In December, South Carolina Attorney General Alan Wilson announced he would not seek the death penalty in the case of Austin Murdaugh, a disgraced lawyer convicted of murdering his wife and son.

Law professor Austin Sarat wrote a column for USA Today arguing that Judge Clifton Newman, who is Black, seemed keenly aware of the potential for a different outcome if Murdaugh was not a wealthy white man — part of the “good ole boys” network, if you will. At the sentencing, Newman spokedeliberately and carefully for nearly 20 minutes and suggested that Murdaugh could have received the death penalty if he had not been so wellconnected and affluent.

 
“The judge then paused and let his silence envelop the courtroom,” Sarat wrote. “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.”

“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,” Sarat wrote. “America’s death rows are populated by people who are there after zealous prosecutors put on costly, circumstantial cases, even 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.”

The “good ole boys” network is alive and well in South Carolina and many other southern states. One can’t help but wonder what the outcome of this trial might have been if one of those “in the club” judges got the case instead of Judge Newman, who was clearly not “in the club.” Would Murdaugh even have been convicted?