In principle, I still support capital punishment. I still believe that is a just punishment for those guilty of the most heinous homicides. In theory, all those executed would be guilty. Unfortunately, we live in the real world, and not one merely of theory and principle. And, in that real world, my position on capital punishment is informed by the risk of executing an innocent person. There have been instances where it is strongly suspected an innocent person may have been executed, most notably that of Cameron Todd Willingham. The case of Troy Davis, though, is even more egregious. In fact, it has changed my mind when it comes to capital punishment.
Most people say their worst nightmare, when it comes to capital punishment, is that it would be learned after an execution that the condemned was innocent. That is not, and never has been, my worst nightmare. My worst nightmare has been that a state would execute a person it knew to be factually innocent, or have a high probability of innocence, at the time of execution. This is what is happening in the case of Troy Davis. It represents the complete failure of both the executive and judicial branches.
This, unfortunately, is not even the most egregious aspect of what is happening. It turns out such executions might not even be unconstitutional. Yes, that was read right. It might not violate the Constitution to execute a person who is factually innocent, and, at the time of execution, it is already known, and admitted, by the state that the person is factually innocent.
Back in 2009, Troy Davis came before the United States Supreme Court seeking to prove his innocence. The Court ruled that he should have a hearing entitling him to do so. Unsurprisingly, Justice Antonin Scalia dissented (PDF), supporting the state’s decision. This dissent would not have been particularly surprising, or disturbing, relatively speaking, if not for what he wrote in it. Specifically, Justice Scalia wrote:
This Court has never (emphasis in original) held that the Constitution forbids the execution of a convicted de- fendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that ques- tion unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitu- tionally cognizable.
Yes, that is read correctly. According to Antonin Scalia there is absolutely nothing unconstitutional about executing a person known to be factually innocent at the time of execution. As a supporter of capital punishment, I always believed that should such a situation arise, the courts would step in and, if not willing to uphold a claim of factual innocence, would, at the very least, use a procedural mechanism to prevent such an execution. Failing that, I believed that the executive would step in and use its powers of clemency to prevent such an execution. In Georgia, both have failed.
We now face what is the true worst nightmare when it comes to the death penalty, and one we thought we would never face: the execution of a person known to be, or with a high probability of being, factually innocent. Congratulations, Georgia. You have managed to turn someone who supports the death penalty in principle to a person who opposes it in practice. When it comes to life and death, perfection is not a goal – it is necessary. Given this, I cannot, in good conscience, continue to support the application of the death penalty in the United States.
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