Five executions, five states: a glut of judicial killing not seen in 20
years took place last week – and there was nothing random about it
The death penalty is waning in America. Most states have abolished it
or put it on pause, the annual crop of executions and new death
sentences is in decline, and public opinion is turning steadily against
the practice.
So the battle to break America’s primal adherence to a-life-for-a-life is prevailing.
Not this week, it isn’t. Five executions. Five different states over six days of horror.
This
was the week in which America’s ailing death penalty bit back. Such a
concentrated glut of judicial killing was last seen more than 20 years
ago in the US.
Across the US south and midwest – from Alabama to Missouri, Oklahoma to South Carolina,
and of course in the heart of it all, Texas – states fired up their
death chambers. Experts said it was a random coincidence that so many
capital cases, with their convoluted legal journeys, came to a climax at
once.
But there was nothing random or
coincidental about the disdain for probable innocence that was on
display this week. Nor about the racial animus, or the callous
indifference to life animating supposedly “right-to-life” states.
“This week has exposed the reality of the death penalty in America, in
all its brutality and injustice,” said Maya Foa, joint executive
director of the human rights group Reprieve. “Across the US, executing
states are going to ever more extreme lengths to prop up the practice.”
While much of the US is focused on Donald Trump’s
remolding of the Republican party and his efforts to bring his Make
America Great Again (Maga) movement back to the White House in
November’s election, a parallel shift has taken hold in the death
penalty world, albeit behind the scenes and largely unnoticed.
Republican prosecutors, many of whom pay lip service to Trump and his
Maga values, have become increasingly aggressive in pushing capital
cases to finality.
The federal courts, which Trump transformed by appointing more than 200 judges
during his presidency, have also changed their tune. Where they once
acted as a failsafe against unreliable convictions, they now largely
step aside.
That is especially true of the US
supreme court, with its new ultra-right supermajority secured by Trump’s
three appointed justices, Neil Gorsuch, Brett Kavanaugh and Amy Coney
Barrett.
“There’s been a radical shift in the legal culture as it relates to the death penalty in the past six years,” said Bryan Stevenson,
founder of the Equal Justice Initiative, who perhaps more than anyone
has alerted Americans to the inequities of death row. “The refs are
gone, there is no more oversight.”
The result,
Stevenson said, was that the rump of largely southern states still
wedded to capital punishment are now unbound. “Without safeguards,
without accountability, the states have leeway to do pretty much what
they want,” he said.
Any
analysis of the death penalty in America should begin with innocence.
It’s the great fear that until recently concerned even hardcore
supporters of capital punishment – that the state might be poised to
kill an innocent person.
That anxiety also
guided the supreme court. “Death is different” was their mantra – the
idea being that with no appeal possible once a condemned man’s heart has
been stopped, his conviction had better be sound.
“There was a time when if you had a decent
innocence case, with enough questions raised, then you could rely on the
courts to stay the execution,” said Stephen Bright, one of the most
revered capital defenders who for more than 40 years has exposed
injustices across the US south. “But look at Missouri. It’s just unbelievable.”
By
Missouri, Bright was referring to the case of Marcellus “Khaliifah”
Williams, 55. Doubts in his death sentence for murdering a local
newspaper reporter, Lisha Gayle, in 1998 were abundant.
Though
there was plenty of DNA material left on the kitchen knife used to
commit the crime, none of it matched Williams’s. Other forensic evidence
had been destroyed or contaminated by prosecutors, leaving the
defendant to be sent to death row on the basis of two witnesses with
incentives to testify against him including leniency in their own
criminal cases and a $10,000 reward.
With
so many glaring contradictions, calls for a reprieve grew deafening
this week. They came from the victim’s family, the Gayles, who pleaded
for a stay of execution.
They
came too from the current prosecuting attorney in St Louis county who
was so concerned that a miscarriage of justice had been committed by his
own office that he even signed off on a court-approved agreement to
spare Williams’s life.
Missouri’s Republican attorney general, Andrew Bailey, a Maga loyalist who has used the power of his office to try to overturn
Trump’s 34 felony convictions in the New York hush-money case, was
unimpressed. He threw out the court-backed deal, swept aside the searing
doubts and sent Williams to the death chamber.
The
US supreme court was also unimpressed. The supermajority of six
ultra-conservative justices, Trump’s triad of appointees among them,
refused to consider a last-minute petition from Williams, without
offering an explanation. The three liberal-leaning justices – Sonia
Sotomayor, Elena Kagan and Ketanji Brown Jackson – dissented, saying
they would have granted a stay, but were overruled.
Williams was executed by lethal injection and pronounced dead at 6.10pm on Tuesday.
“You’ve
got the prosecuting attorney saying don’t execute this guy, the
victim’s family saying don’t execute this guy, and you go ahead and
execute him,” Bright said. “Really? I mean, what’s the point of that?”
Two of the five prisoners killed this week had
strong claims of innocence. In addition to Williams, there was Khalil
Divine Black Sun Allah, 46, AKA Freddie Owens, who last Friday became
the first person to be executed by South Carolina in 13 years.
