12 July 22
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Stop calling them conservative. And take steps to genuinely conserve America
Can we get real? There is nothing conservative about these so-called “conservatives.” They don’t want to preserve or protect our governing institutions — the core idea of conservatism extending from Edmund Burke to William F. Buckley and Barry Goldwater. They are radicals, intent on wrecking these institutions to impose their ideology on everyone else.
The Supreme Court’s Republican appointees have all but obliterated stare decisis — the conservative principle that the Court must follow its precedents and not change or reverse them unless clearly necessary, and with near unanimity. Recent decisions reversing Roe v. Wade, elevating religious expression over the Constitution’s bar on established religion, questioning Congress’s ability to delegate rule making to the executive branch, and barring states from regulating handguns, all call into question the legitimacy of the Supreme Court as an institution.
Meanwhile, Senate Republicans, led by Mitch McConnell, are abusing the filibuster and undermining the legitimacy of the Senate.
Throughout much of the 20th century, filibusters remained rare. But after Barack Obama moved into the Oval Office in 2009, McConnell and his Republican senate minority blocked virtually every significant piece of legislation. Between 2010 and 2020, there were as many cloture motions as during the entire 60-year period from 1947 to 2006. Now McConnell and his Republicans are stopping almost everything in its tracks. Just 41 Senate Republicans, representing only 21 percent of the country, are blocking laws supported by the vast majority of Americans.
At the same time, Trump and his Republican enablers in Congress and in the states have upended the centerpiece of American democracy, the peaceful transition of power, and undermined the legitimacy of our elections.
They continue to assert without any basis in fact that the 2020 election was stolen. Trump encouraged an insurrection at the U.S. Capitol and threatened the life of the Vice President. Republican state legislatures are enacting legislation to suppress votes and take over election machinery.
Make no mistake: Republican appointees to the Supreme Court, most Republicans in Congress, and Trump Republican lawmakers across America are not conservative. They are radicals. They have embarked on a radical agenda of repudiating our governing institutions and taking over American democracy.
It is time to stop using the term “conservative” to describe them and their agenda.
And it is time it to fight back: Enlarge the size of the Supreme Court and limit the terms of justices. Abolish the filibuster and then pass laws most Americans want — protecting voting rights and reproductive rights, and controlling guns. Criminally prosecute Trump and his insurgents.
These are conservative measures. They are necessary to conserve and protect our governing institutions from the radicals now bent on destroying them.
Anti-death penalty activists rally outside the U.S. Supreme Court in an attempt to prevent Oklahoma's planned execution of Richard Glossip. (photo: Larry French/Getty Images)
Grant had good reason to be afraid. In his years on death row, he had seen neighbors taken to die whose executions had gone horribly wrong. Since 2014, Oklahoma’s three-drug lethal injection formula had relied upon midazolam, a sedative that experts warned was inadequate to provide anesthesia. In a lawsuit, attorneys for people on Oklahoma’s death row argued that using midazolam put their clients at risk of “severe pain, needless suffering, and a lingering death.” After a series of disastrous executions made national news, officials announced that they would revise the state’s methods. But when Oklahoma released a new protocol in early 2020, the lethal injection formula remained the same.
The litigation over the state’s death penalty culminated in a federal trial earlier this year to determine whether Oklahoma’s lethal injection protocol violated the Constitution’s ban on cruel and unusual punishment. By then, a series of Supreme Court rulings had created daunting new hurdles for people facing execution, including a requirement that Justice Sonia Sotomayor labeled “surreal.” Lawyers for the condemned could no longer simply challenge a state’s execution protocol. They also had to propose a “feasible and readily implemented” alternative by which their clients would prefer to die.
The Oklahoma plaintiffs outlined four alternative methods of execution, including the firing squad. But Grant and five others declined to choose one. U.S. District Judge Stephen Friot swiftly dismissed Grant and the other men from the lawsuit. Although the state had indicated that it would not seek execution dates until the litigation was resolved, Friot suggested in a footnote that if the attorney general were to request dates for these men, they might provide the court with a useful “track record” to assess midazolam. Prosecutors took the hint: In September 2021, Oklahoma set execution dates for all of them.
The next month, the state carried out its first execution in six years. Witnesses described how John Grant (no relation to Donald) convulsed and vomited shortly after the execution began, then appeared to struggle for breath. One witness who had previously attended six executions testified that she’d never heard anyone gasp for air that way. “It appeared like he was choking on the vomit,” she said.
Prison officials insisted that such accounts were exaggerated. An internal report showed that Grant had consumed potato chips and soda just before his execution. This brought no comfort to Donald Grant, who was scheduled to die in January 2022. He worried that his execution might even be botched on purpose. Like many on death row, he had a history of mental illness, which could make him paranoid. “Sometimes he’s like, you know, ‘How did you get my number?’” Hosch said of their phone conversations. “And I have to remind him, ‘Donald, you asked for my number. You called me.’”
Grant was scheduled to die at 10 a.m. on January 27. It was an overcast, bitterly cold day in McAlester, Oklahoma. In a gray jacket and pink winter hat, Hosch waited for updates alongside a small group of activists and press. Grant’s family had traveled to Oklahoma to witness the execution. His oldest brother, Joe, had been incarcerated for years in New York, which no longer had the death penalty. “This has been weighing on him very heavily, that had Donald committed the same crime in New York, he would not be on death row,” Hosch said.
Around 10:20 a.m., videos of the Department of Corrections director appeared on Twitter. “The sentence of Donald Grant has been carried out,” he said. Afterward, Grant’s spiritual adviser, the Rev. Don Heath, came to join the remaining protesters outside the prison. In a low voice, he described Grant’s last moments. Grant had remained fearful until the end, Heath said. But “his passing was reasonably peaceful, as far as I can tell.”
There was no way to know what Grant experienced on the gurney. Whether his execution could offer any evidence to be used at the upcoming lethal injection trial remained to be seen. But one thing was clear: Oklahoma’s protocol would almost certainly be declared constitutional. After that, Heath said, “We’ll have … men being executed every three weeks for the next two years.”
Standards of Decency
For as long as the death penalty has existed in the United States, the Supreme Court has never invalidated a method of execution. Although it has reined in the punishment over time, the court has historically given legitimacy to even the cruelest ordeals. In 1947, the justices ruled in the case of a young Black man named Willie Francis, who had survived an execution attempt in Louisiana’s electric chair. A majority of the court found no violation of the Eighth Amendment, calling it “an innocent misadventure.”
Although today’s court claims to be guided by “evolving standards of decency” in its Eighth Amendment jurisprudence, this concept has not extended to the methods states use to kill. When the court decided Baze v. Rees, upholding Kentucky’s lethal injection protocol in 2008, Chief Justice John Roberts invoked the Francis case, writing that “an isolated mishap alone does not violate the Eighth Amendment, because such an event, while regrettable, does not suggest cruelty.”
Today the insistence that botched executions are “isolated mishaps” has become harder to defend. A year after Baze, Ohio tried and failed to kill Romell Broom, prodding him with needles for two hours in an unsuccessful attempt to place an IV. When Broom sought to stop the state from trying again, the Ohio Supreme Court rejected his appeal. Two more men have since survived lethal injection attempts under similar circumstances. Many more have been killed with IVs inserted into their groins. In states across the country, numerous condemned people have appeared to suffer on the gurney — gasping, writhing, and heaving, only for officials to declare that everything went according to plan.
But nowhere in recent memory have executions been more disastrous than in Oklahoma. John Grant’s death was only the latest in a history of botched lethal injections that made the state’s death penalty infamous — and set the stage for the trial in federal court. With additional executions scheduled before the trial would officially decide whether Oklahoma’s protocol was constitutional, it would have been logical to hold off for a ruling. But the state pushed forward anyway, killing Bigler Stouffer in December, Donald Grant in January, and Gilbert Postelle in February.
Against this twisted backdrop, the proceeding in Oklahoma City seemed preposterously rigged from the start. Nevertheless, over six days beginning in February at the William J. Holloway Jr. United States Courthouse, attorneys dutifully presented evidence that midazolam could not provide the necessary anesthesia to keep their clients from being tortured to death. They showed autopsy reports revealing evidence that executed men had suffered from acute pulmonary edema — the sudden collection of fluid in the lungs, which feels like drowning. And in accordance with the law, they proposed better ways for the state to kill their clients.
In the end, it wouldn’t matter. On June 6, Friot ruled just as everybody knew he would. The “Eighth Amendment, as construed and applied by the Supreme Court in its lethal injection cases, does not stand in the way of execution of these Oklahoma inmates,” he wrote. A few days later, the state attorney general requested execution dates for 25 more people on death row.
