How Committed Is the Supreme Court to Executing Innocent People?

Last week, the Supreme Court refused to stop Missouri from executing Marcellus “Khaliifah” Williams despite his strong claims of innocence and objections by the St. Louis County Prosecuting Attorney’s Office. Next week, the Supreme Court will hear another capital case with strikingly similar facts: Oklahoma may execute Richard Glossip despite a mountain of exculpatory evidence undermining his conviction, and objections by the state attorney general. Glossip v. Oklahoma poses a question so perverse that it serves as an indictment of the death penalty itself: Can courts force a state to kill a likely innocent man when even the state itself does not wish to kill him?

On a new Slate Plus bonus episode of Amicus, Mark Joseph Stern discussed Glossip with Madiba Dennie, deputy editor at Balls and Strikes and author of The Originalism Trap. Below is an excerpt of their conversion, edited and condensed for clarity.

Mark Joseph Stern: There are a lot of similarities between Williams’ case and the Glossip case, which the Supreme Court is about to hear. It’s yet another situation where prosecutors themselves don’t want to execute the defendant, and yet state courts are basically trying to force them to. Can you tell us what’s going on here?

Madiba Dennie: As in Williams’ case, there was an unreliable witness at Glossip’s trial who had a personal incentive to pin the crime on Glossip. Here, the witness was the person who actually committed the murder, and he faced the death penalty. Inspired by fear of the death penalty, he pinned the crime on Glossip, saying, “I killed the victim because Glossip paid me to.” So the actual killer got life in prison, yet Glossip is facing execution. And this witness later said he wanted to recant—he admitted he was scared and just said stuff to save his life, and wanted to take it back.

That information, the recanting, was initially hidden from Glossip, and he only found out about it a few years ago. Other information was hidden from Glossip, too, including possible exculpatory DNA evidence from the crime scene, which has since been damaged. And on top of all that, we have a prosecutor—here, the state attorney general himself—saying, “I think this guy is probably innocent, and I don’t want to kill him.” Yet as with Williams, the state courts have ruled that he has to be killed. That’s preposterous to me, just absolutely outrageous.

There are some key differences between Williams’ case and Glossip’s case though.

There are two big differences. The first is that Glossip is white while Williams was Black. And while Williams’ case was clearly affected by racism, Glossip’s was not. The second is that the Oklahoma attorney general, Gentner Drummond, is actually on Glossip’s side. Whereas the Missouri attorney general, Andrew Bailey, fought against Williams at every step, just going out of his way to get Williams killed. But here, Drummond, the state’s top attorney, is confessing error and explicitly opposed to killing Glossip. These are just ridiculous conditions under which to execute somebody.

It seems literally unthinkable that courts could tell a state’s top law enforcement officer: “You are obligated to kill this man even though you think he was wrongly convicted and believe his sentence should be vacated.”

It is truly mind-boggling.

And yet, the Williams case also boggled the mind, but the Supreme Court denied the stay of execution, with all three liberals dissenting. So my question is: Reading the tea leaves, do you think there’s any hope for Glossip? Could it be that he’s white, so the Supreme Court won’t be racist toward him? Is there any reason to think his case will turn out differently?

It’s always possible. I have some hope on principle—I feel like hopelessness is self-defeating and only serves the interests of those who are going to abuse their power. There’s always some chance the Glossip’s whiteness will grant him some leeway where Williams’ Blackness did not.

Not to be too cynical, but it’s not a stretch to imagine that making a difference, right?

It’s not a stretch to imagine. And look: I won’t claim there’s a big chance, and I would never recommend someone put faith in the Supreme Court. But my hope is in people. And I hope these cases will make people realize that the death penalty has no place in a modern democratic society, and that the legal system is not actually serving the purposes that they likely think it should be. I’ve heard some folks say that nothing will change, that if executioners were concerned about innocence, then they wouldn’t be executioners in the first place. But I’m not entirely certain that’s correct. I think it’s possible that people tell themselves that these criminals committed horrible crimes, so they are participating in justice by inflicting punishment.

What if they were to learn that, actually, there’s no evidence that this person is guilty? What if they were to learn that they’d be doing an injustice by killing a likely innocent person? I think it is possible to break through the framing that people have in their heads. And remember, more than a million people petitioned to stop Missouri from murdering Williams. Yes, he was executed anyway. But I don’t think those people are going anywhere, and I think more people will probably join them. Nothing is ever static. So if I have hope, it’s that this opens people’s eyes and it becomes harder to look away, and more people become committed to doing something about the injustice before us.