Capital punishment as an oxymoron

Every now and then an execution in one of those states that Abraham Lincoln should have allowed to secede from the Union turns up that is so willful and egregious in its mockery of justice that the attention of the country, and the civilized world, is momentarily riveted in horror. One such case is that of Troy Anthony Davis, executed last week by Georgia.

The late law professor David Baldus chose Georgia as the focus of his initial study on racial discrimination in the application of the death penalty. He found that a black man convicted of first-degree murder was four times likelier to be sentenced to death in Georgia than a white one for a similar crime, and that a black man whose victim was white was 11 times likelier to get death than a white man whose victim was black. When the white victim is a police officer, forget the odds; Georgians reach for the nearest rope and tree.

Oh, Baldus studied Pennsylvania too, and found comparable levels of discrimination here.

Witnesses recanted

The Troy Davis case is now widely familiar. On August 19, 1989, Officer Mark McPhail was shot to death in Savannah while attempting to intercede for a homeless man who was being beaten on the street. Troy Davis, then 20, was one of several people at the scene. Nine witnesses identified him as the shooter at his trial. Case closed.

Except that seven of the nine witnesses later recanted their testimony. Six of those seven now declare that police had coerced them into making their statements. And three of the original jurors now say they would have voted for acquittal had they been aware that the evidence against Davis was cooked up.

But these facts couldn't win Troy Davis a new trial— not from the State of Georgia, not from federal appeals courts, and not from the U.S. Supreme Court, which rejected his last-ditch appeal in a one-sentence statement. Despite the facts, as well as clemency appeals from Jimmy Carter, Pope Benedict XVI and Desmond Tutu, Davis couldn't get a commutation from the Georgia Board of Pardons.

Sympathy for the victim

Through it all, Davis steadfastly maintained his innocence. Addressing the McPhail family, which had gathered to watch him die, he affirmed it again. He expressed his sympathy for the family's own suffering.

It was as tragically dignified an exit as it's possible for a man to make. Then he was killed.

Troy Davis's case would seem to be a textbook example of everything that's wrong with the death penalty. He was framed to begin with. Although the American judicial system guilt requires proof of guilt— not innocence— the U.S. Supreme Court held Davis's attorneys to such a high evidentiary standard in their 2010 review of the case that the attorneys were in effect required to make a prima facie demonstration of actual innocence as the precondition for a new trial.

This requirement stood justice completely on its head, not that we have come to expect anything else of the current Supreme Court. Troy Davis isn't the first person to be executed despite the likelihood that he was innocent. Nor will he be the last.

Killing for fun

Hundreds of miles from Georgia, another execution was carried out that same evening in Texas, without vigils or final appeals. The crime for which Lawrence Brewer was executed was also notorious. He and some friends had tied a black man, James Byrd, to the back of a pickup truck and dragged him to death. They'd done it for fun. The friends received lesser sentences (one testified against Brewer in exchange for his own life).

Brewer himself was unrepentant. He made no final statement and apologized to no one.

For those who support capital punishment, Brewer's execution would seem to vindicate it. Brewer was indeed guilty of James Byrd's death, although whether he was "more" deserving of the death penalty than his confederates— including the one who ratted him out to save his own skin— is a question. The murder itself would seem to fall into the category of "heinous" crimes for which, supporters would argue, the death penalty is particularly reserved as an expression of community outrage.

Never mind that the term "heinous" itself is a subjective judgment incapable of actual definition, or that it's frequently mixed up with the no less nebulous idea of hate crimes, which in Orwellian fashion mandates punishment beyond the deed committed for the thought that may (or may not) have accompanied it. The murder of James Byrd was a terrible act. Outrage was justified. Punishment was necessary.

But execution wasn't— not in these cases or any others. In snuffing out the life of James Byrd, Lawrence Brewer treated it as a thing of no value. In executing Brewer, the State of Texas treated his life as a thing of no value as well. Brewer killed one man. Twenty-five million Texans killed Brewer. In effect they judged him not as worthy of punishment but as unworthy of life. The death penalty isn't a punishment, for punishment implies a person punished— and death extinguishes the person.

Ruling out repentance

Capital punishment is, consequently, an oxymoron. In law, a person is a morally responsible agent. We require that someone accused of a crime be able to distinguish right from wrong, which is the definition of moral agency. Even in the most hardened criminal, the capacity for self-judgment— repentance— can never be ruled out, for if it could, then by definition there would be no legal "person" and therefore no one to punish.

If you oppose capital punishment because it's arbitrary, capricious, discriminatory and carries the risk of executing the innocent, that's fine with me. But even if the system were administered as flawlessly as humanly possible on all counts, the death penalty would still be wrong—not for its potential bias or the possibility of error, but wrong in itself. That judgment that has been reached by virtually every civilized state in the world, as well as by 16 states in our own Union.

Of course the execution of Troy Davis was a disgrace. But so was that of Lawrence Brewer. I can't say I grieve for both men in exactly the same way. But I grieve for us.