Oklahoma’s lethal injection trial will eventually be a footnote in the long road to insulating executions from legal challenge. As the state gears up its execution machinery, the responsibility lies not only with officials who have ignored Oklahoma’s gruesome record, but also with a Supreme Court that has aided and abetted state-sanctioned murder at every turn. Today the evidence is on the side of those who call executions torture, even if the law is not.
Body on Fire
The federal courthouse in downtown Oklahoma City sits one block from where Timothy McVeigh set off a bomb that killed 168 people in 1995. The terrorist attack is commemorated at the nearby memorial and museum, where visitors can view footage, testimonials, and artifacts from the site. One portion of the exhibit is devoted to the passage of the Antiterrorism and Effective Death Penalty Act, which aimed to speed up executions by curtailing federal appeals.
Down the hall from Friot’s courtroom, an early architectural drawing of the Alfred P. Murrah building hangs on the wall, noting the year it was dedicated: 1977. This was the year Oklahoma passed the first law enshrining lethal injection as its new execution method — the first state in the country to do so. Developed by a local pathologist whom lawmakers had tasked with inventing something less barbaric than the electric chair, the method was soon adopted nationwide. In 2001, McVeigh became the first federal prisoner executed by lethal injection.
The method relied on a three-part formula: first a barbiturate to provide anesthesia; next a paralytic to prevent movement; and finally a fatal dose of potassium chloride to stop the heart. The first drug, sodium thiopental, was critical. As Roberts himself later conceded in Baze, “It is uncontested that, failing a proper dose … there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride.”
Whether sodium thiopental was being properly administered, however, could be hard to discern. The paralytic made it largely impossible to recognize signs of consciousness, particularly for those who attend executions — not medical experts, but journalists, lawyers, and family members on both sides. Although it mostly escaped notice at the time, one anesthesiologist recalled being unnerved by reports from media witnesses who described McVeigh shedding a tear during his execution. This was “a classic sign of an anesthetized patient being awake,” he said.
Evidence that states might be torturing prisoners to death eventually forced the Supreme Court to take up the question in Baze. But no sooner had the court upheld the country’s prevailing three-drug protocol than sodium thiopental began to dry up, in part due to activist pressure on international suppliers. Before long, death penalty states were seeking new drugs and new sources, increasingly relying on unregulated compounding pharmacies, with sometimes disastrous results.
Among them was Oklahoma. In 2014, the state turned to a three-drug method that mimicked the lethal injection protocol upheld in Baze. It simply replaced sodium thiopental with midazolam, leaving the other two drugs as before. But midazolam is a benzodiazepine, not a barbiturate. The former is most commonly used to treat anxiety or as a sedative during minor operations. Experts warned that midazolam was not capable of protecting a subject from experiencing the tortuous effects of the second and third drugs.
When the U.S. Supreme Court again took up lethal injection in 2015, Oklahoma’s protocol was at the heart of the matter. After the horrifying execution of Clayton Lockett in 2014, lawyers for Charles Warner, who was next in line to die, sought a preliminary injunction on behalf of their client and other men on death row, protesting Oklahoma’s “ever-changing array of untried drugs of unknown provenance.” Friot rejected the motion and the Supreme Court refused to intervene. Warner was executed in January 2015. His last words were “my body is on fire.” Shortly afterward, the court took up the lethal injection question, with Richard Glossip replacing Warner as the named plaintiff.
During oral arguments in Glossip v. Gross, Justices Samuel Alito and Antonin Scalia grudgingly acknowledged that midazolam was far from an ideal substitute for sodium thiopental but blamed activists for making the latter unavailable. Over the objections of Sotomayor, who accused the majority of ignoring evidence that midazolam would subject condemned people to the “chemical equivalent of being burned at the stake,” the court ruled 5-4 that the drug was good enough for them. “Because capital punishment is constitutional, there must be a constitutional means of carrying it out,” Alito wrote.
The ruling sent the litigation back to Oklahoma, where officials set out to execute Glossip despite mounting evidence that he was innocent. His execution was blocked at the eleventh hour, not by judicial order but by the state’s own incompetence: Moments before he was to be killed, officials realized that the prison was about to use the wrong drug. When it was revealed that the same erroneous drug had been used to execute Warner, officials put executions to a halt.
In the meantime, other states pushed forward with midazolam over the warnings of medical experts. Executions using midazolam in Arkansas and Alabama appeared to be badly botched, with witnesses describing gasping, lurching, and struggling. After a Tennessee man appeared to suffer on the gurney in 2018, several of his neighbors chose to die in the electric chair instead.
Yet none of those states have abandoned midazolam. And in those that have, it has not been due to any court ruling. After Arizona’s harrowing execution of Joseph Wood, lawyers for the condemned eventually settled a lawsuit with the Department of Corrections after it promised that it would “never again use midazolam, or any other benzodiazepine, as part of a drug protocol in a lethal injection execution.”
But perhaps most instructive is Ohio, where an execution has not taken place since 2018. After an evidentiary hearing convinced a magistrate judge that using midazolam would cause “severe pain and needless suffering,” the judge decried that the law prevented him from stopping an execution, since the condemned man’s lawyers had failed to prove that there was a better alternative. “This is not a result with which the court is comfortable,” he wrote. If not for the decision by Ohio’s governor to pause executions shortly thereafter, the execution would have almost certainly moved forward.
There was little reason to expect Friot to break this pattern. “I’m not a close follower of midazolam litigation in other states,” he told a plaintiff’s lawyer at the trial. “Has there been a final adjudication in any case determining that lethal injection using midazolam violates the Eighth Amendment?” The answer was no.
Battle of the Experts
Friot entered the courtroom at 9 a.m. sharp on February 28. Appointed to the federal bench by President George W. Bush, he’d held senior status since 2014. With gray hair, a stern demeanor, and a biting impatience for anything that might be wasting his time, Friot made clear that he was ready to bring the yearslong litigation to a close. “I’m really not sure that any useful purpose would be served by having opening statements,” he told lawyers on both sides.
Representing 28 condemned plaintiffs was a group of veteran attorneys ranging from local federal defenders to corporate litigators from New York. On the opposite side of the courtroom, a group of young lawyers represented the Oklahoma Attorney General’s Office, among them 34-year-old Solicitor General Mithun Mansinghani.
A handful of TV and print reporters had been assigned to the trial, while elsewhere in the city, local press was covering a mounting crisis within the state’s Pardon and Parole Board, whose chair had resigned after being smeared by prosecutors who accused him of bias for voting in favor of clemency in death penalty cases. By comparison, the trial was largely devoid of human drama. Both sides agreed not to repeat the chilling testimony of lay witnesses to the execution of John Grant, which had been delivered at a previous proceeding. Instead, the trial was a so-called battle of the experts, with hours of technical testimony discussing thousands of pages of medical studies.
Much of the testimony was familiar to those who have followed past litigation. “It’s been known for some time that midazolam can only produce a level of sedation or deep sedation but cannot produce a level of general anesthesia, which is needed to prevent any perception of pain,” the first witness for the plaintiffs, pharmacology professor Craig Stevens, explained. Veteran anesthesiologist Michael Weinberger testified that the second and third drugs in the protocol, when administered rapidly and at extremely high doses, would be excruciating to a person who was not properly anesthetized. Both agreed that midazolam was known to have a “ceiling effect,” which would make even a massive dose inadequate to protect someone from suffering.
Also familiar was Dr. Mark Edgar, an anatomic pathologist at the Mayo Clinic in Jacksonville, Florida, who wore a short spiky haircut, thick-rimmed glasses, and Doc Martens. Beginning in 2016, Edgar had made a series of disturbing discoveries: evidence of pulmonary edema in the autopsies of people executed using midazolam. When Edgar cut into the lungs of one man executed in Ohio, he said, water spilled out onto the table.
In advance of the trial, Edgar had reviewed 32 autopsy reports from different states that relied on midazolam for lethal injection. Twenty-seven showed evidence of pulmonary edema, including John Grant’s and Bigler Stoufer’s. Grant’s autopsy showed signs of “intramuscular hemorrhage” on the tongue. This was something commonly seen in “victims of fires, it’s seen in drownings sometimes, and it’s sometimes seen in asphyxia from a variety of causes,” he said. Although autopsy reports were not yet available for Postelle or Donald Grant, there was good reason to expect similar results.
