Last night’s execution of Marcellus Williams, a man who the jury, the victim’s family, and the prosecutor who tried his case now all say is innocent, brought up a lot of old thoughts.
The death penalty is one of the things that I rarely talk about, largely because I feel it so hard. I will never not feel it, and I will never let it go.
When people argue about the death penalty, one of the arguments is that some people deserve death for what they have done. I don’t know that if you held that belief, I could convince you of anything else. I’m not sure I know what people really deserve; most of us don’t get it, and that’s lucky for us.
But this is something I believe: nobody deserves to be made a killer because it is demanded of them by the government, and we all pay the price because the administration of death makes killers of the people in charge.
Many years ago, I clerked for the Supreme Court. Death is a constant presence at the Supreme Court. In addition to the regular docket of cases, there is also a death list: a list that shows projected execution dates months into the future, even if no filings have yet been made with the Court.
Each clerk was assigned an execution. Sometimes—often, in fact—you would get lucky and the execution would get delayed for some procedural reason before you had to do anything.
Other times, it would become clear that the execution was going through. When it did, inevitably, at some point, the Court would get (at least one) last minute filing. In general, petitioners need to work their way up to the Supreme Court, and so when you see that someone has filed a petition at the Court an hour before the execution, understand that there is a procedure in place.
The clerks assigned to the case have already read all the filings in the lower courts, because the Court knows what is coming. Execution is never a surprise. The clerks involved read the case days in advance. They know what is happening, and have already briefed their justices and come to a conclusion about what they will decide.
Nonetheless, just in case (at least in our year) we had to stay at the Court. (It’s been 16 years, and things may have changed) Executions are often in the early hours of the morning, and so if you were on a case that was going to execution, you’d stay in the Court building, spooky and empty but for the other clerks, waiting to see if perhaps something unexpected would come up—because if it did, you would need to call your Justice and decide what to do. Of course you stayed up until 2 AM waiting. This was someone’s life.
By the time someone is set to be executed, they have gone through years of procedure, much of it heartless, grueling, and unforgiving. You are the person who relays that last final bit of procedure: you are the one, where if there is a petition, you contact your Justice. You give your recommendation. Your recommendation is bounded by precedent and law; usually, after years of procedure, the law gives you one possibility. You say to your Justice, “I recommend deny.” Your Justice agrees, or disagrees.
The Court issues a denial. Minutes later, the prisoner is executed: you were the only thing that stood in the way of that person not dying.
Every person who has clerked at the Court has done this: they have recommended a course of action; someone has died.
People deal with the heaviness of this in many different ways. Some people don’t let themselves feel the feelings. Some people feel them too much. Some people hide behind the fact that precedent bound your decision, so it wasn’t really you doing it.
I did not let myself run away from my feelings. I made myself feel everything. I read the documents in the cases I had. I made myself feel for the victims; I made myself feel for the prisoner. I reminded myself every time that it happened that my hand was a part of the result, because I felt that to harden myself to any other option would make me too hard.
I could see other people hardening themselves, stepping away from their complicity in what was happening. I could see it in Scalia’s statement about innocence back in 1993: “With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon.”
I could see it in Justice Blackmun’s dissent in Callins v. Collins, when he said that he concluded that the administration of the death penalty could not be done in the fair, consistent, and reliable manner required by the Constitution—that after decades of trying as a justice, no set of rules that allowed him to feel that death was done justly. He said then: “From this day forward, I no longer shall tinker with the machinery of death.”
Many of the Justices since Blackmun have taken the opposite approach. I cannot talk about some of the things I personally observed: things I heard people say, comments that I heard from Justices and fellow clerks. But I can tell you the thrust of my observation: tinkering with death makes a large percentage of those who do so harden themselves. It makes them want to hide behind precedent that they uphold and law that they create. It makes them less compassionate people. And that lack of compassion—that hardness, that separation that they put between themselves and their decisions—harms us all.
The death penalty is barbaric not because of what any one person deserves; the question of desert is one I leave to a higher and better power. The death penalty makes those who administer it barbaric, and we are reaping the consequences.
To take a couplet of poetry out of context:
