Troy Davis, Lawrence Brewer and the Capital Punishment Ethics Train Wreck

At this point, nothing about the death penalty  in the United States makes any sense, logically or ethically, and that is true for all sides of the capital punishment debate. September 20 should be designated Capital Punishment Day in memory of the contradictions, absolutist pronouncements, convenient rationalizations and everything else that occurred in the years, days and hours before Troy Davis’s execution in Georgia. Then perhaps America as a society will devote one day a year to considering rationally and unemotionally how the death penalty should fit into its criminal justice system without having the discussion warped by the peculiarities of  individual cases. As it stands now, not only is capital punishment an ethics train wreck, the policy debate about it is an ethics train wreck. Everyone who even dips his toe into either becomes irresponsible, conflicted or intellectually dishonest.

Did you know that another inmate was executed yesterday? I didn’t, until this morning. In Texas, white supremacist gang member Lawrence Russell Brewer was executed Wednesday night for the horrific 1998 dragging death slaying of James Byrd Jr., a man from East Texas who had his head pulled off by a chain attached to a truck for the offense of being black. If death penalty opponents are serious and have any integrity, they needed to show it by protesting the execution of Brewer exactly as intensely as they opposed the death of Davis, but of course they did not. While Davis is the easiest case— a questionable conviction that looks more unjust as time goes by—Brewer is the most difficult. If capital punishment opponents can’t or won’t make the case that a Brewer shouldn’t be executed despite overwhelming evidence and no plausible doubts about his guilt, then they have no case. Yet if they protested Brewer’s execution, it sure was quiet.

We all know why, don’t we? Most of those who say they oppose capital punishment either have a contradictory opinion when the person being killed is a murderous racist, or don’t have the courage to take a public stand in support of such a man. In the case of Brewer, the lack of logic and integrity goes deeper.  Byrd’s murder was used by Democrats as the impetus for Texas hate crime legislation which would mandate tougher sentences for crimes committed on the basis of bigotry. During the 2000 presidential campaign, the Democratic Party created unconscionable commercials in which Byrd’s daughter (who now says she opposes the death penalty even for Brewer), accused George W. Bush of supporting racism because he opposed the hate crimes law that would supposedly punish people like the men who tortured and murdered her father. But what is “enhanced punishment” for a vicious hate murder, if not the death penalty? The vast majority of murderers in the U.S. get long prison terms. The Constitution forbids long prison terms that include abuse. “Enhanced punishment” can only mean death.

None of this should be relevant to serious and honest death penalty opponents, which is why it is interesting, and damning, that Amnesty International, to name just one, focused its public statements on the Davis case, rather than on Brewer. The group says that the death penalty is a human rights violation, which, if true, is just as true for despicable, racist, blood-thirsty, torturing killers like Brewer (who boasted about what he did to Byrd) as it is for possibly innocent death row inmates like Davis. Why did the Amnesty International spokeswoman I heard today keep mentioning his innocence? She did it because it confuses an already complex issue, and allows them to duck having to explain that its wrong to execute monsters who drag human beings behind trucks until their heads pop off, that’s why. Nobody disagrees that the death penalty is wrong when it results in the death of an innocent man, but that’s not Amnesty International’s real argument—it’s just a much easier one to sell. What about the death penalty for killers like Lawrence Russell Brewer, or the Petit home invaders, who raped a mother and her two daughters, beat them to death and set them on fire, for the fun of it? No, thanks….Amnesty International would rather use Davis to get the death penalty abolished, and pretend cases like the others, where the crimes were depraved and the proof of guilt beyond question, don’t exist. Yet these are the cases where the death penalty is both just and important.

As for the Davis case, the media has done its usual terrible job explaining  the argument for upholding the jury’s verdict. The justice system has rules of procedure and evidence, all developed for good reasons over hundreds of years. There are procedures for appeal and review, and the ultimate fail-safe device, commutation or clemency by the elected executive. Witnesses testify under oath. To permit a formal court proceeding’s results to be informally undermined by unchallenged evidence, unsworn testimony and witnesses changing their stories after the trial would threaten the entire justice system. Such techniques would not only be used in death penalty cases. Even if Davis had been spared execution, he would have still been in prison—according to his advocates, unjustly. But he received a fair trial, a jury found him guilty beyond a reasonable doubt, the judge that reviewed the case at the request of the Supreme Court could not say that the verdict was not supported by the evidence. That is the system. The flaws, if there are flaws, in Davis’s conviction need to be addressed by that system, using the standards established by that system.

The fact that witnesses who testified against Davis at his trial changed their stories after heavy pressure from Davis’s defenders (not his lawyers, which would be witness tampering) cannot be dispositive. They may have been having second thoughts because of the approaching execution, but the fact is that they swore under oath to testimony that risked sending a man to death. If their testimony wasn’t true when they swore to it, how dare they? Coming back after the verdict and saying “never mind” is too simple and without accountability; in fact, I think it should trigger an automatic prosecution for perjury. The judge who reviewed the case determined that they were less credible now than at the trial. I think that’s a reasonable conclusion.

