September 21, 2011: Dead Certainty

I’ve linked a couple different times to my post on Steve Earle, Dead Man Walking, and the death penalty; I certainly still feel, as I wrote there, that the most (and perhaps to me the only) understandable support for the death penalty comes from an emotional place where people are responding to (whether actually or hypothetically) brutal crimes committed against those they love. Such a place is not, to reiterate one of that post’s ultimate points, an appropriate one from which to begin making or assessing legal policies; but it’s also fair to admit that, whatever our ideals about justice or the law, no one doing such making or assessing of laws does so in a vacuum, without engaging in some form with human emotions and perspectives. So when it comes to those criminals whose violent and brutal crimes are clearly beyond dispute, for whom the question is one of sentencing rather than of guilt or innocence, I can again understand—even if I still disagree with—those for whom the death penalty feels appropriate.

The problem, though, is that in many if not most death penalty cases, the question of guilt or innocence is less than crystal clear. The case of Cameron Willingham in Texas has drawn a great deal of recent attention, since Texas governor and now presidential candidate Rick Perry responded to some evidentiary and scientific doubts that were raised about Willingham’s guilt (and even about whether an actual crime had been committed) by disbanding the commission investigating those questions and overtly ramming through Willingham’s execution despite those growing doubts. But just as troubling, and entirely ongoing, is the case of Troy Davis, a Georgia man whose appeal for clemency was just rejected by the Georgia State Board of Pardons and Paroles; as the post at the first link highlights, the case about Davis was based entirely on eyewitness testimony, and seven of the nine such testifiers have since recanted their testimony as (they argue) coerced and bullied by the police. Even if Davis did in fact kill the policeman for whose murder he was convicted, it seems impossible for any reasonable person to argue, under these circumstances, that the current case against him is certain enough to merit the final and irreversible punishment that is the death penalty.

And that’s really the ultimate issue here, for me, above and beyond any of the other objections that I could and on many occasions have raised against the death penalty. Precisely because the legal and justice systems are created and populated by humans, they have their share of errors—we all know the stories of innocent men and women released from prison after decades, of folks like “Hurricane” Carter and the Scottsboro boys and many others besides. As horrible as those stories are, though, they don’t end with prison, at least not necessarily (some of the Scottsboro boys did in fact die in prison), and so they include the possibility of wrongs being righted, of hope being restored, of genuine justice being, belatedly but not impossibly, done. When injustices are done in death penalty cases, though—and again, how can they not sometimes be, with human beings still doing all the work?—the very nature of the punishment makes such restitution, such righting of wrongs, impossible, and so to my mind guarantees that innocent people will sometimes be put to death. Davis again might or might not be one such (although very well-informed and hard-line voices, including former FBI director William Sessions, have argued for his innocence), but the responses and procedures in his case certainly make it that much more likely, even inevitable, that more innocent men and women will be executed.

At the end of the day, I’m dead certain about only one thing in all this: the death penalty is far closer to some of the worst aspects of American history and identity than to our highest ideals and possibilities. The Troy Davis case has only further convinced me that we can and must do better than this. More tomorrow,

Ben

PS. Three links to start with:

1)      A brief blog post that collects (in links) many good starting points for the Davis case and the issues surrounding it: http://www.lawyersgunsmoneyblog.com/2011/09/troy-davis-to-be-executed

2)      The Sessions op-ed: http://www.ajc.com/opinion/should-davis-be-executed-1181530.html

3)      A hugely powerful piece that brings together the death penalty and family/kids in a very different way: http://www.theatlantic.com/national/archive/2011/09/explaining-the-death-penalty-to-my-children/245020/

4)      OPEN: What do you think?