Georgia carried out the execution we discussed the other day; I've been thinking about it a great deal. The Atlantic has a long piece on the philosophical underpinnings of the death penalty in America, which may be worth reading.
There is no compelling reason to believe that Troy Davis was innocent, as is being attested so strongly by so many today. He fled Savannah on the date of the crime; and the gun he allegedly used to shoot off-duty officer McPhail was supposed to be the same gun he had used to shoot another man in the face earlier that night. His membership in the crowd of people who might shoot someone in the face -- that is, his gangsterism -- is not in dispute. He begged the jury, on conviction, for "another chance," which is not suggestive of innocence. Seven of the nine eye-witnesses recanted their testimony after the trial; but on the other hand, it is to their benefit in street culture to say they were pressured by police to testify versus standing up for having helped the law convict. One of the non-recanting witnesses allegedly boasts about having been the real killer; but again, in the culture we're talking about, such boasting has a demonstrable benefit. It raises your stature. Since there's no danger of prosecution -- the case is cleared by arrest and conviction -- why not boast? There's benefit but no cost.
There are a couple of things that are suggestive, though. One that may be unconvincing to many is Mr. Davis' refusal of a final meal or a prayer: he seems to have been convinced that things would work out for him, which suggests a strong faith. One that may be more convincing to most is that no .38 caliber pistol was ever found to link to Mr. Davis; whereas the braggart admitted to having one in his possession at the time of the crime. Oddly, it was not produced for ballistics testing. Why not?
Ultimately it may well be the case that my state, Georgia, has just executed an innocent man. It may also be that he was guilty. We do not know. The lawful process was followed with complete thoroughness; all the safeguards tested, but in the end they did not serve to stop a questionable killing.
I've been spending a fair amount of time rereading John Locke, who (like Kant!) is a big fan of capital punishment. I begin to doubt that our system of government is legitimate enough to carry out an execution; at least, I think it is not legitimate enough in cases when a person has not explicitly accepted the social contract. For a traitor, who has sworn an oath and breaks it? Yes. But for someone who has never agreed to be governed? It will not do to say, as Socrates did, that they have accepted the benefits and are therefore bound as slaves to the state; that cannot hold in an era in which you are no longer free to move to, and live in, another country without explicit permission in the form of a visa. To say that you are bound by the contract whether you consent or not is to say that it is not a contract. It is an imposition by force, which by our tradition means that it is no contract at all.
Mr. Davis, at the age of twenty, clearly did not accept the contract: he was a gangster, part of a society that explicitly rejects the law. Perhaps he accepted the contract with the necessary explicitness when he surrendered to the police without a fight, accepting his life in exchange for the wager of trial and conviction.
To kill a fighting enemy is fair and honest; to kill a prisoner helpless is a morally dangerous act. Better for him to have died twenty years ago with a gun in his hand: better for him and for us. Instead he surrendered to our justice, and now we have given what we have of it to offer: binding a man with chains, and then poisoning him while he cannot resist.
UPDATE: For those interested in the strength of the evidence, the Federal opinion on the evidence is here. (H/t Clayton Cramer, who points out that one of the non-recanting eyewitnesses was a US Air Force Lieutenant Colonel -- certainly not a likely subject for police intimidation, and an officer whose word we would normally rely on in other life-or-death contexts.)
32 comments:
Keep in mind that Locke also held both that when a member of the compact attacked another member of the compact, he attacked the entire society of the compact and removed himself from the compact. Locke held then that that person--and a person beginning outside the compact who attacked a member of the compact--both were subject to legitimate sanction, including killing, by the compact.
By this, Davis' status as a member, or not, of our social compact is irrelevant; the murdered cop plainly was a member of our compact.
There is another question re the witness recantations: those 7 say, now, they lied then. On what basis should we believe they're not lying now? Twelve jurors (I assume: some states use fewer jurors in some cases; I'm concluding that in capital cases, 12 jurors are the norm) heard and viewed the evidence and reached a conclusion. None of the hoo-raw since has provided any compelling reason to conclude the jury was wrong.