Nevertheless, Davis should not have been executed, and the system has a means of saving him designed for such circumstances. While he was duly found guilty beyond a reasonable doubt to a sufficient extent that he should remain in jail, there have been enough doubts raised that it seems clear he was not found guilty to the degree of certainty our nation must require before taking a citizen’s life.

The fail-safe defense against miscarriages of justice, including wrongful executions, rests with the President of the United States. President George W. Bush could have commuted Davis’s sentence, and should have. In 2011, it was up to President Barack Obama. Our system leaves it to him to step in when the rest of the justice system cannot fix a problem; it was his responsibility. He chose not to do anything, and that, in the end, was why Troy Davis was executed. The system could have worked exactly as it was designed to. The President made the final determination that Troy Davis deserved to die.

28 thoughts on “Troy Davis, Lawrence Brewer and the Capital Punishment Ethics Train Wreck

  1. I do agree with you about Obama on this one. Seven out of eight of the witnesses say that they gave false testimony due to threats that would cause a state of duress. Those are my words and not theirs. People will say or do anything under a state of duress. It’s the primary tool that evil dictators like Hitler use. Expecting that individuals will do the moral thing, such as telling the truth under oath, despite a state of duress is unreasonable.

    I don’t know what the answer to this is and I suspect that there isn’t a simple one. But, the fact that law enforcement in Savanna would use serious threats to obtain testimony is extremely disturbing.

    Personally I do chose to believe the witnesses about that.

    • There is simply no way to tell. It’s easy to blame the police. Threats to do what, exactly? If someone is going to recant sworn testimony, they had better have names and details. Nevertheless, they are unreliable either way, and it should have been enough for the President to step in, as he is empowered to do, and commute the sentence to life.

  2. Lately there have been a number of prosecutors who are or are about to have to deal with their illegal tactics in getting people convicted. I’ve been saving the articles so maybe it’s time to put them all together on a web page. Let’s not forget judges either, one of the latest scandals “Pennsylvania.” One convicted innocent boy even committed suicide.
    BTW, what I didn’t know is that therapists are brought in to deal with the prison guards and others who were involved in state sanctioned murder. The former Georgia warden suffers a great deal for those he helped kill even though it was his job.

    • That makes sense, though by no interpretation can it be “state sanctioned” murder, which is by definition a crime. , any more than it can be “wrongful imprisonment.” Judges can’t be held accountable for convictions unless there is affirmative corruption and incompetence. Prosecutors can be and should, but usually aren’t.

      • The judge in Pennsylvania is in prison and yes, there was affirmative corruption. Can’t say incompetence because it was a money making scheme.
        I, personally, believe the death penalty is state sanctioned murder. It isn’t intended to be a legal definition. I also believe abortion is murder but do have reservations related to incest, rape, etc.
        I’ll go over all my saved articles re: prosecutors and get back to you when they’re compiled.

  3. The victim’s son in the Brewer case didn’t want the death penalty.

    “You can’t fight murder with murder,” Ross Byrd, 32, told Reuters late Tuesday, the night before Wednesday’s scheduled execution of Lawrence Russell Brewer for one of the most notorious hate crimes in modern times.
    “Life in prison would have been fine. I know he can’t hurt my daddy anymore. I wish the state would take in mind that this isn’t what we want.”

    BTW, there was a civil crowd both pro and against the death penalty at the Brewer execution.

    • Yes, I saw that. Not much going on, though…certainly no Pope and no Amnesty International Every execution draws some die-hard protesters, but I could,’t find any editorials arguing for mercy. I salute Byrd’s son for his integrity and forgiveness, but he’s not killing he father’s killer, society is. And the death is for the benefit of society, not the Byrd family.

  4. What about people who oppose the death penalty for different reasons?
    I oppose it not because I consider it wrong in the absolute, but because too many people like Troy Davis fall through the cracks because of arrogance/incompetence/prejudice in the justice system. It’s one thing to say that a falsely accused man has a chance to one day clear his name or even return to society, but another to say that a man will die before he ever gets to. Death is final, and I believe the evidence to support it must be too. Until we as a society can say that the justice system always works, I will oppose the death penalty because of when it doesn’t.

    • What does Troy Davis falling through the cracks—if he did, for I wouldn’t be shocked if he were guilty—have to do with Lawrence Brewer? Why shouldn’t Brewer be executed jusy because mistakes might be made in less slam-dunk prosecutions? That makes no sense. You’re punishing the system because it not perfect, even though you acknowledge there are times when it does work, which can be easily identified? (Ted Bundy was guilty as hell, deserved to die, and did, and Hooray.)

      Requiring 100% perfection in any system is unreasonable.

      • Actually, Chase’s logic is more along the lines of the people who were ok with Casey Anthony being acquitted; if you believe that it’s better to have a system where the guilty occasionally go free than a system where both guilty and innocent are convicted, than it’s not a far step to believing that a system which executes no one (but still imprisons for life the most heinous criminals) is better than one that ends up killing both guilty and innocent alike.