But while his findings were consistent, Edgar’s opinions had changed since his early days studying the autopsies of executed people. Where he previously believed that the pulmonary edema was “chemically induced” — that midazolam “was causing a burning, an acidic injury to the capillaries of the lungs” — the executions in Oklahoma in the run-up to the trial had given him pause.
Lawyers on both sides had hired experts to witness these executions — meaning that “for the first time, we’ve had trained observers, anesthesiologists, watching as these inmates were executed,” Edgar explained. Their observations suggested that what he was seeing in the autopsies was “negative pressure pulmonary edema,” which is caused by an obstruction in a person’s upper airways and worsens as they struggle to breathe. Edgar considered this an important revelation, which forced him to go back and reassess his previous conclusions.
The state seized on the contradiction. Mansinghani pointed out that Edgar’s conclusions supported the opinion of one of the state’s experts, anesthesiologist Ervin Yen, who had theorized that the pulmonary edema could be caused by a blockage in the airways. But whereas Yen claimed that the edema would occur after the condemned lost consciousness, Edgar disagreed. A person executed this way, he said, “would feel the sense of impending doom, of asphyxiation, of drowning, of terror.”
Edgar’s testimony cut to the heart of a problem with expert testimony on something as strange as lethal injection. There is no scientific body of research to show the effect of being injected with 500 milligrams of midazolam — a dose hundreds of times higher than what might be administered in a clinical setting. Edgar’s evidence-based work was, in many ways, as close as one could get. Since he’d first presented his findings publicly in 2018, additional research had revealed evidence of pulmonary edema in the autopsies of people executed using different lethal injection formulas, including barbiturates, which added yet another layer of questions to investigate.
But the legal system isn’t particularly accommodating of ongoing inquiry. In a courtroom, the most convincing experts are often those who offer firm conclusions, even if they amount to junk science. The Supreme Court’s decision in Glossip was largely based on the opinions of a single expert who had never administered midazolam to a patient — and whose report relied heavily on printouts from the website Drugs.com.
In theory, it’s up to a presiding judge to hold a hearing in advance of a trial to determine whether expert witnesses have the qualifications to peddle opinions on the stand. But Friot had explicitly discouraged challenges to the qualifications of the other side’s experts. In 21 years presiding over trials, he told the lawyers, he had yet to hold such a hearing — “and I don’t intend to do so here.”
Coping With Death
Hosch, the anti-death penalty activist, sat quietly in the second row over the course of the trial. She knew that the ruling was likely a foregone conclusion. Most people considered Friot’s decision to allow the recent executions to be the last word. As one advocate told her, “They used these four people as guinea pigs to justify killing the rest of the people on death row.”
Nevertheless, it felt important to be at the trial, especially for the families of people on death row. Most of them could not take time off work to sit in court all day. Others just could not bear to sit through testimony suggesting that their loved one had been tortured to death.
Donald Grant’s family was still reeling in the wake of his execution, she told me. And she received frequent text messages from the family of Gilbert Postelle, who had been executed a week before the trial began. “They are still just devastated,” she said. Unlike Grant’s family, Postelle’s relatives did not attend his execution. “He said that he did not want that to be the last image that they had of him. And it upset them,” Hosch said. “They didn’t want him surrounded by people who hated him. They wanted him to be surrounded by some people who loved him.”
Most of these men did not attract much attention outside Oklahoma. The exception was Julius Jones, who came within hours of execution in November 2021 amid a national movement proclaiming his innocence. Around Oklahoma City, street lamps and car windows still carried the message “Justice for Julius.” Meanwhile, questions loomed over the case of Richard Glossip. Despite evidence pointing to Glossip’s innocence, Hosch said that the attorney general would be seeking a death warrant as soon as a ruling came down in the state’s favor. “He’s going to try to get Richard executed as soon as possible.”
Grant did not have an innocence claim. He had committed a heinous crime: the murder of two women at a La Quinta Inn in 2001. The killings were senseless and violent. But they were also, in part, the product of lifelong mental illness that had never been treated.
Grant’s clemency petition provided a window into his background. Growing up in New York City in the 1980s, his family was in and out of shelters and welfare hotels, where he suffered profound abuse and neglect at the hands of those who were supposed to protect him. An older brother said in a declaration that their mother’s addiction to crack cocaine made her incapable of feeding her children, who resorted to stealing because they were hungry. Numerous relatives also said it was clear that Grant had mental problems starting in childhood. “I would ask him, ‘Who you talking to?’” one cousin said about Grant. Other times, “He would sit and just stare.”
After doing time in juvenile detention, then adult prison, Grant followed his mother to Oklahoma City in 1999. His mental state had deteriorated by then. He had also become a devoted believer in the Five Percent Nation, an offshoot of the Nation of Islam that convinced Grant he was among a small fraction of people who knew the truth of the universe. “He used to say things that scare me that I didn’t know where it came from,” his mother later testified.
Two years later Grant went to a La Quinta hotel outside Oklahoma City, seeking $200 to bond his girlfriend out of jail, according to his clemency petition. After filling out a job application form, he shot and killed two employees, Brenda McElyea and Felicia Suzette Smith.
The trial was delayed for years because Grant was repeatedly found to be incompetent. According to his clemency petition, Grant was evaluated 18 times by a variety of psychologists, who consistently described him as showing psychosis and paranoia. Although he was given medication to render him competent for trial, he rambled incoherently on the stand, at one point claiming to have written the Bible. Other times he just seemed flat. “He had no facial expression, like he was a zombie,” one juror told Grant’s appellate lawyers. “He rarely spoke to his attorneys. They didn’t speak to him. It wasn’t a team. … I kept trying to figure out, ‘Is this man drugged?’”
A similar dynamic appears to have stymied Grant’s federal appeals — including in the challenge to Oklahoma’s lethal injection protocol. As Emma Rolls, head of the capital habeas unit of the Western District of Oklahoma, told me last year, “Many of our clients suffer from serious mental illness and cognitive limitations; they simply cannot understand how and why the law requires them to choose an alternative.”
But Grant’s refusal to choose an alternative method of execution reflected a communication breakdown on both sides. In a 2021 affidavit, Rolls, who was not in charge of the lethal injection litigation, wrote that neither she nor her co-counsel had discussed his decision until after he was dismissed from the lawsuit. “Mr. Grant has communicated his frustration with his habeas team for not discussing this issue with him directly,” she wrote.
A Perverse Position
Some of the darkest moments in Oklahoma City stemmed from the requirement that lawyers offer better ways to kill their clients. In theory, there were plenty of methods to choose from — state lawmakers provided a backup plan should lethal injection become unconstitutional or “otherwise unavailable.” The default alternatives were laid out as electrocution, nitrogen hypoxia, or firing squad.
Under the Supreme Court’s 2019 ruling in Bucklew v. Precythe — which found that condemned people had to prove that their preferred method would substantially lower their risk of pain — lawyers did not have to limit themselves to execution methods already on the books. Regardless, lawyers for the condemned had settled on the firing squad. “While it may be gruesome to look at, we all agree it will be quicker,” one attorney told Friot at a pretrial hearing.
To make the case, the plaintiffs called an emergency physician and ballistics expert named James Williams, who had made a career training police in the use of deadly force through courses like “Shooting With X-Ray Vision.” Williams testified that execution by firing squad was “feasible” and “efficacious.” A bullet to the “cardiovascular bundle” would destroy the tissues of the heart, he explained. The subsequent “lethal arrhythmia” would immediately lead to a total loss of blood pressure. A person would be unconscious within seconds.
In order to show how swiftly a person would die upon being shot in the heart, Williams used an unsettling example: Kyle Rittenhouse’s 2020 killing of Anthony Huber following a Black Lives Matter protest in Kenosha, Wisconsin. Huber’s death was captured on video, and a medical examiner found that the bullet had gone through the left and right ventricles of his heart. According to Williams, Huber was unconscious within one to two seconds and dead shortly afterward. The same would be true of a person killed by trained marksmen. “This was done with an AR-15 rifle, which has about one-third of the ballistic energy of the rifles used in Utah firing squad protocol or the U.S. military firing squad protocol,” he said.
That attorneys working to save the lives of their clients would present such testimony seemed bizarre — even shocking. But it was also emblematic of the perverse demands now enshrined in the Supreme Court’s Eighth Amendment case law. Asking clients to choose methods like the firing squad was “inimical to the instincts and beliefs of people committed to capital defense,” Rolls told me last year. It also meant relying on antiquated evidence like Williams’s other main example: a 1938 newspaper article about a Utah man whose heart was monitored as he was executed by the firing squad. A photograph showed an electrocardiogram that captured the moment the bullets struck the man and his swift demise thereafter.
