A little over four years ago, I posted this diary:
Q: What do you call it when a person kills another person, with full intent and premeditation?
A: Murder.
Q: What do you call it when the government kills an innocent man, with full intent and premeditation?
A: Read the diary to find out.
This, among other reasons, is why I oppose the death penalty on principle.
The pending execution of Troy Anthony Davis, scheduled to take place on July 17, is raising serious questions about his guilt — and about the Newt Gingrich-era federal law that has limited his appeals options and prevented him, say his supporters, from getting a fair shake.
Davis, 38, a former coach in the Savannah Police Athletic League who had signed up for the Marines, was convicted in the 1989 murder of Mark Allen MacPhail, a Savannah, Ga., police officer. MacPhail was off-duty when he was shot dead in a Savannah parking lot while responding to an assault. Davis was at the scene of the crime, and an acquaintance who was there with him accused Davis of being the shooter. Since his conviction in 1991, Davis has seen each of his state and federal appeals fail. But in the court of public opinion, Davis presents a compelling argument. Seven of the nine main witnesses whose testimony led to his conviction have since recanted. The murder weapon has never been found, and there is no physical evidence linking the crime to Davis, who has asserted his innocence throughout.
I don't know if Davis is truly innocent or not; I tend to suspect he is. But whether he is or isn't, how can we call this justice? He was accused of the murder by the man who other witnesses claim confessed to having actually committed the crime after Davis was convicted. But those witnesses' testimony cannot be heard in the Georgia courts, having been dismissed as "inadmissible hearsay." Two of the jurors now say that if they knew at the time of the trial what they know now, not only would they not have voted for the death penalty, but they wouldn't have even voted to convict Davis. The only actual evidence against Davis is the testimony of the nine witnesses that led to his conviction, but as the excerpt above shows, seven of them have since recanted or contradicted their testimony. Further, research shows that erroneous eyewitness identification leads to more wrongful convictions than any other factor in the American criminal justice system, so absent any evidence other than the testimony of witnesses, the majority of whom have since recanted or contradicted themselves, how can it be just to put Troy Davis to death?
Clearly part of the problem here is the Antiterrorism and Effective Death Penalty Act of 1996, which, among other things, severely restricted the ability of individuals sentenced to death to appeal their sentences. Among the restrictions, condemned prisoners have one year to file a writ of habeas corpus, no more. Further, federal judges have far less leeway in determining whether trial courts correctly interpreted the Constitution in all trial matters. In other words, all those procedural legal protections the appeals courts are supposed to enforce when the trial court screws up? Automatically? Even for people who can't afford a dream team of defense lawyers? Yeah, they're not really so applicable anymore. The Supreme Court has interpreted the AEDPA very narrowly, deferring to the "wisdom" of the legislative branch, with little regard to the wholesale trampling of the allegedly constitutionally guaranteed due process rights of affected prisoners -- no big surprise there. The AEDPA, by the way, was one of Newt Gingrich's favorite pieces of legislation. He lobbied hard for it, arguing frequently that "justice delayed is justice denied." And that's true -- but injustice accelerated is also injustice perpetuated.
And Davis is hardly a unique case. Since the Gregg v. Georgia decision that reinstituted the death penalty in the United States in 1976 after a short moratorium, 1087 prisoners have been put to death. (Editor's note: After last night, the number is now 1269.) I have little doubt that the vast majority of them were guilty of the crimes for which they were sentenced to death, but "the vast majority" isn't good enough. Since 1976, 118 prisoners who had been sentenced to death have been exonerated. (Editor's note: That number is now up to 138.) Even if we assume that all 1087 executed prisoners were guilty, that means that only 90.2% of the people sentenced to death in the United States since the Gregg decision were actually guilty of the crimes for which they were to be killed. What do you call it in the other 9.8% of cases, when the government killed innocent people, with full intent and premeditation?
And we can't assume that all 1087 executed prisoners were guilty. We can't assume it because it's almost certainly not true.
I then posted a list of eight cases where someone was executed for a crime likely committed by someone else. Included in that list was Cameron Todd Willingham; you may have heard his name here recently. He was convicted and sentenced to die on the basis of empirically false "scientific" testimony, and Texas Governor Rick Perry fired the people who were trying to present evidence of what really happened in his case -- God forbid that there be a reason not to execute an innocent man!
Later, I continued:
Is it not undeniably "cruel and unusual punishment" to execute an innocent?
Hell, even William Rehnquist, a big fan of the death penalty, wrote in his dissent in Furman v. Georgia, the case that banned the death penalty for a short while in this country prior to Gregg, that the infrequency with which the death penalty is imposed reinforces our moral values, that only imposing it for the most heinous crimes speaks to the quality of our enduring humanity. Is it not excessive, immoral, and heinous, then, to execute someone who not only are we not 100% certain is guilty of the grotesque crime for which he was convicted and sentenced to die, but who is most likely not guilty?
Clearly there are some who don't care. Consider the words of Sen. Jeremiah Denton (R-AL, 1981-1987):
Saying we should not have the death penalty because we may accidentally execute an innocent man is like saying that we should not have automobiles because some innocent people might be accidentally killed in them. Or we should not have trucking or we should not have aircraft, or we should not have elevators because we are going to have accidents.
There are going to be some mistakes committed. The question is, on balance, which way do we better promote the general welfare?
-- Source: The Death Penalty: An American History, by Stuart Banner, p. 304
So much for the sanctity of human life.
I concluded by calling for activism to try to help save Troy Davis' life, a task we succeeded at then but ultimately failed to do:
Do it because you don't like the answer to the second question I posed at the beginning of this diary:
Q: What do you call it when the government kills an innocent man, with full intent and premeditation?
A: Legally, it's an "accident."
There was more than enough evidence to doubt that Davis was guilty, certainly enough that anyone for whom life really is sacred had no business accepting that the death penalty was a worthy penalty. And if in the final analysis Troy Davis turns out to have been factually innocent of the crime for which he was just put to death last night, then the State of Georgia would have murdered an innocent man and let a guilty one get away scot free.
That's no accident. It's just cold-blooded murder.