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.