The question in my mind, from the benefit of not having seen the evidence the jury saw, is that the prosecution's case centered on Davis being a generally bad guy, and the gun used to kill the cop was also used in another criminal shooting. However, the gun was never explicitly placed in Davis' hands for either shooting. For me, on this limited basis of the evidence, that broken chain of connection would have been reasonable doubt.
There is another question here, that I'm not sure was ever put before those authorities who were capable of altering Davis' sentence. This is the question of whether the Davis facing execution "today" was the same man Davis was when he was sentenced. Rehabilitation does occur, even in our jails. It might be that he was not that original man, and so reducing his sentence to some level less than death might have been appropriate, although not necessarily outright release: changed or not, he remain(ed) the man who was convicted of the murder.
Eric Hines
"Ultimately it may well be the case that my state, Georgia, has just executed an innocent man."
I unequivocally reject that premise. It may be that the State of Georgia executed someone other than the triggerman, but to say Troy Davis was innocent is a flat out lie. He was an accessory to a felony murder, and by Federal law at least (I can't speak definitively to Georgia law, but I do believe it to be the same) that makes him guilty of murder as well.
You say that executing a helpless prisoner is a morally dangerous act. I disagree. Troy Davis was executed as punishment for his part in taking the life of Mark MacPhail. I am well satisfied that justice does not require Troy Davis to have a chance to 'go down fighting'. I am also satisfied that he was poisoned while he could not resist. In fact, it is a far more humane way to execute criminals than I think is necessary.
Troy Davis broke the social compact in the second most egregious way possible (treason being the most egregious in my opinion), I do not give a whit if his execution deters anyone else, he will no more trouble the world with his thuggery. I less sympathy for Troy Davis than I would for a mad dog, because after all the dog did not choose to become infected with rabies. But sympathy or no, both need to be put down.
You say that executing a helpless prisoner is a morally dangerous act. I disagree.
I agree with Grim on this. The moral danger to executing a helpless prisoner lies not in killing a murderer (I'm excluding from this discussion other sorts of prisoners, like those captured in/after honorable battle--for instance those French prisoners after Agincourt, or other "battle prisoners" less harshly treated) but in whether we kill, for doing a killable deed, the one who actually did the deed.
There are questions about whether Georgia executed the man who actually murdered the cop (in in the definition of "murder," I agree with Federal law and you: a man participating in a crime in which a murder occurs is as guilty of that murder as the trigger man) was Davis. The question of whether the post-conviction doubts rise to the level of saying, legally, "not so sure," has been resolved, but not necessarily conclusively, morally.
Eric Hines
Again, I disagree. If we do nothing more than accept verbatim what Troy Davis himself claimed, he was guilty of murder (by the Federal definition). He never claimed he wasn't there (he admitted he was), he said he was part of the group that shot Officer MacPhail, he offered no assistance to Officer MacPhail, left him there to die, and only told all this to police when he went in for questioning. Based on his own claims, his guilt is confessed. Did the triggerman get away with it? It is potentially true. Honestly, I doubt it, but it is not impossible. That does not give me a moment's pause on the morality of putting down Troy Davis.
As for the morality of killing a killer, I again see no problem with it. There is no moral equivalence. No one killed Troy Davis for their own personal gain or pleasure. He broke the social compact so completely, there was no turning back for him. Perhaps a hundred years ago complete banishment would have been an option. But to my mind, such a punishment was nothing more than execution with a facade of mercy. As is a sentence of life without parole in the modern world. If you are convinced that this individual broke the social compact so severely that they can never again be allowed to rejoin society, then you have killed them just as much by locking them away until they die as by hanging them. If anything, the life sentence is more cruel (to both the victim's family as well as the criminal) since it is nothing more than the most drawn out execution possible.
"Troy Davis was executed as punishment for his part in taking the life of Mark MacPhail."
Well, no. Davis was executed for the crime of murdering MacPhail. Not for something else.
If Davis murdered MacPhail, then the courts and law have done what they are supposed to.
If Davis didn't murder MacPhail, then the state has just executed Davis for something he did not do, never mind that Davis may have been a miscreant anyway. That's not how the law is supposed to work.
That's a real important point that is lost on a lot of people.
I unequivocally reject that premise. It may be that the State of Georgia executed someone other than the triggerman, but to say Troy Davis was innocent is a flat out lie.
