Troy Davis: Why Poster Boys Don't Matter

David R. Dow, the Cullen Professor at the University of Houston Law Center and the Rorschach Visiting Professor at Rice University, has represented death row inmates for more than twenty years. His books include Executed on a Technicality and The Autobiography of an Execution.

There were hundreds of protestors outside the prison. From the sky the streets looked tiled with satellite dishes. There was live coverage on CNN, and a front-page story in The New York Times. The national conversation about capital punishment had finally begun. 

That’s what I wrote ten years ago, talking about two executions in Texas: Karla Faye Tucker, who was guilty but repentant; and Gary Graham, who was unrepentant but almost certainly innocent. Troy Davis was like Gary Graham all over again, but with an additional decade of internet connectivity. Where a few hundred people wrote the Texas Board of Pardons and Paroles urging clemency for Graham in 2000, upwards of half a million wrote the Georgia Board urging that Davis’s life be spared. Nobody was tweeting during the Graham execution, and Karla Faye Tucker, for all her photogenic appeal, did not have a Facebook page. 

Over at Slate, the always insightful Dahlia Lithwick thinks the Davis case is the tipping point, but I don’t think so. I think the Davis case only tells us what we already know: that a solid minority of Americans oppose capital punishment, and that some capital punishment supporters believe we should not be executing someone if there is uncertainty about his guilt. 

The problem with the former group is that they are, to repeat myself, a minority. The problem with the latter group is that they don’t really believe what they say; if they did they’d be against virtually all executions. I’ve been a death penalty lawyer for more than twenty years. I know a lot of executed offenders who might have been innocent. Because most death penalty cases are not DNA cases, some degree of uncertainty is the norm. States have been trying for decades to perfect the machinery of death and insure that only the guilty get convicted and only the worst of the worst sent to the gurney, but both quests run headlong into one simple ineradicable fact: human beings err. Every inmate who has been exonerated was sent to prison because twelve people were sure about his guilt. 

Death penalty supporters endorse an immoral punishment, but they are not morons. They know human beings make mistakes. If someone (a) knows human beings err, and (b) supports the death penalty anyway, we can safely say that person has determined that the cost of taking an innocent life every now and again is a price worth paying. 

Be careful about rising too fast to argue with that calculus, because at some level we all believe it.  That’s why we support the building of interstate highways, space exploration, and search for alternative fuels, not to mention urban warfare in Afghanistan, even though we know with actuarial certainty those government programs will cause innocent people to lose their lives. What’s different about the death penalty? Morally speaking, the answer is probably nothing. 

Troy Davis is just the newest chapter in the quixotic abolitionist effort to end the death penalty on the shoulders of a single prisoner. The problem is, no matter how many “I am Troy Davis” t-shirts you print, the only people who wear them are people who were already against the death penalty before they’d heard of Troy Davis. Rick Perry and his supporters don’t think they are Troy Davis. You can ask them, What if you were the innocent prisoner caught in this snare? And their answer will be, Airplanes crash, but I fly anyway. 

People do not abandon the death penalty because they suddenly realize human beings make mistakes (see, for example, Gary Graham), or because a single death row inmate strikes them as redeemed (see, for example, Karla Faye Tucker). People abandon the death penalty because they realize it is an obscene waste of resources, or because they acknowledge quite simply that it is wrong for the state to kill. 

Perhaps a few people, bombarded for weeks by the Davis media spectacle, reached one of those conclusions or the other. But four hours before Davis was put to death Texas executed Lawrence Brewer, and the day after Davis died Alabama executed Derrick Mason. Davis didn’t save either of them, and his death won’t save anybody else either, because you can’t change a death penalty supporter’s mind with posterboys.  America will indeed abandon capital punishment, but it won’t happen until the majority believes that killing even an unquestionably guilty murderer is wrong.  

Photo of Mentalgassi, “Making the Invisible Visible," from Marie A.-C. on Flickr. Used under Creative Commons.

Comments

[Proudhon]

Morally speaking, the difference between the death penalty and the interstate highway system is probably nothing? Because people get killed in car crashes the interstate is morally equivalent to the hangman's noose? Not hardly. The purpose of the death penalty (need it be said?) is to kill people. The process used to murder Troy Davis had been practiced, rehearsed and refined to work as efficiently as it could be made to work. Its goal? To kill him.

The interstate highway system? To get people from one place to another. Do people get killed on interstates? Sure. But those deaths are accidents. The highways were not designed to kill.

Your "equivalence" is completely absurd.

[Noah]

I think you're absolutely right on the last line. Your conclusion that America will not abandon the death penalty just because we executed one (or many) arguable innocent person (people) is, in my opinion, unquestionably right. I also agree that most supporters of the death penalty understand that sometimes, injustice will be perpetrated and that they are willing to tolerated that to give the most heinous of murderers, like Brewer, their just desserts.

Where I question your analysis is the idea that we all make the calculus that the cost of taking an innocent life can be worth a societal price. Interstate highways, space exploration, and the search for alternative fuels don't "take" innocent lives. Accidents involved in those endeavors do. Yes we all make the calculus that some dangerous activities that may lead to accidents are worth doing (planes crash, I still get on them), but that is not the same as choosing that there is a value worthy of allowing the state to intentionally take an innocent life.