Given the comparative complexity of lethal injection — the frequently clumsy search for a vein, the often unreliable consciousness checks — it seemed like common sense that being shot through the heart might be less risky where pain was concerned. But prosecutors did their best to push back on Williams’s testimony. Wouldn’t it hurt if a person was shot in the ribs?
Particularly ironic was the state’s response to a pharmacology researcher who testified in support of a different alternative proposed by the condemned — a lethal injection formula relying on a barbiturate rather than midazolam. That witness said it should be relatively simple to produce barbiturates at an in-state lab. During a 2020 news conference announcing Oklahoma’s new protocol, the former Department of Corrections director openly described his attempts to find drugs for lethal injection as a “mad hunt” involving “seedy” people. “I was calling all around the world, to the backstreets of the Indian subcontinent, to procure drugs,” he said. But now the attorney general’s office expressed deep concern over quality control. Didn’t the production of barbiturates require certain licenses?
The final witness for the plaintiffs was Dr. Gail Van Norman, a professor of anesthesiology at the University of Washington in Seattle. Van Norman had reviewed eyewitness reports from the recent executions. She had also witnessed the execution of Postelle. In her professional opinion, all of these men had experienced pain and suffering, she said. “I think it’s a virtual medical certainty.”
Van Norman began with the execution of John Grant. Eyewitnesses said that Grant’s breathing became labored a few moments after the midazolam was administered. “At one point his back lifted dramatically off the gurney,” she said. These signs were consistent with an upper airway obstruction. “If we saw this in a patient in the operating room — I can’t imagine seeing it, but if we did — we would assume that the patient was awake, and we would do something about it.”
A post-mortem photograph of Grant was displayed on a monitor. Thick straps formed an “X” across his chest, and his outstretched hand was taped to the arm of the gurney. Yellow vomit could be seen on the pillow next to his head and on the floor. Yen, who had witnessed Grant’s execution on behalf of the state, concluded that this was merely passive regurgitation. But Van Norman rejected this. “If this was regurgitation, you would, at most, see stomach contents right next to the face,” she said. But this photo showed vomit some three feet away. If Grant was her patient, she would have assumed that he was conscious.
Van Norman saw red flags in all the executions, including those described by witnesses as uneventful. Her analysis of Postelle’s execution were especially vivid. She had sat in the front row.
After the announcement that the execution had begun, a Department of Corrections log marked the administration of midazolam. For the next two and a half minutes, Van Norman said, Postelle wiggled his hands and feet and blinked his eyes. At four minutes, he swallowed and his eyes closed partway. “I could still see eye movements,” she said — a sign that he was not fully anesthetized.
At four and a half minutes, Van Norman noticed that Postelle’s breathing appeared to be obstructed. His chest was “collapsing in” and his thyroid cartilage was “pulling down.” After the paralytic was administered, three media witnesses saw something she considered especially alarming: a tear on Postelle’s cheek. “Tearing is a sign of extreme distress,” Van Norman said. In an operating room, it would mean that a patient is “perceiving stress and pain and we should do something about it.”
But perhaps most disturbing to the spectators in the courtroom was a photograph of a monitoring strip that had been provided by the Department of Corrections. “It says ‘rocoronium,’ which is not the drug that’s called for in the Oklahoma protocol,” Van Norman said. Although it is a paralytic like vecuronium, the second drug in Oklahoma’s formula, it is not interchangeable at the same dose. “Does this suggest that perhaps the wrong drug was used?” a lawyer asked Van Norman. “We can’t rule out that the wrong drug was given,” she said.
Midazolam Roadshow
The third day of the trial fell on Ash Wednesday. That afternoon, Dr. Joseph Antognini took the stand for the state. Bald and bespectacled, he wore ashes in the shape of a cross on his forehead.
An anesthesiologist and professor at the University of California, Davis, Antognini is perhaps best known for lending his expertise to President Donald Trump’s Justice Department during its federal execution spree, arguing that executing two people with Covid-19 would not heighten their risk of suffering. More recently, he attended the execution of Donald Grant.
Antognini returned to a subject that had been repeated ad nauseam over the previous few days: the difference between induction and maintenance of general anesthesia. From the start of the trial, the plaintiffs’ experts had acknowledged that midazolam could be useful for preparing a patient for surgery. However, they stressed that the drug was not sufficient to be used on its own to keep a patient asleep and insensate. The Food and Drug Administration label for midazolam noted that it could be used “intravenously for the induction of general anesthesia before the administration of other anesthetic agents.”
Despite this language, Antognini pointed to the FDA label as evidence that midazolam could be used on its own to anesthetize a person for lethal injection. He cited a slew of medical studies that, upon closer reading, appeared to undermine his position. One explicitly said that “midazolam cannot be used alone … to maintain adequate anesthesia.” At one point, Friot asked Antognini directly if he would ever use midazolam on its own for a brief procedure. “If it was short … where it was going to literally take 30 seconds, then I might say ‘go ahead,’” he said.
Nevertheless, Antognini testified that Grant’s execution had gone smoothly. When the curtain went up shortly after 10 a.m., “the inmate was on the table.” He lifted his head and looked around. “He was laughing and smiling,” Antognini said. He could not understand Grant’s final statement, he added. “He was saying a lot of things that, quite frankly, didn’t make sense to me.”
After the midazolam was administered, Antognini said he saw a “rocking boat motion,” in which the abdomen starts to rise and the chest falls while the muscles around the tissues of the neck collapse. “That’s an indication of an airway obstruction,” he said. But he added that the motion was relatively mild. A few minutes later, a staffer entered the chamber to do a consciousness check, rubbing Grant’s sternum and pinching his arm. “Donald! Donald!” the person called out. There was no response.
Around 10:11 a.m. Antognini saw bubbles going through the IV, presumably the vecuronium. Shortly afterward, Grant’s breathing stopped. “I wasn’t able to see much of anything else in terms of the color change because it’s a dark-skinned individual,” Antognini said. But he could see that Grant’s lips had turned blue. He also saw a small amount of blood enter the IV tubing, which caught his attention. There were a number of explanations, he said, but he did not consider it concerning. “I just thought, ‘Oh, that’s interesting, I wonder what happened there.’”
The final witness for the state was Yen, the anesthesiologist. A former Oklahoma state senator and current candidate for governor, he recently left the Republican Party and became an independent, citing the GOP’s refusal to recognize the Covid-19 pandemic as “the straw that broke the camel’s back.” Unlike the other experts on both sides, Yen had not testified about lethal injection in other states, which seemed to please Friot. “Some of the opposing experts in this case have squared off in other midazolam challenges in other courts around the country, in what amounts to a midazolam roadshow,” he wrote in his ruling after the trial. Yen was the “one fresh face in this case.”
Yen certainly had the right credentials. He had served as president of the Oklahoma Society of Anesthesiologists and as chief of anesthesiology at a local hospital. But like Antognini, his testimony sometimes seemed to undermine his own position. Yen said he used midazolam several times a week. In fact, he had used it just one day earlier to treat a patient who had an infected ulcer on her foot. But even for that minor procedure, Yen did not rely upon midazolam alone; he used some fentanyl as well.
Yen had attended three of the executions carried out in advance of the trial. Each time, he concluded that the condemned had been properly anesthetized. At a hearing following the killing of John Grant, his testimony persuaded Friot that despite signs to the contrary, Grant had not suffered. “The important point here is that all of this occurred while Grant was unconscious and insensate to pain as a result of the administration of a massive dose of midazolam,” Friot wrote in his order allowing the next executions to proceed.
On the stand, Yen reiterated what he had argued in his previous reports. With the post-mortem photograph of John Grant once again displayed, he was firm that what was visible was not vomit per se, but the product of passive regurgitation. “I guess they fed the guy” is how he summarized his reaction upon seeing this in the execution chamber.
The trial ended on March 7. Before adjourning, Friot told the lawyers that he had taken 103 pages of handwritten notes. “I could not look at myself in the mirror as a U.S. district judge if I had sat down a week ago with anything other than an open mind,” he said. As both sides awaited a ruling, autopsy results were finally released for Postelle and Donald Grant. Both showed evidence of pulmonary edema. Friot’s ruling came down two weeks later. “It is safe to say that pulmonary edema is found in many inmates — it might well be the vast majority — executed by lethal injection,” he wrote. But he was satisfied that it occurred only after the condemned was “insensate to pain.”