Are you calling me a liar, Mike? :)
The rule on accessory in Georgia is roughly as you describe: OCGA 16-2-2 ("Prosecution of parties who did not directly commit the crime") holds that you can charge and punish any party to the crime even if they did not directly commit the crime. However, the death penalty has its own entire section of the OCGA that includes specific regulations governing it; one of these, the requirement for an aggravating factor (except in cases of treason or aircraft hijacking) probably removes 'accessory to murder' from the list of crimes punishable by death. After all, you can't have committed murder plus an aggravating factor if you didn't commit a murder -- just an accessory to one.
That's a technical point, though. The moral argument has to do with how a 'social contract' state deals with the death penalty when it runs up against someone who clearly wants no part of the social contract, but who also cannot leave. Mr. Hines is roughly correct about Locke's opinion -- but Locke didn't consider that a part of the contract. He considered it a movement out of the State of Civil Society, and into the State of War.
In the state of war, for Locke, almost anything is permissible for almost any offense: in the second treatise on government, he says that you may use any sort of punishment that is adequate to bring sufficient terror to others that they won't contemplate the crime. However pragmatic that may be, it's not the practice of law as we define law; for one thing, it would violate the eighth amendment for me to impose a sentence on a prisoner chiefly designed not to punish his crime, but rather chiefly designed to instill terror in others.
...it would violate the eighth amendment for me to impose a sentence on a prisoner chiefly designed not to punish his crime, but rather chiefly designed to instill terror in others.
And yet the deterrent factor is an argument often used in justifying the death penalty. The deterrent factor is given credence by many (not all) of those who argue against the death penalty by arguing, not that deterrence--instilling terror in others--is itself wrong, but that deterrence doesn't work.
I'm also not convinced that deterrence of others as a reason for an execution is a violation of the 8th Amendment. There's nothing cruel or unusual about executing a killer, regardless of the State's motive for doing so: any cruelty lies in the mechanism, not in the deed; any unusualness lies only in whether death is appropriate for the crime. If there's anything cruel, it's the long, dragged-out appeals process that leaves the prisoner living in limbo and in fear for his own life on a day-to-day basis before actually killing him. Indeed, there are times when the executee gets multiple reprieves in the last hours, if not in the last minutes, before his execution. How is this different from my pointing a gun at the head of someone under my absolute control and squeezing the trigger, repeatedly, but at random intervals, until I finally get to the part of the cylinder that actually has a bullet in it?
Eric Hines
The prohibition preventing "cruel and unusual punishments," according to Blackstone, was intended specifically to prevent 'warning to others' punishments such as were occasionally performed by James II during his brief reign. Titus Oates is a prominent example of someone who suffered punishments more or less invented to make an example of them.
That seems to have been the intent, though you are right to point out that most Americans today believe that deterrence is the point of the death penalty. That may be an argument against it on Eighth Amendment grounds, if you are an originalist; though, of course, the Founders regularly practiced execution.
And yet the entire concept of punishment must necessarily, even if only as a side effect, include its deterrent effect on others: if one has no reason to believe he'll be punished for a transgression, he has only his own moral fiber to prevent him from transgressing if the transgression enriches him. But as the man said, "If men were angels...." I suggest that the "warning to others" objection refers less to the execution itself than to the additional fillips to the execution mechanics that James II occasionally added for their effect on others. Unfortunately, my Books 2-4 of Blackstone's Commentaries are .pdf images, and so I cannot search them.
As to the general relevance of Blackstone, I suggest (weakly) that when we incorporated English law at our own birth, we incorporated only the body of law, not the legal system (ours is statutory, rather than common, and with no pretense of Congressional Sovereignty); things like Blackstone came over as guides, not as directives.
Eric Hines
Grim,
I must apologize for my intemperate words if they could be construed as accusing you of being a liar. None such was meant, and I am shamed that my words could be taken as such. I will endeavor to be more careful with them in the future.
