Troy Davis, capital punishment and Justice Scalia

If Troy Davis is executed in Georgia tonight for a murder that many people believe he didn't commit, one person who will be feeling quietly vindicated is Supreme Court Justice Antonin Scalia. When the Court decided, in 2009, to refer the case back to a federal district court for further consideration, Scalia was blistering, almost contemptuous, in his dissent.

The case was worthless, he argued. The federal courts were powerless to intervene, and even if they did the decision that Davis deserved to die was unlikely to be reversed. The original trial was "untainted by constitutional defect." The facts had been reviewed exhaustively - and "every judicial and executive body that has examined the petitioner's stale claim of innocence has been unpersuaded." His claim was "a sure loser", and by granting him a stay of execution the Supreme Court was embarking on "a fool's errand". The only outcome would be unnecessary further delay to the execution of the state's "lawful criminal judgment".

And thus it has proved.

Scalia's dissenting opinion (pdf here) caused a stir at the time both for its unrepetentent tone (typical of the man) and for its implicit assumption of Davis's guilt. It was scathing about the "allegedly new" evidence that his lawyers had put forward in an effort to establish his innocence (or "innocence", to use Scalia's scare quotes). One passage in particular infuriated people who can imagine few greater legal outrages than the deliberate execution of an innocent man:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

That's right. It's not unconstitutional to execute an innocent man. It's just, well, not very nice. What matters constitutionally is procedural correctness, adherence to law and precedent, that the process of justice be fair and open and conducted according to clear principles. And if it leads sometimes to an anomalous result, such as the death of an innocent man, too bad. It's better than anarchy, or the uncertainty that would arrise if judges started making decisions based on personal feeling or what they had for breakfast.

Scalia's remarks shocked many, including some of his fellow justices, but it probably represented an accurate statement of the law. The (self-)celebrated Alan Dershowitz took the words to their logical conclusion:

If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: "Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she's dead, and as for you, Mr. Innocent Defendant, you're dead, too, since there is no constitutional right not to be executed merely because you're innocent.

In the real world, such a Kafkaesque denouement is most unlikely (one hopes). But the modern annals of capital punishment in the United States yield cases almost as striking. Take Jesse Dewayne Jacobs, who was put to death in Texas in 1995 even though his innocence widely acknowledged to the extent that another person had subsequently been convicted for the same murder. The victim was killed by a single bullet which they couldn't both have fired.

As recently as last week, Steven Woods was executed (also in Texas) for a double murder which someone else committed. Under Texas law, it is sufficient that he was present at the scene of the crime. Somewhat surprisingly, his co-accused, who confessed to the killings, is serving life imprisonment. "You're not about to witness an execution. You are about to witness a murder," Woods said before he was injected.

These are both troubling cases, though they received far less international publicity than Troy Davis's. As regards Davis himself, the evidence that he shot a police officer is circumstantial at best. Most of the witnesses at the trial have retracted their testimony, some claiming duress, and there is evidence pointing to another man - who originally fingered Davis as the killer - as being the true culprit. At the very least, there would seem to be reasonable doubt as to Davis's guilt, however clear-cut it may have seemed at the time of the original trial.

I find it impossible to separate the case for clemency in this one case from the argument against capital punishment in principle. Once you start arguing that Troy Davis should not be executed because of doubts about his guilt, you are implicitly accepting the state's right to take life under any circumstances. And if you conceed such a right, then you have to accept that the final decision will always be made by human beings, that human beings are fallible, and that therefore mistakes might be made. Mistakes are always a possibility. And capital punishment is irreversible. One of the strongest arguments against the death penalty has always been that mistakes can never be corrected.

The New York Times described the final decison of Georgia's Parole Board to refuse clemency as "a grievous wrong" and "a tragic miscarriage of justice". And so it is. But I don't find it plausible that members of the Parole Board, or of the appeal courts that heard Davis's many pleas for a retrial, actually want to execute an innocent man on purely procedural grounds. They at least must be fairly satisfied that he is guilty.

In any system of laws, someone has to make the imponderable decision as to whether to set aside a conviction or to exercise the prerogative of mercy. And it cannot be the New York Times, or the Guardian, or Amnesty International, or Desmond Tutu, or even the Pope. And it cannot be made on the basis of how many signatures a condemned man has been able to collect on his behalf, how many news bulletins have been devoted to the case, or how many tee-shirt wearing protesters come out to demand a that the decision of the courts be overturned.

Justice demands that such decisions are made by impartial, independent, contemplative individuals, acting honestly on society's behalf, able to take full and dispassionate account of all the facts. Sometimes, their conclusions will not meet with universal approval. But the law must be allowed to take its course. And if the result is outrageous, the only remedy is to change the law.

To that extent at least, Justice Scalia was right.

In the United States, from time to time they execute an innocent man to encourage the others.


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