My thoughts on Wednesday's two executions: http://harvardcrcl.org/2011/09/22/two-executions-two-reasons-for-opposing-the-death-penalty/

[d.r. dow]

i understand what proudhon and noah are saying, but i think it misses my point. the point i tried to make is that we all tolerate the loss of innocent life if we think the endeavor that causes that loss of life justifies the loss. we know highway workers (that's who i was thinking of; i wasn't thinking of drivers) will die at a rate of "x" workers per 100 miles. we know innocent civilians in kabul will die from drones. we accept those losses because we value the endeavor (building highways; fighting the taliban) highly enough to justify the price.

the objective in the davis case was not to kill an innocent person. the objective was to execute a murderer. it is obvious i do not accept the morality of that objective. but my point is that if someone does, it begins to look a lot like highways. it seems to be the premise that is doing the work for proudhon and noah is a rejection of the morality of capital punishment. i of course reject that premise as well, but death penalty supporters do not.

[Proudhon]

Thanks for the reply - much clearer to me the second time around.

[twitter.com/Saismaat]

Prof. Dow, that was a very thoughtful piece. As someone who does a fair amount of death penalty work inside an appellate court (which more than once has left me sobbing), I've come to the conclusion that the power to take life is an inherent attribute of sovereignty. The American people want this power; whether it’s deliberately exercised at the end of a judicial process; on the battlefield; as a foreseeable but regrettable consequence of a costs/benefits analysis, or the best of bad options. Some civilizations chose not to exercise that power. Not exercising power is not our thing.

We set safety standards, speed limits, national policy, knowing that some number of innocent people will die. Less would die if we did something else, at the cost of some utility or benefit or another. As you say, I fly anyway.

[d.r. dow]

saismaat -- i appreciate your honesty. i think it is the only honest approach for a death penalty supporter. we obviously disagree on the underlying moral issue, but the other point i would make -- which i think you will certainly understand, as someone who does death penalty work -- is that we as a society do not try hard enough to avoid taking life in the death penalty context. in war, we try to avoid civilian casualties. in all areas where we anticipate the loss of life, we try hard to avoid that cost. i think as a society we are failing in that effort where the death penalty is concerned. but thanks for your comments.

[wotv]

It’s a sad but realistic fact that majority of people debating about this, whether lawyers, judges, journalists, ethicists, pastors, housewives, you and I, are people who are several ladders removed from being in the smaller group of people who are actually at risk of being executed wrongfully. When your personal chance of being executed wrongfully becomes smaller and smaller, your ability to look at this from a "rational," "sensible," and "analytical" points of views becomes bigger and bigger, and you start to talk in terms of “efficiency,” “use of resources,” “for the greater good,” and the conclusions take on a farther and farther flight of detachment. And it’s not idle chatter either; it’s an actionable item.

How many of us who are in the closest position to pontificate about this, and even more importantly, to affect policy changes, even come close to being convicted of a crime, or jailed, let along being on the cusp of being legally put to death? Seriously! Think about it. A nightmare, if it were ever true. Imagine…you're on death row for the last 10 years; you did not commit the crime; there are hundreds of protestors outside arguing on your behalf. You are set to die in an hour ordered by the state.

Yeah right.

People who are most affected by this issue are the very people who cannot, for various reasons, advocate for the alternate positions. If majority of Americans come close to being wrongfully accused and be put to death, you can almost be certain that...well, use your imagination.

Of course, this does not explain why other countries (also with the majority of people who don't come close to being wrongfully executed) do not act like the way we do. What is about us? Why are we this way?

Is it because our society is not homogenous like Europe? (We think it’s “they” who are at risk, not us.) Is it because our society is not barbaric like countries that violate human rights? (We think this is our civilized way to protect the greater humanity of society). Either way, it seems that to solve the problem of the acceptance/rejection of capital punishment, the fundamental question is NOT, how do we make the process better, what is the role of the criminal, where does the Constitution stand on this, etc. Why are we this way as a society?

***

About the argument about 'I will fly despite the risk of dying,' it seems a little different than the 'we will execute despite the risk of killing an innocent person.' In the first scenario, the doer is taking on a personal risk. In the second, the doer is a collective mass doing something to someone who is not the self. It’s one thing to take a personal risk; it's another to take risk for ANOTHER person?

I gently and gratefully disagree with you, Professor Row, on the title of your piece. Maybe you wrote it out of fatigue, out of acceptance of reality, or out of an ironic laugh at the seemingly unchanging status quo after serving 20 years as a defendant of death row inmates. I've resisted reading your book for sometime now because I knew your book would persuade me for good one way or another, and I didn’t want to deal with this issue, in the schedules of an already hectic modern life. Actually I didn’t want to care about Troy Davis either, but Yahoo News stuck it in my face every time I wanted to log on into my Yahoo email. The Poster Boy was facing me on the computer whether I liked it or not.

My friend with whom I talk about the furthest things from the death penalty (like love, men, fashion) mentioned your book to me over this summer. I nominated it for the book club, but no one wanted to read it. I was not among the convinced minority who believed that the death penalty was right/wrong. Then this case surfaced. One of my favorite bloggers, William Baude (who writes about dog parks, food, and cocktails) mentioned your piece in his Twitter post.

Maybe we don't see concrete results today, but that doesn’t mean we know this case doesn’t matter. Things evolve but be assured that every action has some unintended consequences that may not be immediately obvious.