Troy Davis case: Will uncertainty in his case lead to uncertainty about the death penalty?

The law, lawyers, and the court.
Sept. 21 2011 8:30 PM

The Slow Death of Certainty

Will the Troy Davis case be the one that finally turns America against the death penalty?

Troy Anthony Davis was sentenced to death for the 1989 murder of off-duty Savannah police officer Mark MacPhail.
Troy Davis

Update, 11:08 p.m., Sept. 21: After an earlier delay, the state of Georgia has executed Troy Davis.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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.

One side cares, as Cohen explains, principally about finality. That's why supporters of Perry (who claims never to have lost a night's sleep over an execution) and Supreme Court Justice Antonin Scalia (who wrote in 2009 that "this Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent") believe that for the process to work, it must eventually end—and that in order to achieve that end, some error is inevitable. The victims' rights movement, which has had so much influence over the criminal law in this country, uses the same reasoning, except that it's called "closure." The theory here (not always supported by the empirical research) is that victims of violent crime can only heal and move past a tragedy once they have had some formal ending to the legal inquiry that, in states that allow for capital punishment, must take the form of capital punishment.

But the nature of the judicial system is that certainty and finality are always in tension. It's almost impossible to have both. And with the host of DNA exonerations, the well-publicized executions of at least arguably innocent men like Cameron Todd Willingham, the public may come to feel more inclined toward certainty than finality. I think that the kinds of errors supporters of the current system are willing to tolerate are simply not the kinds of errors most Americans can stomach. Most Americans will eventually reject the idea that there can be no check on profoundly entrenched racial bias, overzealous cops, jailhouse snitches, and crappy forensic evidence. Cohen's point, I think, is that those errors are also becoming harder to defend. A groundswell of doubt about the entire capital system was the motivation behind the most compelling slogan of Davis' supporters: "Too Much Doubt."

Advances in science and the empirical research on erroneous convictions are only going to create more doubt in the future. There is an almost unlimited supply of prosecutorial error and misconduct to draw on, and as it grows so will public uncertainty. And as the new media and social media broaden the debate about the death penalty, the folks who are leery of that uncertainty are ever more likely to be heard. America's conversation over capital punishment has long been weighted toward the interests of finality. But there is a growing space for reason and doubt and scientific certainty. It's hardly a surprise that prosecutors, courts, and clemency boards favor finality over certainty. That—after all—is the product they must show at the end of the day. But maybe the surprise, and the faint hope, of the massive outcry over the execution of Troy Davis, is that the rest of us have found a way to demand more from a system that has—for too long—only needed to be good enough.