Friot acknowledged that midazolam might not be ideal. But the Supreme Court had made clear that it was good enough. “The evidence persuades the court, and not by a small margin, that even though midazolam is not the drug of choice for maintaining prolonged deep anesthesia, it can be relied upon, as used in the Oklahoma execution protocol, to render the inmate insensate to pain for the few minutes required to complete the execution.”
Ghost of a Chance
A few weeks after the trial, Joe Robinson was in his apartment in New York City. A large U.S. Postal Service box sat in his living room with an orange sticker that read “Cremated Remains.” The ashes of his brother Donald Grant had been delivered one day earlier. It had taken almost two months for them to arrive.
Robinson was only beginning to process losing his brother. As the oldest, he had taken charge of logistics like tracking down the ashes from the funeral home in McAlester while also checking up on his surviving siblings. All of them were in pain. “There were five of us,” he said, listing their names and birthdays. “Now there are four of us.”
Robinson did not need to read the clemency petition in his brother’s case. He knew his story all too well. Although he’d spent much of his childhood in the same environment, their mother had doted on Robinson. “I knew she loved me and she told me how smart I was and this was crucial for me as a child,” he wrote in an affidavit included in the petition. “Donald, however, did not get the same kind of love or support.” Herself a victim of abuse, their mother beat Grant excessively, sometimes locking him in the closet. “She never did that to anyone else.”
Robinson made no excuses for his brother’s crimes — or his own. He had gotten caught up in the drug trade and went to prison for 25 years. But he committed himself to education while in prison, passing on his lessons in a 2007 book for incarcerated and formerly incarcerated people. “Point blank, you were not born to commit crimes; you were not predisposed to commit vicious and antisocial acts,” he wrote in the introduction. But he knew what it was like to see no other options. When it came to his brother, he told me, “I always said he didn’t have a chance.”
Robinson was haunted by something Grant said during one of their last visits, “I didn’t want this life,” he said. “I didn’t want to rob people. I didn’t want to commit crimes.” Unlike his brother, Robinson had been given a chance to overcome his mistakes. A filmmaker had even chronicled his love story with his wife, Sheila, through the letters they exchanged when he was in prison. The couple had flown to attend the execution on their 17th wedding anniversary. “So now every time I think of our anniversary, I’m gonna think about that.”
It was hard to discuss the execution itself. Every step had been carefully scripted in a way that felt almost theatrical. In the front row, Robinson held his wife’s hand in silence. When the curtain came up, his brother looked up at them from the gurney, then said, “I’m solid. I’m good.” He asked Sheila to take care of his brother. Then he recited an Islamic prayer followed by sayings that Robinson recognized as Five Percenter language. It was hard to follow. But some witnesses described Grant as simply sounding crazy, which bothered Robinson. “He didn’t sound like a lunatic to me.”
I asked Robinson about his brother’s fear and paranoia about a botched execution. It was true that Grant was terrified, he said — he used to call him first thing in the morning obsessing about it. But the label of paranoia did not sit right. “His paranoia, I think, did come from his experiences … in prison and institutions in general,” Robinson said. His brother saw what had happened to other Black men condemned to die in Oklahoma — men like Clayton Lockett, Charles Warner, and John Grant. “He wasn’t wrong for thinking like that.”
Robinson did not follow the lethal injection trial closely. But after the ruling came down, he saw news reports about Oklahoma planning to execute 25 more people. He found it unfathomable. “What could be more cruel than that?”
Polish and Ukrainian flags during a demonstration in solidarity with Ukraine in Warsaw, Poland. (photo: Jacek Marczewski/Agencja Wyborcza/Reuters)
Polish leaders marked the anniversary of the killing of Polish people during World War II and called for truth and strengthened ties with Ukraine.
Polish President Andrzej Duda and Prime Minister Mateusz Morawiecki said on Monday – during an observance of the Day of Memory of the Victims of Genocide – that the anniversary was the best time to condemn the murder of Polish civilians by Ukrainians during and just after World War II and to build proper graves for the victims.
“Let this truth in fact serve as a foundation … for new relations between our nations and societies,” Duda said.
Duda said that the truth about the wartime massacres between 1942 and 1945 had to be “firmly and clearly stated” regardless, and called on Kyiv to acknowledge the ethnic cleansing of Poles by Ukrainian nationalist militias.
“It was not about and is not about revenge, about any retaliation. There is no better proof of this than the time we have now,” Duda said, referring to the two countries’ current cooperation against Russia.
Poland is among the staunchest allies of Ukraine in its defence against Russian aggression and is providing political support, weapons, and routes for Ukraine’s exports, especially grain. Millions of Ukrainian refugees have also found shelter in Poland since Russia’s invasion in February.
The violence that occurred between the two countries during World War II remains a point of contention, however.
The issue was complex for Ukrainians, Duda said, since some regarded the same militias as heroes for the resistance they mounted against the Soviet Union and as symbols of Kyiv’s painful struggle for independence from Moscow.
“Those who we know were murderers were also heroes for Ukraine, at other times and with a different enemy, and often died at the hands of the Soviets, fighting with deep faith for an independent, free Ukraine,” he said.
‘Bloody Sunday’
For decades, under Moscow’s control, the incident was a taboo topic and it still remains hard to discuss between the neighbours.
Historians say that more than 100,000 Poles, including women and even the smallest children, perished at the hands of their Ukrainian neighbours in a nationalist drive in areas that were then in southeastern Poland and are mostly in Ukraine now.
July 11, 1943, marked the peak of the violence, known as “Bloody Sunday,” when the fighters of the Organisation of Ukrainian Nationalists carried out coordinated attacks on Poles praying in or leaving churches in more than 100 villages, chiefly in the Volhynia region.
Poland established the day of memory in 2016 and insists that the events constituted a genocide – a word that both Duda and Morawiecki used in their speeches on Monday.
Ukraine, however, describes the Organisation of Ukrainian Nationalists as independence fighters. Ukraine’s identity as a sovereign state was also built around this organisation.
There was no immediate reaction from Ukraine to Duda’s comments.
The remarks are likely to be seen as ill-timed in some Ukrainian circles who view attempts to discuss such events now as part of a Russian-inspired attempt to falsely cast Ukraine as a country in need of de-Nazifying, one of the stated aims of what Russia calls its “special military operation”.
The two Polish leaders also said that allowing this historical wound to continue festering would only divide the neighbours at a trying time and that would ultimately serve Moscow’s purposes.
A healthcare worker and a patient. (photo: ABC News)
The latest surge is a test of our pandemic priorities.
That doesn’t mean we’re about to have a surge on the scale of what we saw last winter, or that BA.5 (and its close cousin BA.4) will set us back to immunological square one. Goldstein told me that he takes “some level of comfort” in the knowledge that, based on how other countries have fared against BA.5, vaccines are still keeping a lot of people out of hospitals, intensive-care units, and morgues. The new variant is not an apocalyptic menace.
But it can’t be ignored, either. Infections (and reinfections) still matter, and by increasing both, BA.5 is extending and deepening the pandemic’s ongoing burden. “We will not prevent all transmission—that is not the goal—but we have to reduce the spread,” Maria Van Kerkhove, an infectious-disease epidemiologist at the World Health Organization, told me. “It’s not over, and we are playing with fire by letting this virus circulate at such intense levels.”
The age of Omicron began shortly after Thanksgiving, as the new variant swept through the U.S., ousting its predecessor, Delta. That initial version of Omicron, now known as BA.1, was just the first of a mini-dynasty of related variants that have since competed against one another in a grim game of succession. BA.2 took over from BA.1, and caused a surge in the spring. BA.4 and BA.5 are spreading even more quickly: First detected in South Africa in January and February, they have since displaced BA.2 all over the world, leading to surges in both cases and hospitalizations. In the U.S., BA.5 now accounts for about 54 percent of all COVID infections, and BA.4, about another 17 percent. (Most of this article will deal with BA.5 alone because it already seems to be outcompeting its cousin.) Hospitalizations have risen to their highest level since March.
You might assume that a new variant gains dominance by being inherently more transmissible than its forerunners. Using that logic, buttressed by some back-of-the-envelope calculations, some commentators have claimed that BA.5 is as transmissible as measles, making it among the most contagious viral diseases in history. But those calculations are “fully wrong,” Trevor Bedford, a virologist at the Fred Hutchinson Cancer Research Center, told me. Variants can spread rapidly without being any better at finding new hosts, as long as they’re better at slipping past those hosts’ immune defenses. That property—immune evasion—likely enabled BA.1 to oust Delta last winter. It might also explain why BA.5 is rising now.
