As Executions Rise, A Conversation with an Attorney Whose Clients Are Facing the Death Penalty 

Florida is set to execute Michael Bell today for the shooting deaths of two people outside a Jacksonville bar in 1993. Bell will be the 26th person executed this year, putting the number of executions in 2025 higher than any year of the past decade. It’s only July, so that number is likely to keep rising.

There have also been multiple high-profile disputes in recent months over potentially innocent people facing execution. Marcellus Williams was executed in Missouri in September despite the prosecutor’s attempts to vacate the conviction. Questions over the innocence of Robert Roberson, who has been on Texas’s death row since 2003, sparked an interbranch conflict in Texas. And Richard Glossip, who has maintained his innocence during his decades on Oklahoma’s death row, took his claims that prosecutorial misconduct and withheld evidence warranted a new trial to the U.S. Supreme Court — and the Court agreed.

We talked to John Mills, one of Glossip’s attorneys in that case. Mills, with his public-interest law firm Phillips Black, represents people sentenced to death or serving life-without-parole terms. Mills spoke about recent legislation authorizing untested methods of execution, racial disparities in the death penalty, and more. This interview has been edited for brevity and clarity.

Six people were executed in June. Twenty-five have been put to death this year. Is that typical?

It’s been a particularly gruesome year. Florida has been newly quite active in conducting executions. Oklahoma had to expand the amount of time between executions because of the trauma it was causing guards at the prison. The attorney general asked that the executions be spaced 90 days apart, and they’ve been doing them just about every 90 days. Kentucky just announced that it intends to seek execution days for the first time in a very long time. Arizona had taken a nearly decade-long pause on executions but had the first execution of the year this year.

And states are experimenting with new methods of execution and killing people in ever more gruesome ways, like nitrogen gas and firing squad.

While there has been an uptick in executions, though, there’s also been a contrary long-term trend: A dramatic drop-off in new death sentences. 

Why do you think some states are resuming executions after a long hiatus?

Unfortunately, I think it’s related to political pressures. I suspect that [Gov. Andy] Beshear in Kentucky sees himself as a presidential candidate in a few years. In Arizona, too, I worry that they see it as good political theater, trying to look tough on crime in politically vulnerable states for Democrats. Don’t forget that Bill Clinton, when he was running for president as governor of Arkansas, very publicly attended an execution to demonstrate his commitment to “justice.”

You mentioned executions by nitrogen gas. Is that a new method of execution?

Yes. Alabama is the only state that has conducted executions by nitrogen gas, and there’s strong evidence to suggest that it’s not going well. People have been coughing and choking during executions, and coroners’ reports show trauma. The executions are taking much longer than everybody said they would.

In addition to nitrogen gas, some states have recently moved toward firing squads and electrocution as execution methods. What are the reasons for that shift?

Lethal injection was the main method of execution for a long time. But obtaining lethal injection drugs has always been difficult for states. Pharmaceutical companies produce medicine, not poison, and they don’t want their drugs involved in executions. They also know that it’s bad for business. On the other hand, guns are readily available. Nitrogen gas is also not hard to come by. The U.S. Supreme Court has been very clear repeatedly that it has no interest in methods-of-execution challenges. States have become more willing to experiment as a direct result of the federal courts’ unwillingness to get involved and stop them.

Can state constitutions be more protective of people facing the death penalty than the federal counterpart?

States should be willing to give independent meaning to their constitutional clauses. They are supposed to be laboratories of constitutional experimentation. There are opportunities there. Plenty of states have already recognized that their constitutional clauses limiting the ability of the state to inflict harsh punishments are broader or could be broader than the federal protections.

Some states bar cruel or unusual or just cruel punishments — as opposed to the federal Eighth Amendment’s “cruel and unusual” language — and some just have totally different provisions. The case for independent interpretation might be strongest where there are clauses that are completely different than the federal constitutional clause, like clauses in some states that prohibit treating people in custody with unnecessary rigor.

There are also opportunities to make use of different states’ own interpretive methods. Some states adopt originalism as their paradigm for their constitutional interpretation but were founded in a very different era than the than the federal government. For example, Arizona was founded at the peak of progressive power both in the state and across the country, so an originalist interpretation of Arizona’s constitution would prioritize rehabilitation and reintegration into society — as members of the founding convention stated at the time.

Have there been any state constitutional challenges to address racial disparities in the death penalty?