I merely had meant that while it is not beyond the realm of possibility that Troy Davis' was not the hand that took the life of Mark MacPhail, it was one of those responsible for him being dead. And while I am by no means a professional with regard to the law, I'm pretty sure that one can be charged with capital murder for being an accessory to a death (to include the lawful slaying of one's own accomplice) while in the commission of a crime. This may not be accurate, but it is my understanding of the law. But, as you said in your original post, it is unlikely that the facts of the case as originally prosecuted were not correct. Twelve jurors (over half of whom were black themselves, so this nonsense of this being a "legal lynching" is doubly offensive) found Troy Davis guilty beyond a reasonable doubt. I am not willing to second guess those jurors myself.
And more to the point, there's this which I just caught over at Neptunus Lex's page:
http://www.neptunuslex.com/2011/09/22/innocence-and-that/
Here's the Skeptical Juror's view on the case. He walks through a lot of the evidence and, in the end, discusses the oath jurors take and what impact that should have on how they vote in a case.
It's long - 5 parts.
the Skeptical Juror's take
He also introduces the catchy phrase, "First to talk, walks. Last to lie, dies" for these kinds of cases.
The "Skeptical Juror" ought to be named "the Conspiracy Theorist". For his theory to work, he must discard a whole stack of testimony and latch on to Coles' shirt swapping story as "a transparent lie". Meanwhile, it ignores Davis' blatant one. Davis' statement presents him as a complete innocent, trying to get Coles to stop harassing the vagrant, and having nothing at all to do with the shooting. For Davis to be telling the truth, Coles must have been both the yellow shirt wearer AND the white shirt wearer.
To kill a fighting enemy is fair and honest; to kill a prisoner helpless is a morally dangerous act. Better for him to have died twenty years ago with a gun in his hand: better for him and for us. Instead he surrendered to our justice, and now we have given what we have of it to offer: binding a man with chains, and then poisoning him while he cannot resist.
To kill a fighting enemy *may* be "fair and honest" but quite often it is not.
I am amazed to see you have so much trouble with the fact that a man who got a trial under an admittedly imperfect system, but one with far stronger protections that exist in most of the world, was convicted by a jury of his peers and sentenced to the penalty prescribed by law.
And yet you have many times advocated vigilante "justice" (no trial, no formal presentation of evidence, no pretense of process).
I don't get it. No process and no rules is "fairer" than a system that provides both, even if it - being administered by imperfect human beings - cannot guarantee perfect outcomes?
I'm not sure what you are thinking of when you say that I've advocated vigilante justice; the only things I can recall having written about vigilantes as such have to do with their utility as a counter-balance against corrupt police forces.
For example, I wrote on the history of the gunfight at the O.K. Corral: "The phrase "O. K. Corral" has been invoked on the floor of Congress numerous times as an argument in favor of gun control measures that would limit firearms to policemen and officers of the law. If such measures are meant to avoid the O.K. Corral, how to interpret the fact that it was precisely such a law that precipitated it? It was the attempt to enforce Tombstone's gun control law that was the proximate cause of the gunfight. A even worse problem is that the survivors of the losing side got themselves deputized by the Sheriff and went after the town and Federal marshals. A police-officer-only model of gun control would have done nothing to avoid the shootout, or reduce the violence that followed it.
"The one thing that did reduce the violence is the very thing that Congress most hates to consider: citizen vigilantes, who informed the participants that any future shootouts had better be conducted outside of town or there would be some hangings. This maneuver was so effective that historians still have trouble deciding exactly what happened in the rest of the war between those factions, as very little of it occurred close enough for nonpartisan witnesses to view."
The vigilance committee in that case didn't carry out any actual hangings, but I think the threat was morally legitimate. This is true even though the Earps represented both the Federal government and the local city government as duly appointed police; while the Clantons represented the county government and became duly appointed deputy sheriffs.
I have very limited faith in political structures, in other words; I don't think they successfully bestow legitimacy on actions the way people often want to believe that they do. What was legitimate here was the people protecting their families by telling the police and political factions to go fight their war outside of town.
Mike: I knew you didn't intend any insult; I was just amused by the phrasing. :)
Tom: That's interesting. He makes a compelling case for Davis' probable innocence (in the sense, at least, of not being the person who shot McPhail).
MikeD: The "Skeptical Juror" ought to be named "the Conspiracy Theorist".
I don't expect you to agree with him, and I don't know that I do, either. I would need to go through his analysis and argument again and closely consider it before deciding.
