Another take on Troy Davis

James is right to invoke Sir Humphrey’s Syllogism to explain the enthusiasm of some officials and some victims’ families for convicting and executing the innocent.

But Thomas Jefferson also had a relevant comment: “I tremble for my country when I remember that God is just, and that His justice cannot sleep forever.”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

16 thoughts on “Another take on Troy Davis”

  1. So, to all the lawyers who read this, would the sky really have fallen if the SCt had just stopped the thing? I know there are all kinds of rules about appeals, but why is there no case in equity (a concept that was mentioned in school only vaguely), just on the basis of insufficient evidence? I thought equity was often an issue, even if it is a more squishy concept and lawyers don’t like it?

    Thing is, I don’t have time to dive into the details, and all it says in the paper is that the reviewing federal judge didn’t believe the recantations. But shouldn’t the question have been, was there sufficient evidence for a reasonable jury to convict? *Was* that the question?

    Because this seems like quite a disgrace, and there were our best and brightest supposedly watching the store. What gives?

  2. I suppose it will turn out that it is because of some federal statute limiting habeus corpus cases, passed during the 80s or 90s.

    But is that really the end of it? There was nothing anyone not on that Georgia board could do?

  3. Regarding the president, see Article II Clause I:

    The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

    In other words, he cannot pardon nor can he reprieve someone convicted of committing an offense against Georgia.

  4. I’m not a lawyer, but isn’t the worry about opening the door for retrials to anyone who can show their conviction was based on evidence that has come into doubt? Couldn’t just about every convicted criminal find some of that?

    In contrast, requiring something like “convincing new evidence of innocence” would be a higher and more reasonable bar for the court system. Then leave it to those with the power to pardon to take the time to reevaluate cases like Davis’, where it’s pretty clear a jury would go the other way given the new evidence.

  5. Rolf, you raise a valid concern but hardly a novel one. The courts are not entirely unacquainted with the notion that convicted criminals might be inclined to appeal on the weakest or most transparently concocted of bases, nor with the need to weigh that phenomenon against the certainty that some of the appeals being lodged are entirely worthy.

  6. I find it amazing that so many people express surprise and confussion that justice is not done. It’s Georgia! The guy is black! What don’t people understand here?

  7. It’s not just Georgia. We live in a country where the powerful murder for political reasons. Only the fact that there were no direct collateral casualties and that it was — for a change — a truly surgical strike differentiates it from the bombs the same people approve of dropping on other frequently innocent people in Afghanistan.

    The death penalty puts us in such charming company as China, North Korea, Iran and Yemen. Must be something that all can agree on. I find myself disturbed that so many in government here act in lockstep with such brutal dictatorships. They’re all barbarians and any pretense that the United States has some exceptional message for the world is drowned out by the company that our obliviously vengeful politicians keeps.

  8. Randy Paul: thanks for posting. That made me feel ever so slightly better about the president. (And it has nothing to do with his own race. I expect any president to try to stop a wrongful execution.)

    On a practical level, there must be something Georgia wants, that could have made room for a deal. Maybe someone tried to make that happen and it didn’t.

    But I was really asking a legal question. Is it the case that the Justices were truly without *any* legal recourse? (Whether or not they wanted to intervene further is another question.) Is Scalia right when he says that being innocent — and in the US, a lack of sufficient evidence ought to be the same thing — doesn’t legally matter? Or did that one federal judge think there was enough evidence? And is that the end of it? Come on, I know a lot of lawyers read this.

  9. Obama is probably gun shy because of the flak he took from saying that the police acted stupidly in arresting Henry Louis Gates. That statement should have been no more controversial than would be the obvious statement that Georgia should not have killed a man after seven eyewitnesses recanted, but it was, and Obama is not again going to criticize the police for an injustice to a black man, especially now with the election only a little more than a year away. It’s not as if the President of the United States should try to exercise moral authority.

  10. s Scalia right when he says that being innocent — and in the US, a lack of sufficient evidence ought to be the same thing — doesn’t legally matter.

    IANAL, but I believe that the US (like the English) system give one trail and one appeal as a matter of right, and further appeals are always discretionily granted by the appeals court, so tha nswer is yes.

    In other words, I strongly support Radley Balko’s idea of an innocence office equivalent to a prosecutor, who has the ability to get a new trial by-right when he judges it warranted. And also, the person most to blame here is the governor of Georgia, not the court system–he has an absolute right to pardon or commute sentences from a Georgia court.

  11. SamChevre,

    IIRC, one case that was a major catalyst for ending the death penalty in the UK was the John Christie/Timothy Evans case. Christie testified against Evans in the murder of Evans’ wife & daughter. Evans was convicted and executed. Later it was discovered that Christie had murdered several women in and hidden their bodies in a false wall in his apartment. He later confessed to the murder of Evans’ wife and daughter. He was also executed. Evans was pardoned and his body reburied in consecrated ground.

  12. Correction: I just reread my own comment and to my dismay I see I typed the word “justice” when I meant to type “injustice”.
    That’s very different. Perhaps I should refrain from commenting so late at night.

  13. Is it too much to ask that you post bios of your contributors? Do you keep this data off your site for philosophical reasons, or is it that you assume readers can google as easily as you can post?

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