Dear Reader,

The administration of criminal law in America is not perfect. Far from it. Hundreds of people have been exonerated after being convicted and often serving decades in prison for crimes they did not commit. A huge proportion of the exonerees are people of color. Almost 84% of the people exonerated last year were people of color, and nearly 61% were Black.

Exonerations have taken place all across the country and in a variety of cases, including capital cases. Since 1973, 200 people who were on death row were exonerated, four in the last year. As in cases overall, the proven wrongful convictions on death row have also been disproportionately given to people of color. Sixty-five percent of the cases involved a person of color, and 108 of the 200 exonerees were Black.

This is the tip of an enormous iceberg. These exonerees are the rare people who were fortunate enough to have DNA evidence that conclusively established their innocence and lawyers who could help them navigate the difficult procedural path of overturning a conviction. Even the most conservative estimates suggest that roughly one percent of the people in prison are innocent, which translates to more than 22,000 people.

We can and should address the root causes of wrongful convictions. More than half are because of witnesses who lied or made false accusations, often to get a reduced sentence or more lenient treatment from the government in their own cases. Government misconduct, mistaken eyewitness identification, faulty forensic science, and false confessions are other leading causes.

Unfortunately, even if we do our best to address the causes of wrongful convictions, we will still make mistakes. Can the death penalty coexist in a system as error-prone as ours?

Whatever one’s moral views of capital punishment in cases where someone is guilty, no one can defend its use against someone who is innocent. Capital punishment is not necessary for public safety–we can incapacitate people and prevent them from harming others without putting them to death. There is a lack of empirical evidence to support claims that the death penalty is a necessary or effective deterrent. There is therefore no rational argument for continuing to use the death penalty, and every reason to stop it.

If you need further proof, look no further than two cases recently in the news. Missouri executed Marcellus Williams on September 24 even though he raised a credible claim of actual innocence, provided evidence of racial discrimination during the selection of his jury, and the prosecutor’s office that originally brought his case and the victim’s family begged the state to spare his life.

Williams was prosecuted by the St. Louis County Prosecuting Attorney and convicted in 2001 for the murder of a reporter, Felicia Gayle, that took place in 1998. It was a brutal killing. Gayle had been stabbed 43 times in what appeared to be the burglary of her home. Although there was blood all over the crime scene and a knife left in her neck, none of the forensic evidence implicated Williams.

The case was instead built on indirect evidence that the Prosecuting Attorney conceded had become “increasingly unreliable.” Two witnesses, an ex-girlfriend and a jailhouse informant, testified that Williams confessed to the murder, and the ex-girlfriend also testified that she saw Gayle’s purse in the trunk of Williams’ car. There were, however, reasons to doubt the veracity of their statements. Both were facing charges of their own for other crimes. There was also the financial incentive of a $10,000 reward for anyone with information about Gayle’s murder. The jailhouse informant received $5,000 before the trial. We know from the many wrongful conviction cases involving exonerations that incentives like the promise of a reduced sentence or a big cash reward can lead people to give false testimony. Moreover, family members of the jailhouse informant later provided affidavits confirming that he often lied to get leniency in his cases. The Prosecuting Attorney concluded that both witnesses gave testimony that contradicted evidence from the crime scene. For example, the ex-girlfriend testified that Williams told her he rinsed the murder weapon in the bathroom after stabbing the victim, but it was still in Gayle’s neck when the police arrived on the scene.

Williams’ trial also included testimony from a person who told jurors that Williams sold him a laptop that was the one missing from the victim’s home. That witness, however, told police that Williams said he obtained the laptop from the ex-girlfriend. There was, then, as much evidence linking the ex-girlfriend to the murder as there was linking Williams to it. But the laptop buyer was not permitted to tell the jury what Williams told him about the source of the laptop, so the jury did not know that information.

Fourteen years after his conviction, in 2015, Williams obtained new DNA testing of the knife used to stab the victim, and three experts who reviewed the results of that test concluded that Williams was excluded from the male DNA left behind on the murder weapon.

The St. Louis County Prosecuting Attorney filed a motion to vacate the conviction on the basis of the DNA evidence. As the motion argued, “[h]ad Mr. Williams stabbed Ms. Gayle 43 times with this knife, as the prosecution argued at trial, his DNA would have likely been found on it.” That, coupled with the fact that the bloody footprints and hairs at the scene also failed to match Williams, led the Prosecuting Attorney to conclude that Williams “may be innocent.”

That evidence also led then-Governor Eric Greitens, a Republican, to stay Williams’ first execution date on August 22, 2017. Governor Greitens also created a Board of Inquiry comprised of five retired judges to investigate Williams’ innocence claims.

