Marcellus Williams was executed by lethal injection in Missouri yesterday after Gov. Mike Parson (R), the Missouri Supreme Court and the U.S. Supreme Court all refused to save his life.
Prosecutors and the victim’s family urged that he be spared based on DNA evidence showing that Williams was in fact innocent. The legal stopgaps for preventing such a tragedy all failed, underscoring a gaping hole in American criminal law: a mechanism for ensuring that people possessing proof of innocence do not lose their life or liberty at the hands of the government.
On August 11, 1998, Felicia “Licia” Gayle, a former reporter for the St. Louis Post-Dispatch, was found stabbed to death at her home outside St. Louis. Forensic evidence found at the scene included fingerprints, footprints, hair and DNA on a butcher knife. The footprints and DNA did not match those of Williams, and the fingerprints were lost by the police.
Williams was nonetheless convicted of murder based on two jailhouse witnesses who said Williams confessed to them. In exchange for their testimony against Williams, both secured reward money and shorter sentences in their own cases. In addition, six of the seven potential jurors who were black were stricken from the jury pool.
In 2015, the Missouri Supreme Court stayed the death sentence. Two years later, then-Gov. Eric Greitens (R) granted Williams a reprieve just hours before his execution, based on new DNA testing from the handle of the murder weapon. Numerous scientific experts concluded the DNA could not have belonged to Williams. Greitens appointed a board to investigate Williams’s request to permanently commute his sentence to life in prison. But when Parson assumed the governorship in 2023, he immediately disbanded the board before it could issue a final report, stating that it was “time to move forward” with the execution.
Meanwhile, upon learning that the knife had been contaminated by a former prosecutor who handled it without gloves, St. Louis County prosecutors offered Williams an “Alford plea,” whereby he could plead guilty without admitting to the crime, thereby commuting his sentence to life in prison. Missouri Attorney General Andrew Bailey (R) and the state Supreme Court both blocked the deal, and Parson later denied his clemency request. On Tuesday, the U.S. Supreme Court refused to stay his execution.
Statistics confirm the disturbing fact that America executes innocent people — and that in many cases, their convictions were tainted by racial prejudice. According to the Death Penalty Information Center, at least 200 people who were sentenced to death since 1973 were later found to be innocent after they were retried with more experienced counsel, different juries and access to scientific evidence. According to the National Registry of Exonerations, moreover, as of 2016, “judging from exonerations, innocent black people are about seven times more likely to be convicted of murder than innocent white people.”
What’s in place under the law to stall or even stop such injustices? Not much.
Although the Eighth Amendment to the Constitution bans “cruel and unusual punishment,” the Supreme Court held in 1976 in Gregg v. Georgia that the death penalty does not qualify as cruel or unusual and is therefore constitutional. This came four years after the court reached the opposite conclusion in Furman v. Georgia, finding that the death penalty constituted cruel and unusual punishment — a ruling that itself broke from prior precedent tolerating the death penalty to some degree or another.
A sentence can be challenged for other reasons by two means: on direct appeal, meaning an automatic appeal of a conviction and sentence to a higher court, or by filing a separate civil action for what’s called a writ of habeas corpus. Originating in 1215 through the Magna Carta, habeas corpus is a Latin term meaning “that you have the body.” A habeas petition challenges the prisoner’s detention or confinement rather than their conviction, which can be especially important when the opportunity for raising issues on direct appeal has expired.
Williams filed two habeas petitions — one based on ineffective assistance of counsel and the other seeking DNA testing on the knife’s handle. Both were summarily denied. The new DNA evidence showing that Williams could not have committed the crime was discovered later. But even if that formed the basis of a habeas petition, it might not have been enough.
In the 1993 case case Herrera v. Collins, the Supreme Court held that a prisoner on death row could not obtain habeas corpus relief based on new evidence that he was actually innocent unless he could also show that his constitutional rights were separately violated at some point in the underlying state criminal proceeding — by juror misconduct or improperly admitted evidence, for example. As Justice Antonin Scalia wrote in a dissenting opinion in the 2009 decision In re Davis, “the Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”
Somewhat remarkably, in his majority opinion in Herrera, Chief Justice William Rehnquist raised the possibility of a pardon to rationalize this harsh result. “Executive clemency has provided the ‘fail safe’ in our criminal justice system,” he wrote. “It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence.”
In Missouri, innocence can provide the basis for a pardon. Yet despite the evidence of his innocence and the support of prosecutors and Gayle’s family, Williams did not receive a pardon from the governor. Although known as a “prolific pardoner,” Parson had denied approximately 2,400 requests in Missouri while granting 618 pardons and 20 commutations as of November 2023.
Because it is impossible to appeal a pardon decision to a higher authority, Williams’s very life, like those of thousands like him across the nation, hung on the whims of a single person. In many states, governors do not possess the extent of unilateral authority that Parson has. But that fact only limits the pardon as a safety valve for wrongful convictions. With habeas corpus relief mostly unavailable despite proof of innocence, this means that the U.S. is jailing (and even executing) too many of the wrong people, while the prison system costs on average $80 billion a year.
This heads-we-win, tails-you-lose system of justice has no place in modern America, when technological advances could be employed to minimize the number of people paying high prices for crimes they did not commit. It will take the will of the people to care enough to insist on reform.
Kimberly Wehle is author of the new book “Pardon Power: How the Pardon System Works — and Why.”