Troy Davis will die tomorrow

… for a crime he quite possibly didn’t commit.

… for a crime he’s innocent of, as likely as not. (Wikipedia here; the views of former Reagan/Bush FBI Director William Sessions – the key word is “intolerable” – here).

Yes, this case raises questions about the death penalty, though not ones that a moral cretin like Rick Perry will pay any attention to. But would it really be better to lock an innocent man up for the rest of his life? The deeper problem is a criminal justice system where “due process” produces infinite delay but where the doctrine of “finality of judgment” makes it impossible to review in any forthright manner cases where the wrong guy get bagged for the crime.

The notion that a man can be executed – or kept in a cage forever – because his lawyers failed to prove his innocence (after a flawed, but procedurally correct, initial conviction) ought to outrage everyone with a sense of natural justice.

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:

23 thoughts on “Troy Davis will die tomorrow”

  1. Yup, it ought to. It doesn’t.

    This is one of the main reasons I’m so adverse to your reluctance/refusal to concede that the collateral damage of the phony war on drugs is so much worse than the hypothetical ills of a legalized, super marketed drug bacchanalia. Even if your most extreme fears come true, with tobacco-like marketing of drugs, it’s still better than the status quo, where our insanely draconian drug laws and sentencing structures are a huge part of the infrastructure for keeping capital punishment going. When you have multidecadal sentencing for drug trafficking, what else is left for homicide if not another homicide (absent Dick Cheney taking over and we start televising torture)?

    Reformers keep attacking death penalty laws without much success, with few realizing how much the death penalty is cemented in place by a superstructure of acceptance of the idea that even nonviolent people are dangerous felons who need to locked away (for selecting the wrong drug to peddle in the wrong era).

    If this outrages you, recognize the role that the drug war plays in it.

  2. I think you are right about this particular case, but I am more outraged by the murders that might be prevented if the death penalty for murder were quickly and consistently applied than the much smaller number of false positives.

  3. I am told that, in my own state (VA), all evidence in the case is destroyed after an execution. This actually strikes me as possibly a greater crime, in cases in which the convicted person is innocent, than the execution itself. Were I to be unjustly executed, I would be beside myself with anger; were I to be unjustly condemned to be remembered as a murderer for all time because the state thought covering its own ass was more important than the truth…well, contemplating it even in the abstract makes me furious. This policy is utterly insane.

  4. ZZ, leaving aside your disturbing lack of concern for the judicially murdered human beings you refer to as “false positives”, what are you talking about when you say:

    the murders that might be prevented if the death penalty for murder were quickly and consistently applied

    Surely you’d concede that “quickly” is a red herring there – unless you want to claim that there’s been a rash of murders committed by people imprisoned awaiting execution. So the work in your claim has to be done by the word “consistently” – by which I assume you mean something more like “readily”. Even there, you’re either claiming that a lot of murders are committed by people who’ve returned into society after serving their time (which surely would be a problem that could be addressed without executing anyone) or you are claiming that a sufficiently sanguinary judiciary would scare potential criminal straight.

    I’m not an expert, but I’m pretty sure that all of the available studies fail to support the idea that the death penalty has a significant deterrent effect on crime. Now, you could claim that a sufficiently freewheeling application might reveal a deterrent effect that was not achieved by a more limited death penalty. Even if such a (entirely unsupported) theory were correct, I shudder to think what levels of judicial bloodshed would be necessary to achieve a salutary effect when current levels aren’t enough to see even a tiny one.

  5. On ZZ’s calculus, Caiaphas is ahead of the game so long as the number of innocent people judicially sacrificed is lower than the number of other murders he has prevented.

  6. Ok, simple question: Does Rick Perry, as Governor of Texas, actually have the authority to prevent this execution?

    Agreed about your last line, add it to a long list of outrages about our legal system, such as the fact that, after acquittal, you’re not made whole by the government that just impoverished you.

    But, seriously, is there anything Rick Perry could legally do about this? I’m fairly sure, from what I’ve read about the way Texas law is set up on the subject, the answer is “no”.

