Motley Moose – Archive

Since 2008 – Progress Through Politics

Georgia Just Changed My Mind on the Death Penalty

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.


  1. Mets102

    I don’t think anyone ever imagined Scalia’s words would be given meaning, and that a person who, undoubtedly, would be acquitted at a retrial, assuming the case even made it to the jury, would actually be in the position of imminent execution despite this being known.

  2. wordsinthewind

    about the death penalty in law school when I discovered just how our “criminal justice system” actually functions. Lucky me I’d never had any encounters with it before then so I simply did not know better. Since I am a Texan I know that at least one innocent life has been taken and with knowledge of that innocence. I keep waiting for someone of courage to speak up about what Perry did to bury the truth.  

  3. …individual murder. Many people already executed have been proven to be innocent thanks to new DNA and forensic tests.

    The law is fallible. It should do nothing irreversible. Death is irrevocable.

    Personally, I think a lifetime in prison is a better punishment for the most heinous crimes.

    As for deterrence… well the US has some of the highest crimerates in the developed world.  

  4. HappyinVT

    In all truthfulness I certainly wouldn’t mourn the death of someone like Raeder or Dahmer or Bundy but what’s happening in Georgia has made me think a whole lot harder on the issue than I have in the past.

  5. November 5

    I’m with you on capital punishment, the problem is our system of justice is corrupt and irretrievably broken. It’s hard to support the death penalty when you have zero confidence in the justice system.

    As for Scalia, from a certain legal point of view, he’s correct. But this is coming from the same Justice whose theory to Fourth Amendment jurisprudence is something like “the cops were factually right, they did find the contraband.” The two viewpoints are analytically inconsistent.

    I’m not sure which Justice has done more to eviscerate civil rights in this country, Scalia or William Rehnquist (the tools appointed by Bush the 43d have a high bar to clear, or maybe there’s nothing left to eviscerate anymore?)

    Regarding Troy Davis, I make no judgment. The state’s decision does not surprise me, after all it’s a bureaucracy. I’m not a big fan of Corporate Media, nor would rely on them to tell you the truth, they just want to stir up controversy to sell advertising. Stories about condemned men who might be innocent after all these years seem to be good for business. What should be most frustrating is that it’s very hard to get to the truth in all of these cases. That’s the real problem here.  

  6. I just don’t want my government delivering it to them

    There are plenty of situations where I would be happy to deliver the sentence myself: I saw you do it, you deserve to die, and your rotting corpse will never hurt anyone again.

    In war innocents die, because the world is fallible (and sometimes because people are evil, in which case I would be fine with personally serving a death penalty on them [yes, I am looking at you, Momar]). But civil court is not war, the government is not at war with its people, and there is no need to kill innocent citizens.

  7. AaronInSanDiego

    The most basic reason is that I have never seen a compelling enough reason to support it. Cases like this merely reaffirm and strengthen my opposition.

  8. Noor B

    I did support the death penalty.  My sister lived in Tallahassee, FL, at the time when Ted Bundy was prowling that town looking for somebody to kill.

    But the years have gone by, and the pattern I have seen for the last decade-plus is an ever-increasing frequency of resort to the ultimate sanction.  It is as if the states where the DP exists are in some sort of sick race to see how many convicts they can execute, whether the case warranted it or not, whether the person is really guilty or not.  It’s done as mechanically as most of us would swat a mosquito.  Outsider “categories” of people tend to show up on Death Row the most frequently:  the poor, the addicted, the racial minority (especially African-Americans), and even the mentally challenged (yes, Texas once executed a man whose IQ fell into the range considered to suffer from mental retardation).  It has long since begun to smack of eugenics, and I have no patience with that sort of cold-blooded hatefulness.

    What happened tonight was simply a judicially sanctioned murder, pure and simple.  And what is worse, there is probably a killer still loose.  

    I pity both families, Troy’s for the unending hurt they must now endure, knowing that their government could be so deliberately unjust, and the MacPhails because the day will come when another murder happens with a similar MO, and they will sit there in shock and wonder, “Has our loved one’s murderer been free all this time?  Did they execute the wrong man?”  And it will eat at them, at the peace they now think they have gained.  No justice, and no peace.

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