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.
This week is a case in point.
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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.
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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.”
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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.
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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.
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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.”