  7. Brett,
    1. You’re changing the topic for no apparent reason. Any reason for this? (Or did you forget that Georgia is not Texas?)
    2. “Authority” is a weasel-word in this context. The Governor of Texas only has the legal authority to delay an execution by 30 days. But Rick Perry has staffed up the Texas independent agencies with his henchmen. The Texas Board of Paroles and Pardons (IIRC the name) has the authority to commute the sentence, and Perry has the power to tell them what to do. So, in any meaningful sense, the answer to your question is “yes.” This question is kind of like asking if the Prime Minister in a parliamentary country has any authority to promulgate a law. No s/he doesn’t, but s/he controls parliament, and therefore has plenty of power.

  8. Brett, perhaps you should look at what Perry did to the Texas Forensic Science Commission in the Willingham case to get your answer, if the Troy Davis case were in Texas and not Georgia.

  9. JMG,

    Thoughtful reply, but I would question the framing of this argument as an either or proposition. Either we continue with the war on drugs status quo or we move to an all drug bacchanalia. Isn’t there room for a thoughtful middle?

  10. Yes it would obviously be better to lock up an innocent man than to execute him. If the innocent man is alive but in jail, there is always the possibility of a future Governor, President, pardon board, etc. releasing him. If he’s dead, there’s no chance.

  11. Benny, I respond to what I perceive as a persistent note from Mark K, that he well understands the direct costs and stupidities of the drug war that he studies, but cannot support anything that gets to the heart of the matter because we will wind up with the (parade of horribles/drug bacchanalia). In his calculus, the real people being harmed today by the drug war are less important than the future people possibly harmed by Madison ave style dug marketing if we declared an end to the drug wars.

  12. People describe the death penalty as a method of granting closure to the aggrieved parties. Is there any proof that “closure” actually takes place?

  13. “Closure” is just one of our more ridiculous bullsh*t psychobabble concepts. Did a “positive psychologist” come up with it? In this case no one will gain “closure” because of the execution of Troy Davis. Not the family of Mark MacPhail, not the family of Troy Davis, not the people of my home state.

  14. Closure is basically equivalent to avenging the death of a human. It isn’t justice it is that basic gut instinct that most of use feel and some of us suppress with logic.

  15. Brett,

    Does Rick Perry, as Governor of Texas, actually have the authority to prevent this execution?

    Since this is a GA case, no.

    Here’s a question for you: If Perry had any authority to prevent this execution would he use it?

    Look, Perry effectively murdered Willingham and used his authority to cover up his crime. That is clear beyond a reasonable doubt. I’d say that anyone claiming to value liberty and oppose overarching government power ought to be more bothered by the Willingham execution than by some EPA rule. Libertarians, including you, seem to me to fail this simple test rather badly.

  16. Regarding closure, I agree with each respondent. I’m wondering if there’s any scientific data that proves that it exists.

  17. @ John Herbison

    The Roman Catholic Church has, both through the Pope and the Council of Bishops. Other than that, not so much.

    @ Dan

    I have a colleague who has studied the death penalty fairly extensively. I’ll ask him about the closure thing. The anecdotal evidence seems to suggest that survivor’s responses to executions are all over the map.

    I was struck by something Eugene Robinson said. He agreed with someone that there are crimes that deserve death: no other punishment seems appropriate. But he then pointed out that deserving death doesn’t mean we have to lower ourselves to that level. That becomes especially true if the price of executing those who deserve death is executing innocent people.

  18. Question: “But would it really be better to lock an innocent man up for the rest of his life?”

    Answer: Yes and Duh!

  19. I agree that it should offend any “sense of natural justice,” but the doctrine of finality is a legal concept, not a moral concept. Lawyers spend years at school learning to replace their “sense of natural justice” with respect for the instrumentality of the legal system. The system opposes endeavors like the Innocence Project, precisely because it calls prior verdicts into question, and thus raises questions about the fairness and justness of the system itself. For the system, the appearance of justice is far more important than actual justice.

Comments are closed.