        • It’s a false choice, though, and we don’t have to make it. If a murderer is caught on surveillance video raping, killing and eating six children, a handicapped old man and a dog, and we find the remains in his stomach, we can and should execute him. Banning the death penalty is unnecessary.

          • I have nothing against executing someone who is guilty of murder beyond ALL doubt, but for anyone where there may be the slightest doubt then I am against it. But this would require a distiction between ‘beyond ALL doubt’ and ‘beyond reasonable doubt’ and this would require prosecuters and judges to admit to such a distinction and that some of the murderers they want executed may possibly be not guilty. And in the cases they are involved in so many are unwilling to admit that there is the slightest doubt and they may have got it wrong.
            So unless and until someone can find a system where only those who we are 100% sure about are executed then I will be against the death penalty.

            • It’s just not that hard. The situation where there is no doubt—I think 100% is an impossible and unnecessary standard—does occur and has occurred. John Wilkes Booth, for example. And it doesn’t matter if such a defendant is executed once a millennium. You need the death penalty.

            • But this would require a distiction between ‘beyond ALL doubt’ and ‘beyond reasonable doubt’ and this would require prosecuters and judges to admit to such a distinction and that some of the murderers they want executed may possibly be not guilty.

              Why would “beyond all doubt” be necessary?

              Are police officers (let alone civilians) required to know beyond all doubt that their lives or other’s lives are unjustly threatened before they shoot someone?

              Are soldiers required to know beyond all doubt that no non-combatants will be harmed before attacking an enemy position?

              Why should executions be different? An innocent person executed is no deader than an innocent person mistakenly shot to death, or turned into a charred corpse by a bomb meant for hostile enemy forces.

              As far as I know, there is no other situation, involving the use of lethal force, where the burden of proof is “beyond all doubt”.

  5. Despite living only an hour and a half or so away from Jasper, TX, where James Byrd was killed (the community college where my wife works has a branch campus there), I didn’t know Brewer was being executed until after it had happened. Meanwhile, we were inundated with news on the Davis case.

    But it strikes me that this is problematic only if we take an absolutist position on capital punishment. If the problem is the death penalty per se, then the two cases are indeed in some way equivalent, and ducking the Brewer execution to concentrate on Davis is at least evasive. But I suspect that there are a fair number of people whose position is pretty much like mine: that the problem with capital punishment isn’t intrinsic, but rather linked to the fallibility of the system in certain cases. That is, if the crime is egregious and guilt is certain, then so be it. Did Lawrence Brewer deserve to be executed? Yes. Yes, he did. Did Troy Davis? Perhaps. And, to me, any level of equivocation—even the “shadow of a doubt”—ought to prevent a civilized society from killing one of its own. So I freely grant that my responses to the two cases were different: because I have adopted a situational rather than absolutist stand on this issue.

    FWIW, my take on the Davis case is here. I confess that I didn’t contemplate the notion of a Presidential intervention. I should have.

  6. The pardon power of the President extends only to offenses cognizable under federal law. However, the governors of most of the 50 states have the power to grant pardons or reprieves for offenses under state criminal law.

  7. May I add that it is far more significant that Gregory, a black man, protested the execution of this unrepentant white supremist and perpetrator of one of the most horrific hate crimes in modern history. Of all the voices who sounded this week, his was the loudest.

  8. I am an opponent of the death penalty and I like to think that I have integrity. I therefore will put myself on the record as opposing the execution of Lawrence Russell Brewer. I believe life imprisonment would have been the proper punishment for him.

  9. While he was duly found guilty beyond a reasonable doubt to a sufficient extent that he should remain in jail, there have been enough doubts raised that it seems clear he was not found guilty to the degree of certainty our nation must require before taking a citizen’s life.

    And what degree of certainty is that?

    Just this year, police in Long Beach, California took the life of a person who turned out to be armed with a nozzle. Were they convinced beyond a shadow of a doubt that the dude was armed with a pistol, much less about to fire the pistol at them?

    Twelve years ago, the NYPD took the life of a man who turned out to be armed with a wallet. Were they convinced beyond a shadow of a doubt that the dude was armed with a pistol, much less about to fire the pistol at them?

    In the 1940’s, the U.S. military took the lives of thousands of non-combatants. Were they convinced beyond a shadow of a doubt that there were absolutely no non-combatants in the line of fire or inrange of the bombs they would drop from the sky?

    Historically, our government never required that killing someone or a bunch of people be justified “beyond a shadow of a doubt” before going ahead with the killing. Dead is dead, whether by lethal injection, bullet, or an uncontrolled nuclear fission reaction.

    • All your examples are exigencies of the moment, not results of a deliberative and formal process. A better example for your point is the decision to go to war when it is deemed that there is an imminent threat to national security—one of the Bush Doctrines. Opponents say that that absolute certainty is required, which I believe is suicidal. The US should not have to wait to be attacked by a nuclear missile. But what kind of certainty short of absolute certainty is enough?

      • All your examples are exigencies of the moment, not results of a deliberative and formal process.

        Indeed, which is why in the deliberate, formal process, the standard is beyond a reasonable doubt.

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