What Apathetic Death Penalty Rulings Tell Us About the Supreme Court

Marcellus Williams should be alive right now. If justice means anything to our country, it should at least mean that we don’t execute people who are likely innocent.

Yet somehow, the conservatives who make up the Missouri Supreme Court supermajority, the Missouri attorney general, the Missouri governor and the U.S. Supreme Court supermajority all concluded that Williams must die.

It didn’t matter that Williams’ constitutional right to due process was violated every step of the way. Not only was there no evidence connecting Williams to the murder he was accused of, but in fact there was DNA evidence exonerating him. It didn’t matter that the prosecutor struck prospective Black jurors to create an almost all-white jury. It didn’t matter that now some of those jurors, that prosecutor’s office and the victim’s own family opposed his execution. Williams was still executed on Sept. 24, less than two hours after the 6-3 Supreme Court order approved it.

How did we get to this point in which so many administrators of justice could willingly ignore all of the flaws in this conviction and insist upon the finality of the death penalty? What does it say that they care more about the finality of the original conviction and sentence than whether to consider all of the essential information that became available since? What does it say that they care more about preserving an unjust system riddled with racism than preserving the rights — and life — of a likely innocent man?

One need not debate the morality of capital punishment itself to recognize the disproportionate impact it has on vulnerable groups. As of 2019, Black and Hispanic people made up 53% of death row inmates despite only representing 31% of the population. Out of 200 death row exonerations since 1972, 65% were people of color — 54% of whom were Black. The death penalty is disproportionately harming people of color, and the finality of executions ensures that harm cannot be undone or corrected.

Most countries, including almost all modern democracies, have abolished the death penalty, but the United States’ retention of it keeps us in the company of nations like China, Iran and Saudi Arabia, the countries that perform the most executions. Despite there being no evidence that its enforcement does anything to deter crime, and despite it costing the state even more to enforce than life sentences, conservatives hold onto — and in fact insist upon — this archaic practice. It’s difficult not to suspect their motivations for doing so given the impact.

As the Supreme Court’s conservatives have made it harder to fight the death penalty over the years, we’ve learned more about their warped sense of justice. In the 2022 case of Barry Jones, the political divide was made quite clear. Justice Sonia Sotomayor, dissenting along with the liberals, explained what most people understand as common sense: that the purpose of a criminal trial is to determine guilt. But Justice Clarence Thomas and the conservative majority instead articulated that trials are a procedure for enforcing the law and that all determinations must be final. It doesn’t matter what evidence comes to light later — or whether an innocent man is set to die. 

This is the ethos of the conservative, Federalist Society approach to the law: might makes right. If they’re in power, what they say goes. To admit that the system could get it wrong or to be the one to say someone deserves a second chance and reconsideration would be, in their minds, to admit vulnerability and show weakness.

It’s essential that we be able to correct the mistakes of our justice system when lives are on the line.

We must recognize that this is the same philosophy we’ve seen in cases undermining abortion rights, gun safety, environmental protections and the rule of law. The conservative justices on the Supreme Court are reaching their conclusions first and then inventing legal interpretations out of whole cloth to justify them. They have an agenda, and not only do the facts not matter, but neither do the people who face the consequences.

That can’t be our approach to justice. Guilt is supposed to be determined beyond a reasonable doubt, and there must be mechanisms to consider new doubts. Even for those who support the death penalty, we must agree that executing innocent people is a huge miscarriage of justice to be avoided at all costs. This is why it’s so important that we consider new judges and justices who actually have experience representing everyday Americans and who aren’t just dedicated to maintaining a strict conservative status quo.

Williams is hardly an exception, as others face the final judgment of the death penalty. Just this month, the Court considered the case of Richard Glossip, who is fighting for a new trial in an Oklahoma capital case given a very flawed conviction, but it was unclear how the justices will rule. Texas was also set to execute Robert Roberson on Oct. 17 despite overwhelming evidence his daughter’s death was due to accidental and natural causes, and the Supreme Court was ready to let it happen. Thankfully the Texas state courts, with an assist from a bipartisan group of lawmakers, delayed his execution (for now). 

What can be done to save likely innocent lives? The death penalty is still on the books in 27 states and is permitted at the federal level and in the military. It will take a great deal of advocacy to reverse all of those policies. In the meantime, so long as the Court’s makeup doesn’t change, we should expect the conservative supermajority to continue greenlighting any and all executions. As is the case on so many issues, Supreme Court expansion — and the swift appointment of justices actually worthy of the title — is the only proposed reform that can deliver immediate relief for those who can’t afford to wait. 

It’s an important skill of humanity to admit when you’re wrong. But it’s essential that we be able to correct the mistakes of our justice system when lives are on the line. So long as conservatives have the power to force their unflinching barbaric practices on our justice system, more of those innocent lives will be lost — and for nothing.

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Keith Thirion is the interim co-president and vice president of strategy at Alliance for Justice. As a contributor to Democracy Docket, Thirion writes about the U.S. Supreme Court, judicial reform and the importance of state courts.