Sep 15, 2011

Troy Davis & bad agruments against the death penalty

Troy Davis is scheduled to die next week, and probably will.

The board that could grant him clemency has denied it before, and this is Davis' fourth time facing execution by the state of Georgia.

The Supreme Court declined to hear his case in March. In August, a federal judge rejected Davis' claims of innocence, ruling he hadn't proved that he didn't kill Mark Allen MacPhail, off-duty officer shot to death in Savannah in 1989. There have been several stays of execution, but now it looks like the state really will kill Davis, and last-minute, final-days efforts to save him are mounting up, apparently futilely.

More than 3,000 religious leaders have signed a petition on his behalf, for example. This is a lot more than normal in a death penalty case. It doesn't seem like it will matter.

I'm more familiar with Davis' case than I am with others like it,* and I hope they don't kill him next week. I hope he gets clemency, that someone on the board has last-minute second thoughts. Maybe one of the names of the 3,000 clergy opposing the execution will give a board member pause.

I'm opposed to the execution but have actually been really uncomfortable with the movement pushing for clemency.

Consistently, the argument the don't-kill-Troy-Davis people have been making is that he's innocent. The web site declares "INNOCENCE MATTERS!," and "An Innocent Man Facing Execution in Georgia." If you ask why he shouldn't be killed, those defending Davis respond with details of the case: how many witnesses there were, who was reliable, extenuating circumstances mitigating certain testimonies, and how many witnesses have since recanted.

What this does is affirm the death penalty.

The arguments in defense of this man's life accede that if he's guilty, he should be killed.

They accept the death penalty in principle, objecting only in this case because of particulars. In the process of making a particular defense, though, they have, it seems to me, backed the idea of state executions. The arguments make it so it seems obvious that the state should put certain people to death -- like, of course the state should kill guilty people, and there's nothing wrong with the death penalty per se, it's just in this case ... technical detail, technical detail, technical detail.

The argument is:
If someone is not innocent, they should be killed.
Troy Davis is innocent.
Therefore, he should not be killed.

There are real problems with that. That argument, it seems to me, really makes the death penalty stronger.

Obviously, this is politics, and certain principled arguments are just non-starters. "Even if he's guilty, he shouldn't be put to death" wouldn't have gotten very far. A campaign to overturn the death penalty wouldn't have likely been successful, and wouldn't have saved Davis.

There are arguments, though, that work in particular cases without granting the rightness of state executions. Reasonable doubt, for example. The limits of what we can know and imperfect knowledge and the finality of executions. The fact that it's possible that mistakes were made, and death is irreversible.

These are the arguments that worked in Illinois.

These are arguments that might work with people whose political philosophy involves distrusting government and limiting the authority of the state. This would be a way to oppose Davis' execution without endorsing the death penalty in principle or supporting the executions of other inmates.

It also even might work better in the particular case, as a defense of Davis, since it wouldn't ask each individual to evaluate all the evidence and make a definitive decision about what the evidence says.

The "Davis is innocent" argument asks individuals to imagine themselves in the place of judge and jury, instead of asking people to look within themselves and find just a little bit of doubt, a little bit of distrust for the government, a little tiny shred of caution.

Rhetorically, they've made the defense responsible for the burden of proof, instead of hitting repeatedly on the theme of doubt. The argument could have been built all on the word "maybe." Maybe he did it -- maybe. Is that definitive enough for death? There are questions ... isn't that enough to warrant caution?

There argument could have been:
If there are questions, someone shouldn't be executed.
There are questions in the Troy Davis case.
Davis should not be killed.

This is an issue because it's not clear to me that Davis didn't do it. It's not obvious to me that he's innocent. This means I find the arguments on Davis' behalf unconvincing, and I'm already opposed to his execution. If you can't convince me, how are you going to convince the majority of Georgians who support the death penalty?

It might have been possible, though, to get Georgians to accept that there are questions. The argument could have been framed to focus on those questions. Instead, those rallying to oppose the pending execution have framed the argument in a way that leaves most supporting Davis' death, since it's not clear beyond a reasonable doubt that he didn't do it.

Now, maybe there wasn't any argument that could have saved Davis. The politics in Georgia being what they are. Trying to stop executions in Southern states is a St. Jude sort of enterprise. I really hope, too, that one of these last ditch efforts that seem to me to be so futile will actually work.

I wish the logic of the defense of life had been better though. I wish the argument had been set up to make people uncomfortable with the execution, instead of just me being uncomfortable with the argument.

*In the cases I covered as a crime reporter, no one was sentenced to death. Juries in my area had so consistently not voted for execution that prosecutors had mostly stopped seeking the death penalty.

In one case, for example, prosecutors sought the death penalty for a man convicted of beating his girlfriend's two little children to death with a tire iron. He had confessed twice, once on the phone with 911 and again with detectives. He was arrested with the kids' blood all over him. He had said he deserved to die for what he had done. One woman on the jury held out, though, refusing to sentence him to execution, and after days of deadlock, the jury settled on life in prison without the possibility of parole.

This effectively ended the death penalty in that county.

There are still several death penalty cases that I wrote about that haven't yet gone to trial.