When people are vaccinated or infected, they develop antibodies that can neutralize the coronavirus by sticking to its spike proteins—the studs on its surface that the pathogen uses to recognize and infect our cells. But BA.4 and BA.5 have several mutations that change the shape of their spikes, which, like swords that no longer fit their sheaths, are now unrecognizable to many antibodies that would have disarmed older variants. That’s why, as many studies have now consistently shown, antibodies from triple-vaccinated people, or people who had breakthrough infections with earlier variants, are three to four times less potent at neutralizing BA.4 or BA.5 than BA.1 or BA.2. This means that most people are now less protected against infection than they were two months ago—and that some people who got COVID very recently are getting reinfected now. “I hear from a lot of people who just had COVID in February, March, or April and now have it again,” Anne Hahn, a virologist and immunologist at Yale, told me.
As my colleague Katherine J. Wu has reported, the consequences of reinfections are still unclear. It’s unlikely that each subsequent bout of COVID is worse for an individual than the previous one; this idea has proliferated because of a recent preprint, which really only showed that getting reinfected is worse than not being reinfected. Nor should people worry that, as one viral news article recently suggested, “it is now possible to be reinfected with one of Omicron’s variants every two to three weeks.” BA.5 is different from its forebears but not from itself; although someone could catch the new variant despite having recently had COVID, they’d be very unlikely to get infected again in the near future.
Though previous immunity has been dialed down a few notches, since BA.5 showed up, it hasn’t disappeared entirely. “We’re seeing that new infections are disproportionately people who haven’t been infected before,” Meaghan Kall, an epidemiologist at the U.K. Health Security Agency, told me. About 70 percent of those who currently have COVID in England are first-timers, even though they account for just 15 percent of the country’s population. This clearly shows that although reinfections are a serious problem, the population still has some protection against catching even BA.5.
The degree to which the new variant escapes immunity is also a shadow of what we saw last winter, when Omicron first arrived. For comparison, antibodies in vaccinated people were 20 to 40 times worse at neutralizing BA.1 than the original coronavirus. BA.5 reduces their efficiency threefold again—a small gain of sneakiness on top of its predecessor’s dramatic flair for infiltration. “BA.5 is doing what Omicron does but with a marginally more effective immune evasion,” Kall told me. “I don’t believe that it represents a massive paradigm shift.”
Why, then, does it feel like we’re in a reinfection wave right now, with anecdotal reports being prominent in a way they weren’t seven months ago? It’s because Omicron completely changed our baseline. Before its arrival, only a third of Americans had ever experienced COVID. By the end of February, almost 60 percent had. We’re hearing more about reinfections now in part because the number of people who could possibly be reinfected has doubled.
BA.5’s impact on society will differ greatly around the world. Both South Africa and the U.K. have experienced only small rises in hospitalizations and deaths despite surging BA.5 cases, showing that “protection from vaccines against severe disease and death is still really strong,” Kall said. Portugal hasn’t been so lucky, with deaths climbing to levels that approach those of the first Omicron surge. These differences should be expected. On top of their demographic differences, countries are now complicated patchworks of immunity; citizens vary in how many times they’ve been infected or vaccinated, which vaccines they’ve gotten, and which variants they’ve encountered.
Still, it’s possible to predict what might happen as BA.5 ascends in the U.S. by looking at its effective reproduction number, or Rt—the average number of people whom each infected person then infects. The original version of Omicron, BA.1, “came in really hot,” Trevor Bedford told me. With an initial Rt of between 3 and 3.5, he estimates that it infected almost half the country in a few months, including 3 million to 4 million people a day at its peak. (These numbers are higher than the official counts, which have always been underestimates.) BA.2 was less ferocious: With an initial Rt of 1.6, it infected about one in 10 Americans in the spring, and peaked at roughly 500,000 daily infections. BA.4 and BA.5 have a slightly higher Rt but should “mostly mirror the BA.2 epidemic,” Bedford told me. It might not look that way on recent charts of new cases, where the close overlap between BA.4/BA.5’s rise and BA.2’s decline creates “the illusion of a plateau,” Bedford said, but the U.S. is nonetheless experiencing its third Omicron surge. He expects BA.5 to infect 10 to 15 percent of Americans over the next few months.
Of course, it doesn’t have to. The Biden administration, other political leaders, and many media figures have promoted laxer COVID policies, on the grounds that vaccines are still reducing the risk of death and hospitalization. But this stance is foolish for several reasons.
Even if the infection-fatality ratio for COVID—the risk that an infected person will die—falls to the level of seasonal flu, rare events stack up when the virus is allowed to spread unchecked. Bedford estimates that in such a scenario, COVID could still plausibly kill 100,000 Americans every year, “which is a lot!” he said. “It’s not like in the peak of the pandemic, but it’s a major health burden.” That burden is still mainly borne by the elderly; low-income workers; Black, Latino, and Indigenous Americans; and immunocompromised people. The entire Omicron dynasty may well have arisen from chronic infections in immunocompromised patients, in whose bodies the virus can evolve more rapidly, which suggests a self-interested case for preventing infections in this group, along with the more obvious moral rationale.
Death isn’t the only outcome that matters, either. Even without sending people to the hospital, infections can lead to the persistent and in many cases disabling symptoms of long COVID—a risk that vaccines seem to lower but not fully avert. “I’m not worried about dying from COVID, but I’m personally cautious because of worries about long COVID,” Bedford told me. “I’m not a hermit, but I’m taking mitigation measures to try not to get sick.” And even “mild” infections can still be awful. Dan Barouch, an infectious-disease specialist at Harvard Medical School, told me that friends and colleagues have “felt pretty terrible at home, sometimes for weeks, but weren’t sick enough to go to the ICU and get intubated. There’s a lot of time missed from school and work.” Waves of sick employees are still disrupting sectors that were already reeling from the Great Resignation—including the health-care system. An exodus of experienced colleagues and untenable levels of burnout have trapped health-care workers in a chronic state of crisis, which persists even when hospitalization numbers are low, and deepens whenever the numbers climb.
Preventing infections still matters, and vaccines are still a crucial means of doing so. After a frustrating delay, Omicron-specific boosters are on the way, and the FDA has recommended that these include components of BA.4 and BA.5. The updated shots won’t be ready until October at the earliest, by which time new variants could have arisen. But “even if we don’t nail the match exactly,” Goldstein said, these boosters should expand people’s antibody repertoire, leaving them better defended against not just the Omicron dynasty but also other variants that could follow. Still, “it’s important not to overpromise the efficacy of Omicron-specific boosters,” Barouch said. In terms of preventing infections, clinical data suggest that they’ll be modestly better than current vaccines, but not substantially so. And even if we get the long-desired shots that protect against all coronaviruses, it may be difficult to persuade Americans to get them.
Vaccines were never going to end the pandemic on their own. They needed to be complemented by other protective measures such as masks, better ventilation, rapid tests, and social support like paid sick leave, which were either insufficiently deployed or rolled back. And with stalled COVID funding jeopardizing supplies of tests, treatments, and vaccines, the U.S. will continue its long streak of being underprepared for new variants.
Consider BA.2.75, another member of the Omicron family, which has many spike mutations not seen in its cousins. In India, where that subvariant was first identified, it seems to be spreading at a rate double that of BA.5 and comparable to that of BA.1, Bedford told me. This worrying picture is based on a small number of samples, and BA.2.75’s actual pace may be slower. It may also struggle to spread in places like the U.S., where BA.5 already rules. But no matter what happens, this round of variants won’t be the last we contend with.
The belief that viruses inevitably evolve into milder versions is a myth: Such futures are possible but in no way guaranteed. The coronavirus could yet evolve into more severe variants, although vaccines would still be expected to blunt their sting. It could become even more contagious, although the traits that would give it a speed boost, such as higher viral loads or tighter attachments to human cells, can’t ratchet up forever. “It’s already super-transmissible, and there’s not much to gain there,” Anne Hahn told me.
Immune evasion is another matter. The virus is likely now locked with the human immune system in a perpetual evolutionary arms race. A variant emerges to circumvent our existing immunity, then vaccines and infections gradually rebuild our defenses … until another variant emerges. This is exactly what happens with flu, but the coronavirus seems to be changing even more quickly. The big uncertainty is whether the next variants will erode immunity to the small degrees that scientists expect (as BA.5 is doing) or whether they’ll do something dramatic and unexpected (as BA.1 did). This is what “living with COVID” means—a continual cat-and-mouse game that we can choose to play seriously or repeatedly forfeit.