Yet
again, no forensic evidence linked Allah to the murder of a convenience
store cashier, Irene Graves, in 1997. Yet again, he was sent to death
row on the testimony of a self-interested party, in this case his
co-defendant who last week came forward and gave sworn testimony that
Allah had not been present at the robbery.
Despite such misgivings, Henry McMaster, the Republican governor of South Carolina, who has called Trump
“the face of America’s strength”, declined to grant Allah clemency. The
supreme court also refused to hear an appeal, with Sotomayor this time
dissenting.
Allah was pronounced dead at 6.55pm last Friday.
Three
of the five men executed this week were Black. They were Williams and
Allah, and a third man on death row, Emmanuel Littlejohn, 52.
Littlejohn was executed by Oklahoma on Thursday
for the 1992 murder of a convenience store owner, Kenneth Meers. Doubts
swirled around his conviction, too. Littlejohn confessed that he had
been part of the robbery, but insisted that he had not pulled the
trigger.
Once more, such concerns did not
trouble the state’s Trump-endorsed governor, Kevin Stitt, who declined
clemency. His decision was paradoxical, given that Stitt has bragged about Oklahoma being the “most pro-life state in the country”.
The heavy bias towards Black prisoners going to
their deaths this week reflects a nationwide reality. Since 1976, 34% of
all those executed have been African American, while just 13% of the
country’s population are Black, according to the Death Penalty Information Center.
In
Williams’s case, the racial rot went deeper. Shortly before he was
executed, the original trial prosecutor testified that he had removed a
potential juror from the jury pool partly because he was Black – a
discriminatory move that is banned under the US constitution.
Six of the seven potential Black jurors were thrown out, creating a final jury with 11 white members and one Black member.
“I
don’t think anything represents our long history of racial injustice
more dramatically than the tolerance of racial bias in the
administration of the death penalty,” Stevenson said. “For a Black
defendant to be tried by a nearly all-white jury in a county with a
substantial Black population, and have the courts look the other way,
that’s the shadow, the pollution, that the history of lynching and
segregation and punitive enslavement has created.”
Another
trait in the way the death penalty is now administered was on lurid
display this week. Some call it brutality, others cruelty, and in the
case of Alan Miller, it has even been denounced as torture.
On
Thursday, Miller, 59, was put to death by Alabama for the 1999
shootings of three of his co-workers. The state used nitrogen gas
effectively to suffocate him – an experimental killing technique that
has only been deployed once before in US history, with the execution in
January of Kenneth Smith, also by Alabama.
An eyewitness for the
Associated Press described Miller’s death by nitrogen in hauntingly similar terms
to Smith’s:
“He shook and trembled on the gurney for about two minutes with his
body at times pulling against the restraints. That was followed by about
six minutes of periodic gulping.
But that convulsive death was not the most
disturbing aspect of Miller’s end. This was the second time that guards
had escorted the prisoner to the death chamber and strapped him to the
gurney – Alabama had tried to kill him once before and failed.
In
court documents, Miller told how in September 2022, nameless officials
dressed in green and aqua scrubs spent 90 minutes searching for one of
his veins through which they could inject lethal drugs. They stuck
needles into his biceps, inner arms, elbow pit, hands and feet.
When
that didn’t work, they slapped his neck to see if that might produce
results, then suspended him upside down on the gurney to aid blood flow.
They left him dangling there, head down, for 20 minutes.
“Mr
Miller was deeply disturbed by state employees silently staring at him
while he was hanging vertically from the gurney,” the court document
says.
Miller’s 2022 execution had a happy
conclusion, of sorts. Shortly before midnight, the department of
corrections admitted defeat and sent him back to his cell, then promptly
began the paperwork to get him back in the death chamber.
This week they got their way. Miller was pronounced dead at 6.38pm on Thursday.
Spare
a thought for the fifth condemned man to die this week, Travis Mullis,
38. Of the five, he attracted least media attention, and yet his
execution by Texas also speaks volumes.
Mullis,
who was convicted for killing his three-month-old son, Alijah, in 2008,
was what is known as a “volunteer” – meaning, he actively wanted to
die, waiving all appeals and urging his executioners on.
In his last statement, Mullis called his death a form of “assisted suicide” – which is not inaccurate.
Texas, a state that bans physician-assisted suicide, loaded Mullis up with the sedative pentobarbital and helped him slip away.
He was pronounced dead at 7.01pm on Tuesday.
Where
does this week’s orgy of death leave the US? Anyone hoping for answers
from the current political moment are likely to be disappointed.
Trump
has indicated that if he wins in November, he will pursue the federal
death penalty with even more gusto than he did when he was last in
office. In the final days of his presidency, his administration executed
13 federal prisoners – more than under any president in 120 years.
Meanwhile,
Kamala Harris, the vice-president and Democratic presidential
candidate, has gone silent on the subject. She used to be an avowed
abolitionist, but now she declines to comment, and this summer the Democratic party quietly removed opposition to capital punishment from its official platform.
That
leaves Bryan Stevenson fearful for the future. He said: “When people
are executed even when the prosecutor says they are likely innocent,
when others are subjected to torturous multiple executions, when the
death penalty continues to be so skewed by race – then you know that the
integrity of the United States, its moral quotient, is in question.”
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