Mercy, justice, and Troy Davis

If he’s innocent, as seems to be the case, then what’s the point of commuting his sentence to life without parole? If he doesn’t belong on Death Row, he doesn’t belong on an ordinary cellblock either.

Of course Troy Davis’s mother is happy that the Georgia Board of Pardons and Paroles voted to stay Davis’s execution, just a day before he was scheduled to die for a murder he didn’t commit. And I confess to being very pleasantly surprised; it seemed to me overwhelmingly likely that Davis was a goner, and that AEDPA was about to claim its first demonstrably innocent victim.

But apparently (I’m just going on newspaper accounts) the Board’s power is limited to commuting his sentence to life without parole. That outcome would make no sense whatsoever.

If Davis is innocent, then he no more belongs on an ordiary cellblock than he does on Death Row. If he’s guilty, then a commutation seems unjustified. Whoever it was that harrassed a homeless man to try to make him give up a can of beer and then shot the off-duty policy officer who tried to come to the rescue, it’s hard to see what that person is any less deserving of death than any other capital convict. (The Libby commutation had something of the same flavor; if Libby was guilty as charged, the sentence was by no means excessive; if he was the victim of a rogue prosecutor who never should have been tried in the first place, why leave is conviction in place?)

Troy Davis may well be the fit object of mercy. But what he’s asking for is justice: a fair hearing for his claim that he never committed the crime of which he was convicted. The Board of Pardons and Clemency has no particular qualifications to conduct that inquiry, which is properly a matter for the courts. The courthouse door should never be shut to the innocent victim of a miscarriage of justice, no matter how old his conviction or how many mistakes his lawyers made along the way.

Footnote The most disgusting comment in the story comes from the widow of the slain police officer.

I believe they are setting a precedent for all criminals that it is perfectly fine to kill a cop and get away with it. It’s tearing us up.

I can sympathize with Joan McPhail’s grief. And I consider avenging the dead, and thus satisfying a natural and reasonable demand of those who loved them, as among the legitimate functions of the criminal law. (If the state forbids private vengeance, as it must, then it assumes the responsibility to provide vengeance publicly.)

But given the evidence that it wasn’t Davis, but rather the chief witness against him, who killed a cop and got away with it, Ms. McPhail’s demand that he be executed anyway is no less murderous than was the original shooting.

The notion that punishing the innocent is a close substitute for punishing the guilty has no logical basis, but many crime victims, egged on by prosectors and the professional “victim advocates” who work for them, seem to embrace it. They ought instead to insist that they want the guilty person punished, even if that requires the exoneration of the person they thought to be guilty. Hard? Yes. But grief is no excuse for acting like a petulant child, hitting out at random, rather than a grown-up.

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: