David R. Dow: Troy Davis: Why Poster Boys Don’t Matter
September 22, 2011
Is the Troy Davis case the tipping point on the capital punishment debate?
Unfortunately, not until
the majority of Americans believes that killing—even an unquestionably guilty
By David R. Dow
By arrangement with Beacon Broadside.
There were hundreds of protestors outside the prison. From the sky the streets
tiled with satellite dishes. There was live coverage on CNN, and a front-page
story in The New York
Times. The national conversation about capital punishment had finally begun.
That’s what I wrote ten years ago, talking about two executions in Texas: Karla
Faye Tucker, who was
guilty but repentant; and Gary Graham, who was unrepentant but almost certainly
innocent. Troy Davis
was like Gary Graham all over again, but with an additional decade of internet
connectivity. Where a
few hundred people wrote the Texas Board of Pardons and Paroles urging clemency
for Graham in 2000,
upwards of half a million wrote the Georgia Board urging that Davis’s life be
spared. Nobody was
tweeting during the Graham execution, and Karla Faye Tucker, for all her
photogenic appeal, did not
have a Facebook page.
Over at Slate, the always insightful Dahlia Lithwick thinks the Davis case is
the tipping point, but
I don’t think so. I think the Davis case only tells us what we already know:
that a solid minority
of Americans oppose capital punishment, and that some capital punishment
supporters believe we
should not be executing someone if there is uncertainty about his guilt.
America will indeed abandon capital punishment, but it won’t happen until
believes that killing even an unquestionably guilty murderer is wrong.
The problem with the former group is that they are, to repeat myself, a
minority. The problem with
the latter group is that they don’t really believe what they say; if they did
they’d be against
virtually all executions. I’ve been a death penalty lawyer for more than twenty
years. I know a lot
of executed offenders who might have been innocent. Because most death penalty
cases are not DNA
cases, some degree of uncertainty is the norm. States have been trying for
decades to perfect the
machinery of death and insure that only the guilty get convicted and only the
worst of the worst
sent to the gurney, but both quests run headlong into one simple ineradicable
fact: human beings
err. Every inmate who has been exonerated was sent to prison because twelve
people were sure about
Death penalty supporters endorse an immoral punishment, but they are not
morons. They know human
beings make mistakes. If someone (a) knows human beings err, and (b) supports
the death penalty
anyway, we can safely say that person has determined that the cost of taking an
innocent life every
now and again is a price worth paying.
Be careful about rising too fast to argue with that calculus, because at some
level we all believe
it. That’s why we support the building of interstate highways, space
exploration, and search for
alternative fuels, not to mention urban warfare in Afghanistan, even though we
know with actuarial
certainty those government programs will cause innocent people to lose their
lives. What’s different
about the death penalty? Morally speaking, the answer is probably nothing.
Troy Davis is just the newest chapter in the quixotic abolitionist effort to
end the death penalty
on the shoulders of a single prisoner. The problem is, no matter how many “I am
Troy Davis” t-shirts
you print, the only people who wear them are people who were already against
the death penalty
before they’d heard of Troy Davis. Rick Perry and his supporters don’t think
they are Troy Davis.
You can ask them, What if you were the innocent prisoner caught in this snare?
And their answer will
be, “Airplanes crash, but I fly anyway.”
People do not abandon the death penalty because they suddenly realize human
beings make mistakes
(see, for example, Gary Graham), or because a single death row inmate strikes
them as redeemed (see,
for example, Karla Faye Tucker). People abandon the death penalty because they
realize it is an
obscene waste of resources, or because they acknowledge quite simply that it is
wrong for the state
Perhaps a few people, bombarded for weeks by the Davis media spectacle, reached
one of those
conclusions or the other. But four hours before Davis was put to death Texas
Brewer, and the day after Davis died Alabama executed Derrick Mason. Davis
didn’t save either of
them, and his death won’t save anybody else either, because you can’t change a
supporter’s mind with posterboys. America will indeed abandon capital
punishment, but it won’t
happen until the majority believes that killing even an unquestionably guilty
murderer is wrong.
This post originally appeared at Beacon Broadside.
David R. Dow, the Cullen Professor at the University of Houston Law Center and
Visiting Professor at Rice University, has represented death row inmates for
more than twenty years.
His books include Executed on a Technicality: Lethal Injustice on America’s
Death Row and The
Autobiography of an Execution.
Prisons are, and always have been, a failed social experiment.