The stakes of that game depend on a very simple question: Should we still care about preventing infections? If the answer is “not so much,” which is the implicit and sometimes explicit posture that America’s leaders have adopted, then BA.5 changes little. But if the answer is “yes,” as I and most of the experts I talk to still believe, then BA.5 is a problem.
Trump supporters stand on a Capitol Police armored vehicle as others take over the steps of the Capitol on Jan. 6, 2021. (photo: Bill Clark/CQ-Roll Call/Getty Images)
Former Oath Keepers spokesman Jason Van Tatenhove will testify. Van Tatenhove left the organization well before the Capitol insurrection and will appear as a live witness to give a historical perspective on the group.
The hearing will also look at a Dec. 19 tweet from the former president that read: "Big protests in D.C. on January 6. Be there. Will be wild!" The tweet is viewed as "a pivotal moment that spurred a chain of events, including a pre-planning by the Proud Boys," according to a committee aide.
Tuesday's hearing will be led by Reps. Stephanie Murphy and Jamie Raskin.
Beyond Van Tatenhove, committee aides declined to provide insight into other witnesses or how many will appear, citing security and harassment concerns.
"We'll give the American public a more complete understanding of the final phase of President Trump and his supporter's use of radical measures to prevent the peaceful transfer of power and overturn the 2020 election," a committee aide told reporters, adding that there will also be a focus on a pressure campaign from members of Congress on the vice president to not certify the election.
Proud Boys and Oath Keepers members have faced charges in connection with the Jan. 6 attack
Since its first hearing on its investigation last month, the panel has pointed to the involvement of both the Proud Boys and Oath Keepers on Jan. 6.
"In our hearings to come, we will show specifically how a group of Proud Boys led a mob into the Capitol building on January 6," committee Vice Chair Liz Cheney, R-Wyo., said during opening statements.
Van Tatenhove, the former Oath Keepers spokesman testifying Tuesday, started working for the group in 2014 for about two years. He was "only an employee," not a member of the group, and "purged my life of that world years ago," he told Denver TV station KDVR in an interview that aired on CNN Monday.
Members of the Proud Boys and Oath Keepers have faced charges in connection with the Jan. 6 attack over the past year and, most recently, federal prosecutors have alleged that an Oath Keeper member brought explosives into D.C. on that day.
That first panel hearing featured testimony from Nick Quested, a documentary filmmaker who was following the Proud Boys in the days leading up to the insurrection. As a part of interviews for the hearing, the committee reached out to some members of the Proud Boys and Oath Keepers who said they went to the Capitol that day because they believed that's what Trump asked them to do.
And when the panel last met, Cheney said the Trump White House had received information about planned demonstrations for Jan. 6 that included organizing and planning by the Proud Boys to attend related events that day.
The warnings included details about the events including that "unlike previous post-election protests, the targets of the pro-Trump supporters are not necessarily the counter-protesters as they were previously, but Congress itself if the target on the 6th," according to reports shown by the committee.
At that hearing, former White House aide Cassidy Hutchinson testified that she heard the words "Proud Boys" and "Oath Keepers" more often on the days leading up to Jan. 6 and there were intelligence reports warning of the potential for violence that week. Some of the reports included listings for events such as "Fight for Trump" which described the "need to flood" the Capitol and "show America, and the senators and representatives inside voting that we won't stand for election fraud!"
Here are some names to know
Committee aides specifically mentioned the hearing will discuss the extremists groups' alleged ties to Stone and Flynn.
Stone, a long-time Trump ally, was charged by the Justice Department in 2020 with witness tampering and lying to Congress in a case resulting from the Mueller investigation into Russian interference in the 2016 election. Trump pardoned him later that year.
Flynn, Trump's first national security adviser, was also pardoned by Trump from crimes also in connection to the Mueller investigation.
Those watching the hearings have already heard from Flynn. In a videotaped deposition when he was asked if the violence on Jan.6 was legal, he invoked the 5th Amendment protection against self-incrimination. Both Stone and Flynn have come up at past hearings as links between Trump and the people beyond the White House wanting to keep him in power after he lost the legal 2020 presidential election.
Two other names that could come up are Enrique Tarrio and Stewart Rhodes. Tarrio, leader of the Proud Boys, is one of the five charged with seditious conspiracy related to Jan. 6. He wasn't at the Capriol on that day, but prosecutors argue he helped coordinate the efforts. Rhodes, the founder of the Oath Keepers, attempted to be put in contact with the White House leading up to Jan. 6, according to NBC.
Another hearing to come
The committee is eyeing next week for a hearing that had been expected to take place this Thursday evening during prime time, according to select committee aides. That hearing will be led by Reps. Elaine Luria and Adam Kinzinger.
Kinzinger, one of the two Republicans on the 9-member committee, told ABC News on Sunday that the hearing would focus on the hours in the middle of the insurrection that Trump was seemingly absent.
The panel had originally planned on issuing a final report in September. However, committee aides told reporters that the timeline has shifted as the committee has received additional information. The report is still expected to be released sometime this fall though there is no specific timing.
"The move comes despite losses in Alabama and at a second warehouse in Staten Island, where workers rejected unionization pushes." (photo: Stephanie Keith/Getty Images)
Workers in North Carolina, Maryland and Kentucky bid to become unionized as criticism of retail monolith grows
The moves comes despite losses in Alabama and at a second warehouse in Staten Island, where workers rejected unionization pushes.
In Garner, North Carolina, a suburb of Raleigh, workers are pushing to organize a union at the Amazon warehouse RDU1, a 700,000 sq ft facility with four floors.
Through the grassroots organization Cause, Carolina Amazonians United for Solidarity and Empowerment, workers are demanding a $5 an hour pay increase; a return to digital time clocks rather than physical ones, where workers are forced to wait in long lines to punch in and out; longer breaks; a revision to Amazon’s time-off options; the formation of a worker committee to address grievances and appeals; and mental health resources for workers.
Albert Elliot, who has worked at the Garner plant for about 18 months, said the organizing effort began in response to mistreatment of workers across the board, from discrimination, racism, unequal treatment from managers, unfair write-ups, and insufficient breaks for the work they do.
“We are treated like robots, as if we have batteries on our backs,” said Elliott. “Management, they’re actually the robots. They have been trained to give this generic Amazon response of, ‘Well, we’re sorry that you feel that way,’ and so on and so forth. It’s just a generic response because they don’t know what to say and they don’t know what to do.”
Elliott said organizing at Amazon is challenging because of the sheer size of the warehouse, and how disconnected workers are from one another He said the focus on productivity and short breaks provides little time to communicate with co-workers, and there’s a sense of fear among workers who are not aware of their rights in the workplace.
“That’s part of our name and part of our slogan: to educate and to empower. We want to educate on each and every thing they have a right to, because the first thing you often hear people say is ‘I don’t want to lose my job’ or ‘I’m afraid I’ll get written up’,” said Elliott.
“Because of the treatment going on, a lot of workers are quitting. They feel like they don’t have a voice and they don’t stand a chance against this Amazon giant.”
He also noted that the high employee turnover makes it difficult to organize, but that they are trying to emphasize the message: ‘Don’t quit. Organize.’
Azhani Crawford, 19, started working at Amazon last year, but was laid off because her unpaid time off went in the red for being late to work, because she relied on her mother for transportation, who also has a job. Her request for a schedule change to accommodate that was ignored. She had to wait 90 days before she could reapply and get rehired. She got involved with Cause after hearing another worker with the organization discuss an unfair write-up, and problems she has experienced in trying to get help from human resources.
“Imagine how much more the process assistants and everybody above us get paid, and they don’t do anything but patrol us all day, like, ‘Hey, why are you sitting down?’ and ‘You were in the bathroom for too long,’” said Crawford.
In Upper Marlboro, Maryland, two workers with Amazonians United, an independent organizing group of Amazon workers, alleged in an unfair labor practice charge filed with the NLRB that they were fired in retaliation for union activity, including gathering signature for two petitions and organizing a walkout in March.
In Campbellsville, Kentucky, 22-year-old Matthew Littrell is trying to unionize his warehouse, SDF1, after getting inspired by the union effort in New York City. Littrell and other workers officially launched their union campaign as a new chapter of Amazon Labor Union, the independent union at JFK8 in New York.
Littrell has worked as a picker since early last year, working night shifts at the warehouse that first opened in 1999 as one of Amazon’s first warehouses. He has been part of the site’s safety committee since November.
