Thursday, September 22, 2011

"Doubt" is not a thing

But it should be:

In 2007 the Georgia Board of Pardons and Paroles, the body which has the final say in the state on whether executions should go ahead, made a solemn promise. Troy Davis, the prisoner who is scheduled to die by lethal injection at 7pm local time on Wednesday, would never be put to death unless there was "no doubt" about his guilt.
The Guardian article goes on to list 10 reasons why Troy Davis should not have been executed, based on "doubts." As Rachel Maddow noted last night, the convicted murderer of James Lee Byrd was executed in Texas last night, too. But no vigil was held to mark his passing, no last minute stay was requested from the Supreme Court, no articles were written in the Guardian or in other papers protesting his execution, no cable channels covered the act as if it were a funeral (MSNBC was practically draped in black crepe last night).

Should we have been more concerned about the death of Lawrence Russell Brewer? Ross Byrd, James Byrd's son, thought so.

I'm not trying to equate the two events, except to point out our own public ambivalence about crime and punishment. Somehow it seems easier to defend Troy Davis against execution for a crime so many are now so sure he didn't commit, than it is to protest the execution of a white supremacist like Lawrence Brewer for a crime so hideous we still don't want to think about it (there was forensic evidence that James Byrd was alive through the ordeal almost until he was decapitated by the ordeal). But that's the real problem with protesting executions: not that they are hard to protest, but that the situation itself is so complicated.

In the case of Troy Davis, many were proclaiming his innocence, based largely on reports that witnesses 22 years later had recanted their stories. But who, after 22 years, wouldn't reconsider what they knew then and whether or not they were accurate? One of the grave weaknesses of the criminal justice system is the reliance on eye-witnesses. But once the justice system has relied on those witnesses, under what conditions does it reconsider their testimony? When the witnesses change their minds? When, then do we ever decide a conviction is final, and the case is closed? Never? A system like that is no system at all.

On the other hand, if there is no system for review, no chance to correct errors, there is no justice. So the system has to have a stop; but that stop cannot be arbitrary.

I'm not a criminal lawyer, nor an expert on the laws and procedures surrounding death penalty cases. I don't know why some people are released from prison based on new evidence, and other people are executed in the face of new evidence. But the burden the death penalty puts on the "justice" of the criminal justice system, is shown by the Troy Davis case to be too heavy a burden to bear. We are warping justice out of any semblance of that goal when we murder people in the name of the state and "justice done."

The former warden of the Georgia Diagnostic prison was on MSNBC last night and said, from his experience overseeing executions in that prison, that executions are "pre-meditated murder." Those were his word. Some commentators on MSNBC last night were critical of the US Supreme Court in this case, especially as it wouldn't issue another stay of execution for Mr. Davis in a case he was clearly winning in the court of public opinion. But my ire was, and is, directed mainly at the Georgia Board of Pardons and Paroles, who could have granted clemency in this case, and refused to do so. The Supreme Court acted as I expected them to. The system acted, as best I can tell, as it has to (after 22 years, what witnesses might not change their minds, what jurors might not decide differently? Who in prison doesn't say they are innocent?).

There was an issue of ballistics evidence that even the Georgia Bureau of Investigation said was invalid evidence. I don't know why new evidence in this case never led to a new trial, but new trials based on new evidence are notoriously difficult, and must be, else criminal convictions would never be final. It is a matter of procedure. A judicial system must have procedures, otherwise it is merely an ad hoc arrangement responding to those with the greatest public sympathy at the time, or the loudest megaphone, or the mere whims of those on the various judicial benches. Although "ad hoc" seems to perfectly describe the systems in states like Georgia and Texas where a Board of Pardons and Paroles is expected to act as a dispenser of clemency. Funny, they never seem to think dispensing it is really such a good idea.

But the finality of a death sentence changes everything. And the system still doesn't recognize that it changes the situation enough that the system simply cannot sustain the burden of killing another human being in cold blood.

And that is the problem.


  1. Lawrence O'Donnell said tonight on 'The Last Word' that the only way to stop the next execution down the road that will appear to be unjust, as did Troy Davis', is to begin protest all executions right now. He's right.

  2. Indeed, to be against the death penalty is to be against all such executions, whether the prisoner is innocent or guilty. Raising doubts about individual guilt, as effective as it may be in individual cases, will not stop the death penalty, but at most multiply procedures instituted to give a greater and falser assurance that the executed must be guilty.

    I remember, while in law school, in the late 1970's,it was assumed that the death penalty had been effectively nullified by the Supreme Court because of the concern that discretionary proceedures led to discrimination against the poor and racial minorities. The result was an abandonment of discretionary procedures, and a resumption of execution--and, strangely, it was still the poor and racial minorities who disproportionately suffered.