Alex Murdaugh received two consecutive life sentences on Friday after he was convicted of committing crimes that might well have led to a death sentence in South Carolina and other death penalty states.
From beginning to end, his case put opponents of capital punishment in a bind.
They could applaud the prosecution’s decision not to seek such a sentence, but it is hard to ignore the fact that that the decision provided yet another example of racial and class privilege in the death penalty system.
The Murdaugh case is the latest reminder that death row, as the Los Angeles Times once put it, “isn’t a high-income neighborhood.” Throughout US history, it has been a place heavily populated by poor Black men.
Opinions in your inbox: Get exclusive access to our columnists and the best of our columns
A look at the 35 people on South Carolina’s death row drives home the point. According to the state Department of Corrections17 are Black and most grew up in poverty.
Judge called attention to Murdaugh’s lack of remorse
Judge Clifton Newman, the Black man who presided over Murdaugh’s trial, called attention to this reality even as he accepted the prosecution’s decision to let another privileged, white person escape a death sentence. In doing so, he offered an example for death penalty abolitionists to follow.
Let’s look carefully at what he said. In his remarks at Murdaugh’s sentencing hearing, the judge spoke deliberately and carefully for almost 20 minutes. During his remarks, Judge Newman noted that Murdaugh, who expressed no remorse and continued to assert his innocence, had been a prominent lawyer from a “respected family who has controlled justice in this community for over a century.”
As USA TODAY noted in its coverage of the case, the Murdaugh family “dominated the local legal scene for decades. His father, grandfather and great-grandfather were the area’s elected prosecutors for more than 80 years, and his family law firm grew to dozens of lawyers by suing railroads, corporations and other big businesses.”
The judge went on to explain that he was not questioning “the decision of the state not to pursue the death penalty.” But he took pains to make clear that the defendant could have been prosecuted for a capital crime under South Carolina law. He implied that Murdaugh would have been but for his station in life.
Opinion alerts: Get columns from your favorite columnists + expert analysis on top issues, delivered straight to your device through the USA TODAY app. Don’t have the app? Download it for free from your app store.
“This case,” Newman said, “qualifies under our death penalty statue based on the statutory aggravating circumstances of two or more people being murdered by the defendant by one act or pursuant to one scheme or course of conduct.”
The judge also refused to let the moment pass without commenting on the illuminating irony of the case. The Post and Courier of Charleston reported that three members of the Murdaugh family who served as top prosecutors in the county where Alex Murdaugh was tried had “sought the death penalty against more than 30 defendants during their 86-year reign.”
Newman referenced this fact when he said Friday, “As I sit here in this courtroom and look around at the many portraits of judges and other court officials, and reflect on the fact that over the past century, your family, including you, have been prosecuting people here in this courtroom, and many have received the death penalty, probably for lesser conduct.”
The judge then paused and let his silence envelop the courtroom. His silence drove home the continuing legacy of racial and class privilege that haunts capital punishment in his state and elsewhere.
He resumed speaking as if delivering the kind of judgment he would have handed down in a death penalty case, calling Murdaugh a “monster” for the killing of his wife and son.
The power of prosecutors: Plea bargaining and mass incarceration go hand in hand. We need to end both.
I shot my abuser to escape: Why are so many domestic violence survivors like me in prison?
In addition, the judge called attention to the gravity of Murdaugh’s repeated lies to investigators about his whereabouts the night of the murders and again when he took the witness stand in his defense. Both amounted, as Newman put it, to an “assault on the integrity of the judicial system in our state.”
This is the very kind of thing that, in another case, might have helped bring about a death sentence.
Attorney general decided not to pursue the death penalty
So why didn’t South Carolina Attorney General Alan Wilson, who is not known as an opponent of capital punishment, seek the death penalty in Murdaugh’s case? And should death penalty opponents applaud his decision, even if it reinforces class and race privilege?
When Wilson announced in December that he would not seek the death penalty in Murdaugh’s case, he offered little by way of explanation: “After carefully reviewing this case and all the surrounding facts, we have decided to seek life without parole for Alex Murdaugh.”
At the time, Wilson refused to elaborate on the reasoning behind his decision.
Mercy for justice: Why Missouri should stop the nation’s first execution of a transgender woman
Arsenal of execution methods: Return of firing squads shows death penalty and its ‘machinery’ are grinding to a halt
However, after the sentence was handed down, Wilson was more forthcoming. According to The New York Times, “prosecuting the case would have been significantly more costly if his team had pursued the death penalty, and he noted that a death sentence would have been unlikely to lead to an execution any time soon, if ever. South Carolina has not executed anyone since 2011, in part because of the difficulty the state has in obtaining lethal injection drugs.”
“There are so many factors you have to consider,” the attorney general said. “We felt like this case is complicated enough.”
Especially important here was the fact that the evidence against Murdaugh was entirely circumstantial. No eye witnesses or other evidence directly tied him to the murders.
Creighton Waters, the assistant deputy attorney general who led the prosecution, said that “avoiding the additional processes involved in a capital case was preferable, and that the outcome – a sentence of life in prison without parole – ensured that Mr. Murdaugh would not see freedom again,” according to The Times.
For death penalty abolitionists, the Murdaugh case was a mixed blessing.
It is a stark reminder that the kind of scrupulousness the prosecution claims it used in deciding not to seek the death penalty for Murdaugh is all too rare in capital prosecutions.
America’s death rows are populated by people who are there after zealous prosecutors put on costly, circumstantial caseseven when there was no real prospect that the defendant would ever be executed.
Justice demands that prosecutors everywhere be as careful as they claimed to be in the Murdaugh case, including when the people they are prosecuting are poor and Black.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College in Massachusetts.
You can read different opinions from us Board of Contributors and other writers on the Opinion front pageon Twitter @usatodayopinion and in our daily Opinion newsletter. To respond to a column, submit a comment to firstname.lastname@example.org.
This article originally appeared on USA TODAY: Why didn’t Alex Murdaugh get the death penalty? His race and wealth.