A Chance at Life, Withdrawn: When Politics Interferes with Plea Deals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