The Slow Death of Certainty
Will the Troy Davis case be the one that finally turns America against the death penalty?
Update, 11:08 p.m., Sept. 21: After an earlier delay, the state of Georgia has executed Troy Davis.
Whatever else it may come to mean, the execution of Troy Davis by the state of Georgia can stand for the proposition that the death penalty in America is finally dying. That's because the fight over the death penalty is now happening in public, at the grassroots, and with reason triumphing over emotion. In the debate over capital punishment, the desire for certainty is finally beginning to carry as much weight as the need for finality. Americans are asking not so much whether this particular prisoner should be killed as whether this whole capital system is fair.
Steve Kornacki asks whether the Davis case and the vast amount of media and international interest it has generated might serve as a "public opinion tipping point" that signals the beginning of the end of capital punishment in America. He notes that public support for the death penalty has remained pretty consistent over the past decade (64 percent of Americans are still for it), and points out that the decline in support for the death penalty since the 1990s has more to do with a drop in crime rates than changes in attitude. Kornacki concludes that "the basic eye-for-an-eye nature of the death penalty remains compelling for most Americans," and in light of all the whoopin' and stompin' by the Rick Perry crowd in the last month, it's tempting to think that the government-sanctioned killing of a man who many believe to be innocent won't move the needle much. Tim Murphy agrees, reminding us that "[a] third of all Americans, 34 percent, believe an innocent person has been executed and at the same time support the death penalty."
I think that's wrong. Start with the fact that the Troy Davis case has created staggering levels of public interest in the death penalty. (Jeff Toobin called Davis "the best-known person on death row" and that no death penalty case has engendered this much public doubt and outrage since the execution of Julius and Ethel Rosenberg, killed in 1953 for spying for the Soviet Union.) It is probably folly to try to understand why one death penalty case captures the public imagination more than any other. But the Davis case illustrates so many of the growing doubts about the capital system, such as questions about the reliability of eyewitness testimony (as explained by Brandon Garrett), the grotesque levels of racial bias that infect the capital sentencing system, and the various types of police misconduct.
Whatever the reason, those who are opposed to the death penalty in general and those who opposed it in this particular case have drawn enough attention to the case that even Kim Kardashian was tweeting about it. Facebook profiles were changed to read "I Am Troy Davis" and Twitter activists used hashtags such #IamTroyDavis and #TooMuchDoubt to urge supporters to call the offices of the judge and district attorney. Rallies, vigils, and protests were organized on both Facebook and Twitter in ways that have put the question of capital punishment before hundreds of thousands of Americans who may not have felt that they had a voice (or even a strong opinion) on the issue. It seems that Americans, and especially young Americans, have a lot to say. The point they were all making—I am Troy Davis—is exactly the right one: Could someone I care about have been sentenced to death based on a bunch of eyewitnesses who later recanted?
Here's why I think all this matters: In a thoughtful essay posted earlier this week, my friend Andrew Cohen writes about why it matters that the death penalty be administered fairly. He asks why "the 'law' in capital cases now is mostly used as a weapon" and wonders how it has come to pass that in declining to revisit the claims of actual innocence in the Davis case, Georgia was forced to say "that its interest in the finality of its capital judgments is more important than the accuracy of its capital verdicts." That question—why and how many of us are willing to tolerate error to achieve finality—is the real dispute here. And it's why, in the Davis case as in almost all death penalty cases, the two sides have talked past each other for so long.
Dahlia Lithwick writes about the courts and the law for Slate.