However, he does reason through the case pretty well, and he has reasoned through quite a number of other cases and appears to be quite knowledgeable about the process. In addition, there are a number of death penalty cases where he does not dispute the conviction, so he's not someone who automatically rejects all death penalty convictions. I'm not going to dismiss him out of hand.
Finally, he makes the point that the juror's oath is not to convict someone because he's a bad person, or because he committed a related crime (like accessory to murder), but because you believe beyond a reasonable doubt that he committed the crime he is being tried for. Davis was tried, and eventually executed, for pulling the trigger, not for being an accessory.
I'm not going to lose any sleep over this one way or the other. If I'm going to get upset and spend a lot of time researching a case, it will be one I might be able to do something about. It's too late for Davis.
About this case, <a href="http://tigerhawk.blogspot.com/2011/09/short-note-on-troy-davis-execution.html>Tigerhawk asks</a>:
<i>... a question for my conservative friends: If we generally believe that government is incompetent and the heavy hand of the state inflicts a lot of collateral damage, why do you have such faith in prosecutors and police?</i>
He is not opposed to the death penalty himself in certain cases, and it's a fair question given, as he points out, that more than 100 death row inmates have been exonerated in the last few decades.
About this case, http://tigerhawk.blogspot.com/2011/09/short-note-on-troy-davis-execution.html , Tigerhawk asks:
... a question for my conservative friends: If we generally believe that government is incompetent and the heavy hand of the state inflicts a lot of collateral damage, why do you have such faith in prosecutors and police?
I'd thought about responding on TH, but I'll respond here, since the question is being repeated. It's not a "fair question;" it's a non sequitur. It's not the prosecutors, but the jurors, in whom we "place such faith." The jury stands as a protective moat around both the defendant and the defendant's community against the prosecutors (who represent both the government and the community) and the police (who are an arm of the government). And, since the prosecutors have a hand in juror selection, the jury also represents the combined community and government interest in the case.
That second interest, though, is secondary, since the jury is required to be peers of the defendant, not of the government, and by being drawn from the community (which functionally works out to be the defendant's community, since most crimes are local) also shield the community from the government more than the other way around.
Government can, and has, abused its prosecutorial powers, and juries can, and have, abused their authorities. But the two together don't combine to abuse very often at all. And we have an extensive system of appeals that works to reduce even that "error" rate.
My faith is in the jury trial and justice system, not in the prosecutors and the police, per se, and my faith is weighted within the system more on the jury than on any other single part of the system.
Eric Hines
Actually, it is a fair question. The jurors represent only one part of the system; they cannot do their work properly if the government does not do its work properly. For the system to work, it requires both; to have faith in the system requires faith in both.
The government part of the equation is not limited to prosecution and police, but also to everyone from legislators who make the laws to judges to police forensics labs. All of these constrain the jury in various ways, and failure, through negligence or in any other way, in any of them can have significant impact on a jury's verdict.
I am very interested to know what your evidence is that "the two together don't combine to abuse very often at all." I've briefly looked around but all the numbers I've seen are guesswork. If you have solid data, I'd appreciate knowing where I could find it.
Also, I'd like to point out that the government picks the jurors.
I don't have any better data than do you. I just look at the number of times prosecutors withhold exculpatory data from the defense (for instance) and the number of times a jury convicts (or acquits) on the basis of bigotry (for instance) rather than evidence and the (apparent) number of wrongful convictions compared to the total--the latter seems less than the sum of the former, hence a significant degree of mutual cancellation of each other's peccadilloes.
As to the government picking the jurors, far from it. The potential jurors are the adults in the relevant community (the entirety of Collin County, for instance, in a Texas trial involving a transgression that occurred in Collin County), not a base population of the government's choosing. From this, for any given trial, a pool of jurors is randomly drawn--not preselected in any way beyond that initial selection of being from the local community. While it's true enough that those in the random pool can generally find an "acceptable" excuse to slide out of his duty, that still leaves for actual selection to a particular jury a pool in which the dice made the choice, not the government. The selection of the final 12 (plus alternates) then is made jointly by the defense and the prosecution.
Even if the trial is moved to another jurisdiction, the jurors are chosen from that new jurisdiction's community. Even with that roughly half-say that the government has, the government must draw from the community, not from a pool of the government's choice. And the government only has that half-say, not the full choice.
