, I think they would be very shocked by that.

Jordan Smith: Well that’s the saddest picture I’ve ever seen. Poor guy. Not only is he groggy but he’s pissed. (Laughing)

Adam: Yeah, he’s pissed off about it.  We are a country that is consistently, in fact I would say probably 80 percent of this podcast is talking about things that are settled issues in most of the world. We are very out of whack with the sort of standard, the kind of general OPEC standard. Can we talk about what the current state of play is vis-a-vis abolishing the death penalty on a federal level? Are there cases working the way up to the Supreme Court? What’s the kind of general strategy? Is this a state by state thing and what optimistically, what is the sort of timeline here in terms of when activists think that we can finally get rid of this so we don’t have to do shows like this and you don’t have to do investigations like you did for The Intercept?

Liliana Segura: Well, I guess the most recent good news we can celebrate is, especially in contrast to what we found when we went to Colorado last year, the State of Colorado, which had a really ugly, depressing failed effort to abolish the death penalty in its last legislative session, is on the verge of finally doing it this time. And if you read the story that we wrote about the western states and the push in the States of Colorado, Wyoming, Nebraska, you know, we did a whole section on Colorado and trying to unpack what went wrong there. But in recent weeks, you know, we’ve seen that the Senate, you know, finally voted to abolish. It looks like there’s every reason it’s going to be successful in the house and be signed by the governor. So that’s, that’s a very important win for abolitionists. It’s long overdue. It probably should’ve happened a long time ago. Colorado is not exactly a state that people think about when they think about the death penalty, but it’s also a state that really is emblematic of so many of the dynamics that we were trying to unpack with this project, which is like literally, literally in Colorado of the three people on death row, all of them are black and all of them not only came out of the same county but went to the same high school, which is such a perfect sort of portrait of the ways in which the death penalty is increasingly concentrated in specific jurisdictions and how those jurisdictions, low and behold, seem to keep producing, you know, more convictions against black people and brown people. So, so Colorado is an important win, and I think that that’s, you know, it’s another state abolishing and that trend continues in terms of, you know, I think there was hope separately that the Supreme Court might be persuaded to take up this issue again. You know, a couple of years ago now, there was a case out of Arizona where there was a lot of hope that the Supreme Court would not only declare Arizona’s death sentencing statute Unconstitutional, but the death penalty as a whole based on the very same questions of arbitrariness that we saw during Furman and Gregg. But ultimately after weeks and weeks of putting it off and putting it off, conferencing, the Supreme Court decided not to take up that issue. And now with Kavanaugh and the court being what it is, I think that that strategy is on hold if not abandoned for now.

Jordan Smith: Um, you know, one thing I think that we wanted to emphasize over and over again with this project is that, well, a couple things. One, is the data set is, we’ve made it available on GitHub for literally anybody to download. We encourage people to download the data for them to do additional research. And also for people who have some familiarity with the death penalty in their various jurisdictions to send us information if they have it, that could help perfect the data because it’s so hard to collect this. We know that there are errors and omissions in it. It would be nearly impossible for it to be otherwise. So we’re trying to keep it cleaned up and we’re going to keep re-upping it and sort of repost it, refresh it at least three times a year. But more importantly is that people should be using this. We put it together so people could use it. And we’ve already been sort of encouraged because we’ve gotten some word from some lawyers that they’re gonna be able to use it in litigation in other ways. And that’s precisely what we wanted to do. It’s meant to be part of the living body of research that people can use. And I think I just want to reemphasize that.

Adam: By all means, take a look at it, go online and look at their article, “The Condemned” at theintercept.org and look at that because you want feedback and I ought to even maybe even led with that cause I do think that’s an important part of this, that this is part of the The Intercept’s kind of goal here, which is to create very rich, very in depth research and data-driven journalism. And this is an example of how that I think could be useful but also be part of a sort of two way conversation, not just kind of bestowing it upon people. So I, I definitely would encourage people to check that out. 

Liliana Segura: Yeah. Thank you. 

Adam: Thank you so much for coming on. This was extremely edifying. I really appreciate it. 

Jordan Smith: Thank you so much. 

Adam: Thank you to our guests, Jordan Smith and Liliana Segura. This has been The Appeal podcast. Remember you can always follow us at The Appeal magazine’s main Facebook and Twitter page and as always you can rate and subscribe to us on Apple Podcast. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer is Craig Hunter. I’m your host Adam Johnson. Thank you so much for listening. We’ll see you next week.