Washington state’s high court abolished the death penalty in light of its racist application. They did so relying on an independent interpretation of the text of their constitution. There is also a challenge pending to the racist application of California’s death penalty, under the state equal protection clause, called Office of the State Public Defender v. Bonta.

Black people make up 41 percent of those on death row, despite being only 13 percent of the population. And recent executions across the country overwhelmingly involve white victims. Twenty-five out of 26 of the last executions were for crimes against white victims.

Using the death penalty along such racialized lines is in keeping with what we know: We tend to value people differently based on their race. We tend to evaluate how extreme someone’s behavior is based on their race. There’s even social science that people assume Black males are older than they actually are compared to white males, which impacts culpability determinations. Racism is very much alive in the death penalty.

A pending Florida Supreme Court case challenges the practice of handing down death sentences even if not everyone on a jury agrees to it. Are there problems with allowing non-unanimous juries?

Non-unanimous juries have a sorry history. In Ramos v. Louisiana, the U.S. Supreme Court recognized that they were used to disenfranchise Black jurors, allowing the state to secure convictions even over a dissenting vote from a Black juror. Oregon’s history with non-unanimous juries is similar: They used them to exclude Jews from meaningful participation in jury service.

They also contribute to unreliability and diminish the voice of the community. Rules like the one in Florida mean that when a jury gets to eight votes out of twelve, it can stop deliberating. Where there are a couple of holdouts, they may be able to convince their fellow jurors to change their minds. But where jurors don’t have to all agree, juries are unlikely to finish deliberation in that way. And, of course, excluding minority voices from the determinative vote is damaging to the jurors it excludes, the health and perception of the judicial system, and fundamental fairness.

In some states, conflicts have emerged between branches of government over administration of the death penalty. Can you tell us about some of those disputes?

They are myriad. For example, in Arizona, a pro-death penalty prosecutor will likely run for attorney general because she does not think the current attorney general is seeking enough executions. The same prosecutor has sought to break with policy and precedent, seeking execution warrants where the attorney general — the one responsible for litigating the warrants — has not sought them.

After the prosecutor’s political threats and legal machinations, the attorney general abruptly ended an independent investigation into the state’s execution practices and has resumed seeking executions. The intra-executive branch conflict has been very consequential.

Conflicts like these reinforce my long-held view that the death penalty, at a minimum, is a highly controversial practice. When people get close to it in terms of understanding how it is done, they see little need to carry it out. Many states’ policies and practices also bear this out. As a policy matter, people like to have the ability to call out atrocities as worthy of extreme condemnation. But when it comes time to actually execute someone, only a tiny fraction of those potentially eligible for death ever receive it.

You represented Richard Glossip. Tell us about that case.

Richard Glossip was convicted of murder in Oklahoma County and sentenced to death. Prior to the last year or two, most people knew about Richard’s case because of the landmark decision on lethal injection authorizing Oklahoma’s use of the three-drug protocol, Glossip v. Gross.

Richard has maintained his innocence all along. After Glossip v. Gross, the law firm Reed Smith did a comprehensive investigation into his case and uncovered some extensive Brady violations, among other things. I was brought on with my colleagues to take that factual report and turn it into a state — and if necessary federal — habeas case. We gained access to still more information that the state had been holding onto, including evidence that the person Richard believed was the actual perpetrator had lied and misled the jury.

We were fortunate to get a stay of execution in Richard’s case this term from the U.S. Supreme Court. The Court narrowly held that he was entitled to a new trial.

The Oklahoma attorney general had previously said Richard’s conviction can’t be supported based on the record — it’s not a just conviction. But then he decided to retry Richard after all. He’s not seeking death this time around, thankfully.

Have attitudes toward the death penalty have changed in the last few decades?

There has been a slow and consistent decline in support for the death penalty, according to Pew Research Center, which has asked very consistent questions about people’s support for the death penalty for decades. The best indicator for how much support there is for the death penalty is to look at the people who have to hand it out: Jurors are increasingly rejecting death. Prosecutors are declining to seek death.

Suggested Citation: Kathrina (Kasia) Szymborski Wolfkot (interview John Mills), As Executions Rise, A Conversation with an Attorney Whose Clients Are Facing the Death Penalty, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Jul. 15, 2025), https://statecourtreport.org/our-work/analysis-opinion/executions-rise-conversation-attorney-whose-clients-are-facing-death