On The Death Penalty And Our Failure To Administer Justice Justly
This week, the State of Georgia executed Troy Davis in a case that gripped the nation for all of 24 hours, but had earned the attention of anti-death penalty, human rights and criminal justice advocates for years. Davis had been convicted after two hours of deliberations for the 1989 murder of Savannah police officer Mark MacPhail.
Before going further, I want to express my condolences to the MacPhail family for all they have been put through, from the loss of their Army Ranger, Police Officer and Good Samaritan son, brother and father. There is no question he died off-duty while fulfilling the oaths he took in his service to this country and to the city of Savannah. But this post and this issue is not about him, the victim. That is largely because the primary focus of the criminal justice system – the administration of the death penalty in particular – intentionally is not structured to factor in retribution.
This focus is why criminal cases are brought by the state (whether on the local or federal level) on behalf of the people and society as a whole. Accompanying civil suits may be brought by victims and their family to seek compensatory justice, but they are largely apart from the criminal cases. This is because criminal punishment is in the interests of society as a whole and not on behalf of the victims. It is also why we seek justice itself, instead of retribution.
Click through to keep reading
A time honored element of criminal law in the United States – one that is hammered home well before law school – is that we value fair administration of justice. Nowhere is this better reflected than in the maxim that it is better than ten guilty people go free than one innocent be put to justice. But this is just a maxim. Anyone who isn’t deaf, dumb or blind can tell you that justice is not administered fairly. Factors such as race, nationality and socioeconomic status are all defining elements in one’s access to fair justice. More disturbing is that Americans no longer care. A friend directed me to a Washington Post article citing a recent Gallup poll that found 64 percent of Americans favor the death penalty (our most extreme form of justice) and that around a third felt that killing innocent defendants was a “natural cost of important punishment.”
Read that last line again. If you can say you still have confidence in the American people as a beacon of hope… as John Winthop’s City Upon A Hill… well I have news for you. The eyes of the world were upon us tonight and in the case of others convicted or put to death in capital cases who were then exonerated by activists including those from the honorable Innocence Project. They were on the audiences at recent Republican presidential debates where Rick Perry was applauded as a hero for signing 243 death warrants as Governor. A few at the recent CNN Tea Party debate shouted “Let him die” when Ron Paul was asked whether health care should be provided to an uninsured man whose great crime was being involved in a hypothetical accident resulting in a coma.
We have become a bloodthirsty country in which retribution is joined by an illogical fear of appearing “soft on crime” when fulfilling acts of due process and good justice. As a nation we have generally and collectively ignored the overt, institutional racisms and classism of the administration of capital murder cases. I don’t suggest that we do this intentionally. Quite to the contrary, I think most all individuals want the system to function well, but realistically it is a human mechanism subject to the inequalities, biases and fallibility of the humans who construct it.
Some states have identified this problem and worked to eliminate the death penalty. Perhaps no example was better than since-disgraced Governor George Ryan of Illinois, who declared a moratorium on the death penalty in his state after a Northwestern journalism class uncovered exonerating evidence for a man on death row who was once less than 48-hours from the ultimate penalty. Three years later, Ryan commuted all Illinois death sentences. Illinois and several other states then joined the vast majority of the civilized world in banning the death penalty on the grounds that it could not be administered justly and with certainty.
Yet there remains a jaded, distorted view among much of America that either it can be administered well or that it need not be perfect. Nowhere is this better reflected than in Governor Perry of Texas, who is on a record setting pace for executions. Despite the fact that George W. Bush had overseen the incarceration and natural death of a death row inmate (Tim Cole, who was posthumously exonerated) and the execution of a likely innocent man (Claude Jones, who was convicted using hair follicle evidence that incorrectly identified him and was corrected only after his death) just a year before Perry took office in Texas, Perry has consistently argued that Texas administers justice well and has stated that he is confident that none of his 236 death warrants could have been signed with respect to innocent men, including that of Lawrence Russell Brewer who murdered James Byrd Jr. in a highly visible hate crime in 1998.
None doubt Brewer’s guilt, but anyone familiar with the name Cameron Todd Willingham (which I suspect more will know as the presidential season goes on) knows damn well for sure that Rick Perry has reason to believe he has executed an innocent man. Three hours before Perry signed away Willingham’s life, he was presented with a 2004 preliminary findings of an independent arson expert Gerald Hurst which indicated that a) Willingham was convicted of arson based on junk science procedures which had been universally discredited and b) that the evidence in the case did not support a finding of arson at all. At best, Willingham had been convicted on bad evidence and, at worst, there was no crime committed at all.
Perry ignored the report, put Willingham to death and has spent five years thwarting the investigation of the Texas Forensic Science Commission’s investigation into the Willingham case, including replacing commission members who were perceived to be in agreement with the Hurst report with close political allies who have moved to delay and hide the Commission’s investigation from the public eye. In 2011, Perry ally and Texas Attorney General Greg Abbott declared that the Commission did not have the jurisdictional authority to continue investigating cases prior to its formation in 2005, effectively ending and ignoring their six prior years of work.
And yet many Americans cheer this man for his executing prowess. I like to think that more are simpatico with me and would prefer to weep for those unjustly killed than herald the men behind the proverbial black masks.
Arguments that a person might not be good or that they’ve done evil in their lives are irrelevant. You are brought to justice for specific crimes and if the administration of justice cannot stand with its principle foundations in respect of the death penalty, we need not continue the mummers’ farce that it works.
Every person should read the brilliant New Yorker article Trial By Fire about the Willingham case and I implore you all to make this an issue this year. Willingham and Davis might not have been innocent, but they probably weren’t guilty. Those results aren’t mutually exclusive, but holding our heads high as Americans while the miscarriage of justice continues most certainly are.
Rick Perry on the Administration of the Death Penalty in Texas