On October 5th, the American Constitution Society (ACS) hosted a discussion about the controversial execution of Troy Davis. Despite serious doubts being raised over the soundness of his conviction, Davis, 42, was executed by lethal injection on September 21 for the 1989 killing of an off-duty police officer.
ACS Vice President Margaret Garrett ’12 organized the talk, which included remarks by Professor Ursula Bentele death penalty expert and director of the Steve Landsman, the author of Crimes of the Holocaust, the Law Confronts Hard Cases (University of Pennsylvania Press, 2005), who is visiting for the fall 2011 semester from DePaul College of Law.
The panel was organized in response to the strong campus-wide reaction to the execution. “After the execution, there was a lot of talk about the death penalty and how this could have happened,” said Garrett. “Many students had questions about the process and the legality of Davis’ execution, and we wanted to present the legal arguments and bring to light the injustices of the death penalty.”
Landsman offered his observations about the troubling specifics of the case. He cited a Harvard University Press study that analyzed 200 wrongful conviction cases reversed on the basis of DNA evidence. He pointed to three types of evidence that led to wrongful convictions in those cases: jailhouse snitches, eyewitnesses making identifications in poorly lit or difficult circumstances, and others who might have been accused of the crime testifying for the state.
In the Davis case, all three of these factors were present: a jailhouse snitch, a questionable identification in poor light, and someone who might have been the shooter testifying against him. Landsman noted, “Could I tell you with 100 percent certainty that Troy Davis was not the shooter? No. I’d say there is a 50 percent chance that he might have been, but do you execute someone on the basis of 50% chance? No. The death penalty is final. You cannot undo it. Mr. Davis is gone. The standards that we use to apply the death penalty seem to be demonstrably ineffective.”
Landsman concluded by offering his personal views on the death penalty. “I am Jewish and have written extensively on the Holocaust, and personally my own feeling is that you don’t ever let the state have the authority to take life in cold blood, period. How can we judge who is right and wrong?”
Professor Bentele opened her remarks with an expression of disappointment and disbelief that the Georgia Board of Clemency refused to act in the Davis case. “I am not only a defense lawyer through and through, but I am against capital punishment,” she said. “I was naïve in thinking that the Georgia Board would grant clemency in this case. Clearly the process failed here.”
Bentele spoke to three main issues that she believes make the death penalty incompatible with both our constitution and our society’s moral core. She first pointed to the racial bias associated with the imposition of death, citing the groundbreaking report by University of Iowa College of Law professor, David Baldus, whose empirical research found that people accused of killing white victims were four times as likely to be sentenced to death as those accused of killing black victims. “His study showed that 70 percent of prosecutors who sought the death penalty were in cases of black on white crime, even though more than 60 percent of murders involve black victims,” she said. “If MacPhail had been black, I have no doubt that Davis would not have been on death row.”
Bentele also spoke to the arbitrariness of the imposition of death, citing the case of Marcus Johnson who was meant to be executed in Georgia just weeks after Davis, but was given a stay by a state judge. “Johnson was a black man, and our clinic represented him many years ago in his cert petition in which we claimed an ineffective assistance of counsel claim because his lawyer didn’t investigate the case for three years,” she said. “He is not being executed because Georgia doesn’t want to execute two potential innocent people within the span of two weeks.”
She also pointed to the 1999 case in which the Pope visited the governor of Missouri, and counseled him against the death penalty. To please the Pope, the governor pardoned a defendant who was meant to be executed that very night. “But the next day, a less fortunate defendant was executed,” said Bentele.
Bentele concluded her remarks addressing the length of time defendants spend on death row, highlighting the case of Manuel Valle, a Cuban national who was executed in Florida. “He was executed at the age of 61, after spending 33 years on death row. Troy Davis spent more than 20 years on death row. After that much time, you are executing a different person,” she said. “What bothers me most about this case is those four hours he waited for the Supreme Court to decide whether he would be executed. If that’s not torture, I don’t know what is.”