“They don’t invest anything here as far as our safety goes, and as far as keeping the facility at a reasonable temperature. In some areas, it gets horribly hot, and you feel like you’re suffocating because there’s no ventilation,” said Littrell.
Since he started organizing, Littrell has filed an unfair labor practice charge for pushback he has received from management, including what he alleges was a retaliatory write-up for productivity and for having the police called while he was leafleting outside the parking lot in early June.
Amazon denied all allegations of retaliation in Maryland, Kentucky, and in New York at JFK8 and LDJ5, as Amazon’s objections to the JFK8 election and unfair labor practice charges alleged against Amazon at LDJ5 are still under review.
In response to the union organizing a spokesperson said in an email, “Our employees have the choice of whether or not to join a union. They always have.
“As a company, we don’t think unions are the best answer for our employees. Our focus remains on working directly with our team to continue making Amazon a great place to work.”
"In Southern California, about 2,300 infected citrus trees have been discovered and destroyed." (image: Slate/Getty Images)
It’s the 20th tree she’s seen today, and none have caused her worry. But she keeps searching, house to house, backyard to backyard. Bountiful clementine trees, whimsical potted finger limes, and mangy Meyer lemons: All are potential threats.
The visitor is a horticultural technician, one of many dispatched by California’s Citrus Pest and Disease Prevention Division, and she’s hunting for trees infected with citrus greening disease, a contagious bacterial disease pulsing through Los Angeles County. The bacterium that causes citrus greening disease won’t harm humans. But if left unchecked, it could wipe out the entire country’s supply of citrus fruits. And it all starts with one sick tree.
Ten years ago in Florida, citrus greening disease (also called Huanglongbing or yellow dragon disease) tore through commercial groves and slashed commercial orange yield by 70 percent. It gained its foothold by spreading through the backyards of citrus hobbyists, tree by domesticated tree. A similar story played out decades ago in China, where the disease was first named; in Brazil in 2004; and in Texas in 2012. The nimble bug continues to infiltrate groves in these far-flung locations. For growers, it’s a constant fight.
Now, in Southern California, about 2,300 infected citrus trees have been discovered and destroyed. “The clock is ticking as to when infected trees in commercial groves will be found,” says California grower John C. Gless of Gless Ranch Inc. With modern science, though, Californians have a chance to write a different story.
The bacterium that causes citrus greening disease is a stealthy killer. Lurking inside even the smallest cutting from your aunt’s kumquat tree or the most ordinary potted pomelo could be Candidatus Liberibacter asiaticus, or CLas, a bacterium that hinders fruit development, renders juice unpalatably sour, and eventually kills the tree—the course of citrus greening disease. The disease is asymptomatic for months, while the tree remains contagious. “You can’t see it, you don’t know it’s there, but HLB is a death sentence for citrus,” says Gless.
Before that death sentence is executed, though, CLas spreads from an infected tree to others through the air. It hitches a ride with Diaphorina citri, a flying insect about the size of a grain of rice, mottled brown with black dots on the tips of its antennae. Diaphorina citri sucks in bacteria while feeding on the phloem of new growth citrus leaves and then moves on to other citrus trees, depositing a small amount of CLas as it goes along. In Florida, hurricane winds blow bacteria-laden insects into commercial groves where they quickly infect thousands of other trees. California’s seasonal Santa Ana winds have potential to do the same.
The CPDPD and their door-to-door technicians focus on slowing the spread of the disease, hemming its boundaries. “We were able to learn from the things that occurred in Florida and Texas so we can be more proactive at preventing Huanglongbing,” says Victoria Hornbaker, director of CPDPD. From her office in Sacramento, Hornbaker keeps a running tally of infected trees alongside a map of their locations. To predict where the disease might spread, CPDPD uses a data algorithm developed by Tim Gottwald and colleagues at the USDA Agricultural Research Service labs in Fort Pierce, Florida. The model inputs geographically tagged data such as temperature distribution, locations of likely disease introduction like ports, and places devoid of citrus trees like office buildings and public parks. It outputs a blotchy map that the CPDPD uses to decide which neighborhoods to poke around.
In April, the map output northeast L.A., a neighborhood with a previous outbreak. Hornbaker’s techs rushed out to homes to inspect dozens of trees each day, looking for outward signs of citrus greening disease like blotchy leaves and green-tinted mature fruit. If they suspect a tree is sick, they pluck a few leaves, bag them, and send them to their Sacramento lab for genetic analysis. They also look for Diaphorina citri insects, and if they find one, they attempt to catch it in a bottle of alcohol and send it to the lab. If the Sacramento lab finds DNA from the citrus greening disease bacterium inside any of the samples, the CPDPD issues a “citrus quarantine.”
During quarantine, the movement of citrus trees, fruits, and cuttings is prohibited—Hornbaker’s technicians spread the word by flyering houses and holding meetings. “We are boots on the ground, doing our job to give science a chance to find a solution,” says Hornbaker.
Fortunately, researchers in academia and industry are searching for a more permanent fix. A few years ago, Hailing Jin, a plant molecular geneticist at University of California, Riverside, isolated a peptide from the citrus greening–tolerant finger lime tree that confers tolerance in other citrus trees. The peptide can be injected directly into the phloem of healthy trees. The tree will then mount a defense and create an immunological memory, similar to the action of a human vaccine.
The peptide can also act like an antibiotic. Injected into sick trees, it will infiltrate the cell membrane of the CLas bacteria and burst it. “Normally, a peptide either has antibacterial activity or they can prime the host to be more immune against a pathogen. Ours is unique that it has both activities,” says Jin. She has since partnered with Massachusetts-based company Invaio Sciences to bring a product to market in the next few years. “We need to find the best formulation, the best application, and the best delivery method, so we can control Huanglongbing,” says Jin.
Another company, Southern Gardens Citrus—a longtime player in the Florida citrus industry—has developed a different peptide and a viral vehicle for its delivery. Taken from the playbook for human vaccines, the company is using Citrus tristeza virus (like some COVID-19 vaccines use an adenovirus) as a vector to administer a spinach plant–derived peptide called defensin, an antimicrobial. Jin says that preliminary results look promising.
Other researchers are looking for ways to attack the bug rather than the bacteria. Koppert Biological Systems in São Paulo, Brazil, has engineered an insecticidal spray that contains the fungus Cordyceps fumosorosea, which disrupts feeding behavior of Diaphorina citri. Others are betting on RNAi, small bits of engineered genetic material that, if injected into a citrus tree, would be sucked in by the insect as it feeds, head toward a target gene, silence the crucial gene’s expression, and kill the insect.
Attacking the bug or bacteria will slow the spread of the disease, as will destroying infected trees. But the endgame might be to engineer trees that are not susceptible to citrus greening disease in the first place. “The ultimate goal is resistant rootstock,” says Gless. The conventional way is to identify resistant citrus varieties and selectively breed them over decades. One Florida grower discovered a naturally resistant variety of mandarins in his groves a few years ago. But it’s unclear whether growers can find enough resistant varieties to fill grocery stores.
Breeders can speed up the process through genetic modification, but GM fruit is not popular with consumers, especially in urban California. One workaround is to use the gene editing tool CRISPR-Cas9 to delete a chunk of a citrus tree’s genome that’s responsible for causing disease symptoms in the tree. If no new genetic sequence is introduced, the tree doesn’t qualify as a genetically modified organism. Nian Wang and his team at the University of Florida are busy perfecting this technique for citrus trees. They have already created modified sweet orange trees that they will test against citrus greening disease over the next few years.
Of course, none of these techniques has yet reached the average grower like Gless. “We don’t have a cure, so for now we’re being a proactive as we can,” he says. Gless Ranch sprays insecticide on trees, to keep out the insects that spread citrus greening disease, but of course, insects can eventually develop resistance to traditional foliar sprays. In the Coachella Valley, a growers’ consortium has banded together to coordinate their insect spraying activities and figure out what to do next. It’s a lot of work. “It’s meeting after meeting, and we’re putting a lot of time and effort into this battle,” says Gless.
Meanwhile, Victoria Hornbaker’s team at the CPDPD remains vigilant. At the Redlands farmers market on the outskirts of Los Angeles, the CPDPD erected a booth, a bright-orange canopy emblazoned with their website address. Underneath, a poster titled “What to look for” displays pictures: a patchy-colored leaf from an infected tree, a collection of Diaphorina citri nymphs, and Diaphorina citri adults perched on a doomed leaf. “Protect your community’s citrus!” the sign urges. Hopefully, local residents, hobbyists, and farmers are listening. And hopefully a solution will come sooner rather than later.
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