Eric Hines
I worked as an intern for the Stone Mountain District Attorney's office in Georgia, Lo these many years ago (it was about 1990). My impression of the jury selection process was this:
Step 1: A juror would impress me as being intelligent and well-suited to perform a citizen's duty.
Step 2: The DA would immediately exclude him or her.
Step 3: I would ask why, when selection was over. The answer? "She was too smart." We couldn't, I learned over time, afford jurors who might think rather than obey. Thinking jurors nearly always vote to acquit, because they see the holes in the state's case.
Which is not to say that the accused weren't guilty of something. These days, everyone is!
I worked as an intern for the Stone Mountain District Attorney's office in Georgia, Lo these many years ago (it was about 1990).
High school intern, was it?
Having sat on juries in both New Mexico and Texas (and been rejected in the same jurisdictions in both states), I cannot speak for why I was rejected (or by whom), I can say that this thinking citizen was selected, and sat, multiple times. And after one case (I don't remember how the subject came up), I was told by the prosecutor that I was the swing vote. If he had doubts of my choice, he must have been out of challenges by then.
Eric Hines
DA offices doubtless vary in their approach; but I was surprised to see the way this one, at least, viewed intelligence and engagement (let alone enthusiasm for service on a jury) as a threat.
I've never been called for service, so I can't speak to the process from the other side. To be honest, though, where I come from there is little crime; you could leave your doors unlocked if you wanted to, without much fear. No one ever steals anything off my motorcycle, which can't be locked, nor out of my truck, the lock of which is long broken. I don't know how many juries we even need to constitute out here.
Which is, of course, how it should be.
Hmm, a spam attempt just brought my attention to another of my endorsements of something like vigilante justice. It still sounds like a good idea, though...
I don't have any better data than do you.
Alas. The wrongful conviction rate is something I would really like to know.
I just look at the number of times prosecutors withhold exculpatory data from the defense (for instance) and the number of times a jury convicts (or acquits) on the basis of bigotry (for instance) rather than evidence and the (apparent) number of wrongful convictions compared to the total ...
And where do you find that data?
As to the government picking the jurors, far from it.
I take your point about the jury pool, and it is a good one, but rather than far from the government picking, it would seem to me that this, too, is a joint effort requiring some faith in the government and some faith in random luck.
Grim,
I could support such an amendment. And, if we put it in the constitution, it would have the added benefit of not being vigilantism.
Of course, at first I thought it was a post about something completely different, and even at second I thought it was a post about something completely different again.
And where do you find that data?
It's purely anecdotal, from reading the news and the blogs.
...this, too, [juror selection] is a joint effort requiring some faith in the government and some faith in random luck.
It's more a faith that the defense attorneys will be as skillful and dogged as the prosecutor in the process. And in the end, it's appropriate that the government's man, the prosecutor, has a hand in this. The victim and the victim's community have as much right to justice as does the accused.
With all the failures and shortcomings, though, I think our system remains, on the whole, spring-loaded to favor the defendant over the accuser. Once the jury has been empaneled, the prosecutor generally needs unanimity at having proven his case. The defense only needs to raise some doubt in the mind of one juror--and here is the faith in those 12 men and women: not every jury will be like the one in Twelve Angry Men; it takes a measure of courage and/or of stubbornness to be the lone hold-out.
Eric Hines
After all this, here's a thought- should we let the perfect be the enemy of the good? Is it possible that on occasion a man who is not guilty enough for the death penalty dies, but that we should maintain a just punishment anyway (in some cases, the only just punishment in my eyes), or should we dismantle such a punishment because it has been imperfect? We do live in a fallen world after all, and the next is for God to ordain, not us.
When the government starts executing judges and lawyers for getting people killed, then perhaps the state can be trusted to be personally accountable for life and death. Until then, they're just the executioner performing a service that could easily be outsourced to individuals and citizens.
There is zero to little doubt as to who was or was not killed justifiably at the scene of the crime. Doubt and uncertainty only happens later at a trial.
Due process would only have been followed if the appeals process had been legitimate. If the judges told Davis he had to prove his own innocence or the verdict would stand, how legitimate is that.
Post a Comment