Sonia Sotomayor Warns That Texas May Execute an Innocent Man

Law is, as legal scholars and commentators have long recognized, both a refuge for those seeking to escape abuses of power and a trap in which their claims of justice get lost in a maze of statutory intricacies. Nowhere has this been more clearly on display than in the world of capital punishment.

Over the span of half a century, the Supreme Court has gone from championing the rights of capital defendants and death row inmates to deflecting and denying their pursuit of justice. Where once the court carefully scrutinized procedures used in death cases, insisting that they had to conform to the dictates of so-called super due process, today it has made the due process accorded in those cases not super at all.

The Supreme Court’s refusal on Monday to take the appeal of Texas death row inmate Rodney Reed is just the latest example of the way legal complexities can be deployed to facilitate the state’s desire to get on with the business of executing people. Reed was, in 1998, convicted and sentenced to death for the murder of Stacey Lee Stites.

Right from the start, he has maintained his innocence. He contends that Stites was killed by her fiancé, Jimmy Fennell, because he suspected that she was having an affair with Reed.

He wants a chance to prove that he was not the killer by testing Stites’ belt, which was used to strangle her, for DNA. The belt is in the state’s possession, and Reed has offered to pay for the cost of the test.

Seems simple enough.

In the new world of capital jurisprudence, however, nothing is simple, even when it could help determine the guilt or innocence of someone who faces execution. Justice Sonia Sotomayor made that clear in her stinging and persuasive dissent from the court’s denial of certiorari.

This dissent is another reminder that Sotomayor has assumed the mantle of those justices who, over the past 50 years, have made lasting contributions to the effort by persuading their colleagues to end the death penalty altogether or to provide justice and equal treatment for those caught up in the death-penalty system.

The New York Times’ Adam Liptak described her role this way in 2019: “Justice Sonia Sotomayor … maintains a sort of vigil in the capital cases other justices treat as routine.” She has used her dissents in capital cases like Reed’s “to speak to many audiences.”

Liptak quoted University of Texas School of Law professor Jordan Steiker:

She recognizes the institutional limits of the court in correcting every injustice or every misreading of federal law, yet she wants to communicate the wrongness of those injustices and misreadings despite the court’s inability to intervene.

Sotomayor is writing, Steiker noted, “to institutional actors—judges, prosecutors, defense lawyers—to make clear that the court, or least some portion of it, is keenly aware of problems that it is not presently able to correct.”

Her predecessors in this role include Justices William Brennan, Thurgood Marshall, Harry Blackmun, and Stephen Breyer. Recall that after 1976, when SCOTUS upheld the constitutionality of the death penalty, Brennan and Marshall made a regular and consistent practice of using dissents to register their belief that it could not be reconciled with the Constitution’s prohibition of cruel and unusual punishment.

As the Los Angeles Times reported in 1985, Brennan explained in a speech in San Francisco that most of the justices at the time disagreed with his views on capital punishment and that

some might find his repeated dissents on the issue “simply contrary, tiresome or quixotic.” … But he said that when it came to the death penalty, “I hope to embody a community striving for human dignity for all, although perhaps not yet arrived.”

In a 1994 dissent from a denial of certiorari in a death case, Blackmun anticipated Sotomayor’s Reed dissent 32 years later. He took his colleagues to task for their “futile effort” to achieve “consistency and rationality” in capital cases. He accused the court of “replacing … [that effort] with mere aesthetics, and abdicating its … duty to provide meaningful judicial oversight to the administration of death by the States.”

In 2015 Breyer followed suit in raising Blackmun-like arguments. “The circum­stances and the evi­dence of the death penalty’s appli­ca­tion … tak­en togeth­er with my own 20 years of expe­ri­ence on this Court,” he observed, “lead me to believe that the death penal­ty, in and of itself, now like­ly con­sti­tutes a legal­ly pro­hib­it­ed ​‘cru­el and unusu­al punishmen[t].’ ”

In the Reed case, Sotomayor did not go that far, preferring instead to point out the court’s dereliction of duty and the failure of others in the death-penalty system to stop what seems to be a manifest injustice. She highlighted the unwillingness of the court’s conservative majority to interpret a Texas law, Article 64, that provides for postconviction DNA testing in a way that would achieve its purpose, even when this refusal has dire consequences for Reed.

The story of Reed’s quest for justice began in 2014, when he asked the district attorney in Bastrop County to consent to DNA testing of Stites’ belt. The DA refused.

Reed went to court to seek relief under Article 64, which states: “A convicting court may order forensic DNA testing … if: (1) the court finds that: (A) the evidence: (i) still exists and is in a condition making DNA testing possible.”

However, as Sotomayor notes, this regulation restricts relief to cases in which the defendant can show “a chain of custody sufficient to establish that [any evidence to be tested] has not been [substantially] substituted, tampered with, replaced, or altered in any material respect.”

Reed’s suit failed when Texas courts ruled that the victim’s belt had been “contaminated after being handled by ungloved attorneys, court personnel, and possibly the jurors,” and that, as a result, any DNA testing in the case could not satisfy the chain-of-custody requirement. Reed next tried to convince federal courts that construing the statute that way did not comport with the fundamental fairness required by the 14th Amendment’s due process clause.

He pointed out that the purpose of the chain-of-custody requirement was to ensure that DNA testing could be conducted reliably. And, as Sotomayor notes, since Article 64 was adopted, “laboratories, including in the Texas Department of Public Safety, have [developed] protocols for detecting and accounting for contamination that can ensure reliable results.”

Those developments mean that the noncontamination requirement “serves no legitimate purpose.”

Sotomayor, who is clearly sympathetic to Reed’s argument, asserts that it has never been given fair consideration.

Indeed, the 5th U.S. Circuit Court of Appeals, which decided against Reed, did not, as Sotomayor puts it, “squarely confront the argument that the non-contamination requirement itself serves no legitimate purpose because DNA testing is now capable of generating accurate results even when the evidence has been contaminated.”

She concludes her dissent by noting that it is “inexplicable” that legal officials and courts in a capital case would refuse to allow DNA testing “despite the very substantial possibility that such testing could exculpate Reed and identify the real killer.” Because of the refusal of the Supreme Court to take up the case, she adds, “the state will likely execute Reed without the world ever knowing whether Reed’s or Fennell’s DNA is on the murder weapon, even though a simple DNA test could reveal that information.”

Inexplicable, indeed, to a justice like Sotomayor, who cannot bear the thought of executing the innocent. Her dissent exemplifies her belief that law should be a refuge for those who, like Reed, seek to escape the abuses of power and indifference that often play out in capital cases.

Source: SLATE, Austin Sarat, March 27, 2026

"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
— Oscar Wilde

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