A Chance at Life, Withdrawn: When Politics Interferes with Plea Deals

American prosecutors have immense power and relatively unchecked discretion in capital cases. But in several recent cases, death-sentenced prisoners reached agreements with prosecutors that would have saved them from execution, only to learn that another official had interfered to block the agreement. Critics have argued that these decisions sow public distrust in the legal process and raise concerns that government officials may be exploiting death penalty cases for political gain.

On July 31, the decades-long prosecution of the alleged 9/11 plotters appeared to take a critical step towards resolution when the Defense Department announced that plea deals had been reached with three of the accused: Khalid Shaikh Mohammed, Mustafa al-Hawsawi, and Walid bin Attash. The men agreed to plead guilty in the deaths of 2,976 people and provide detailed confessions in exchange for sentences of life without parole. These deals had been carefully negotiated for over two years by government prosecutors and appointed Pentagon officials. Key in the government’s decision to pursue a plea deal—as well as the trial delays—was the brutal torture the government inflicted on the defendants. The CIA waterboarded, beat, starved, and isolated the men for years at black sites. The 9/11 military commissions have spent over a decade hearing evidence of torture and considering whether key pieces of evidence must be excluded, which could undermine the likelihood of securing a death sentence if the case proceeded to trial.

However, on August 2, Defense Secretary Lloyd J. Austin III abruptly announced that the government would withdraw from the deals. He stripped Susan Escallier, whom he had appointed head of the Military Commissions Convening Authority, of her power to enter the pre-trial agreements and wrote that he alone could enter any plea deal. 

Some family members of victims supported the decision to withdraw, while others expressed dismay. September 11^th Families for Peaceful Tomorrows, which supported the deal, said in a statement that the reversal had caused “emotional whiplash” for grieving families and the “larger concerns today are for this country, for the future of our children and grandchildren when legal principles are compromised.” Terry Kay Rockefeller, a member of the group, said of the plea deal that she “would have liked a trial of men who hadn’t been tortured, but we got handed a really poor opportunity for justice, and this is the way to verdicts and finality.”

A military judge will decide whether the plea deals are still valid, but the New York Times reported that the death penalty may be off the table for Mr. Mohammed and Mr. al-Hawsawi regardless. Defense lawyers, apparently anticipating the possibility of the government reneging on the deal, negotiated clauses that eliminate the possibility of a death sentence if the government withdraws. The plea deals are under seal, but sources said that Mr. bin Attash did not have the same clause in his agreement. The Times reported that Secretary Austin had not read the agreements before making the decision to withdraw, and the Pentagon did not comment on whether the Secretary knew about the penalty clauses. 

Many observers saw political gamesmanship in Secretary Austin’s actions, which could jeopardize the government’s future handling of the case. “I believe Lloyd Austin’s decision is strictly motivated by election-year politics,” said Joel Shapiro, whose wife was killed in the World Trade Center attacks. Journalist Graeme Wood argued in The Atlantic that the “credibility of military courts depends on the independence of the official under whom the court operates…[and when] someone high in the chain of command fires that official, apparently for the sole reason that the higher authority does not like an outcome she approved, that looks a lot like what military lawyers call ‘unlawful command influence.’” J. Wells Dixon of the Center for Constitutional Rights told Mr. Wood that if Secretary Austin “felt pressure from the White House, or pressure from legislators who have oversight [of the military]…that would be fatal to the case.” Mr. Dixon said that the military commission rules list legitimate reasons for canceling a plea deal—but “none are ‘the agreement is politically toxic.’”

Politics may have doomed another plea deal, this time at the state level. St. Louis Prosecuting Attorney Wesley Bell had supported Marcellus Williams’ requests for a new trial based on widespread doubts about Mr. Williams’ guilt, including a lack of evidence connecting him to the murder scene and the fact that the two witnesses against him received thousands of dollars in rewards. On August 21, Mr. Bell announced that Mr. Williams had agreed to enter an “Alford plea” in exchange for a sentence of life without parole, and Judge Bruce Hilton approved the deal. However, Missouri Attorney General Andrew Bailey, who has a history of blocking relief for prisoners with innocence claims, asked the Missouri Supreme Court to intervene. The Missouri Supreme Court ruled that Mr. Bell and the trial court did not have the authority to vacate Mr. Williams’ death sentence. Judge Hilton then rejected Mr. Williams’ innocence claim, and higher courts refused to stay his execution. Over 1.4 million people signed petitions to halt Mr. Williams’ execution, but Missouri executed Mr. Williams on September 24, provoking worldwide outrage.

In our recent report, Lethal Election: How the U.S. Electoral Process Increases the Arbitrariness of the Death Penalty, the Death Penalty Information Center found evidence that many state prosecutors, judges, and governors behave differently in death penalty cases when facing reelection. Some elected officials may act more punitively based on a belief that a “tough on crime” stance will win votes, while others have taken a more critical approach, mirroring recent polling that shows declining public support and concerns about use of the death penalty. In Mr. Williams’ case, Mr. Bell, Judge Hilton, AG Bailey, and two Missouri Supreme Court justices all face elections this fall. Mr. Williams’ case “just shows how much politics factors into capital punishment,” said Alexis Hoag-Fordjour, a professor at Brooklyn Law School and death penalty expert. “It no longer has to do with somebody’s criminal culpability and what is the appropriate punishment for certain culpability, but rather politics. It just seems so arbitrary—and that’s exactly what the death penalty is not supposed to involve, arbitrariness.” (Professor Hoag-Fordjour is a board member of the Death Penalty Information Center.) 

The U.S. Supreme Court will soon consider the importance of a prosecutor’s decision to admit error and support a death-sentenced prisoner’s efforts for relief. In Oklahoma, Attorney General Gentner Drummond supports Richard Glossip’s motion for a new trial after an investigation revealed that the state hid material evidence of prosecutorial misconduct from Mr. Glossip for years. After the Oklahoma Court of Criminal Appeals rejected a joint appeal by Mr. Glossip and AG Drummond, Mr. Glossip asked the Supreme Court to answer whether “due process of law requires reversal, where a capital conviction is so infected with errors that the State no longer seeks to defend it.” In 2023 the Court ruled in favor of Areli Escobar, sentenced to death in Texas, under similar circumstances; the district attorney supported relief but the parties were blocked by Texas’ high court. The Supreme Court ordered Texas’ high court to reconsider its ruling “in light of the confession of error by Texas.” The Supreme Court will hear arguments in Mr. Glossip’s case on October 9.