After Governor Mike Parson, a former county sheriff, took office, however, he disbanded the Board of Inquiry and lifted the stay of execution. A press release accompanying these actions claimed it was “time to move forward” in the case so as to avoid “leaving the victim’s family in limbo.”

The victim’s family, however, opposed execution and supported the sentence being commuted to life without the possibility of parole. “The family defines closure as Marcellus being allowed to live.”

As if all that were not enough to cast a dark cloud over the case, new evidence emerged that the trial prosecutor in Williams’ case admitted that “part of the reason” he struck someone from the jury pool was because that person was Black. The trial prosecutor used six of his nine peremptory challenges to strike Black jurors, resulting in only one Black person on Williams’ jury.

In light of all this evidence, Williams’ lawyers struck a deal in August with the St. Louis County prosecutor’s office to enter what is known as an Alford plea, which would allow Williams to plead guilty while maintaining his innocence, and he would serve a sentence of life without parole instead of being executed. The Missouri Attorney General, Andrew Bailey, opposed the deal and got the Missouri Supreme Court to set it aside pending an evidentiary hearing.The judge presiding over that hearing also set it aside.

In challenging the deal, Bailey argued that “[n]o innocent man is willing to spend the rest of his life in prison unless he knows he is guilty.” He ignored the fact that Williams’ alternative was death.

The Supreme Court refused to issue a stay of execution in a 6-3 vote, with Justices Kagan, Sotomayor, and Jackson dissenting from the denial. Governor Parson rejected Williams’ request for clemency–apparently, his concern with the victim’s family stopped when they no longer wanted a death sentence. We will never know for sure whether Williams is innocent–and that is chilling.

A second case raising similar issues is before the Supreme Court with oral argument on October 9th. Richard Glossip is on death row in Oklahoma after being convicted in 1998 of arranging the murder of his employer, Barry Van Treese, a motel owner in Oklahoma City. No one disputes that Justin Sneed, another motel employee, committed the murder, bludgeoning Van Treese to death. Sneed, in exchange for avoiding a death sentence, testified that Glossip directed him to kill Van Treese. Glossip admits that he helped Sneed after the fact, but he has denied from the beginning that he knew Sneed was planning to kill Van Treese or that he encouraged it in any way. He has maintained his innocence for more than 26 years.

The verdict in his first trial was overturned because of ineffective assistance of counsel, and he was convicted on retrial in 2004. After reviewing the proceedings in the second trial, the state’s attorney general, Gentner Drummond, concluded that the prosecutors obtained the conviction through unconstitutional means. Specifically, prosecutors withheld evidence that Sneed had seen a psychiatrist who diagnosed him with bipolar disorder, a condition that rendered him “potentially violent,” particularly when he was using methamphetamine, which he was at the time he murdered Van Treese. Prosecutors did not disclose this evidence to Glossip, which they were under a constitutional obligation to do. Moreover, they allowed Sneed to testify falsely that he had not seen a psychiatrist, which also violates the Constitution. Because Sneed was the “indispensable witness” in the case, the withholding of this evidence casts serious doubt on the conviction.

To his credit, Drummond recognized this and filed a brief with the Oklahoma Court of Criminal Appeals supporting Glossip’s request to vacate the conviction and conduct a retrial. That court, however, denied the request, and the Supreme Court has been asked to weigh in and decide whether due process requires reversal of the conviction.

The fact that the Supreme Court denied a stay in Williams’ case may seem like an ominous sign for Glossip because Williams’ lawyers had asked the Court to grant a stay pending Glossip’s outcome. Both cases involve prosecutors’ confessions of error and agreement with a motion to vacate.

The cases are, however, different. The fact that the Supreme Court took Glossip’s case is itself a sign that it views his argument more favorably. The constitutional violations in Glossip’s case are clear, whereas the Court has been reluctant to weigh in when, as in Williams’ case, the argument rests on a freestanding claim of actual innocence without specifying other constitutional shortcomings.

It may also matter that the St. Louis County Prosecuting Attorney who confessed error, Wesley Bell, pledged while running for office never to seek the death penalty, whereas Oklahoma Attorney General Drummond is a supporter of it.

But no matter how it decides Glossip, the Supreme Court is not up to the task of making sure the death penalty is administered without error. Williams’ case makes that abundantly clear.

There are simply not enough safeguards against wrongful convictions in capital cases. We do not need to accept the horrible reality that innocent people can be put to death by the state because mistakes are inevitable. We might not be able to eradicate the mistakes, but we can abolish the death penalty. We do not need the death penalty to keep us safe, and the government should not be trusted with the power to kill. Every exoneration makes that clear–and every exoneration that should have happened but did not is a stain on the Constitution.

Stay Informed,

Rachel