Thursday, September 22, 2011

A short note on the Troy Davis execution 

There is a lot of complaining on the left about Georgia's execution of convicted cop killer Troy Davis, which went from proposed to actual last night after the United States Supreme Court declined to intervene. According to the New York Times, there was no physical evidence linking Davis to the crime, and the Savannah constabulary applied defective line-up procedures that substantially raised the risk that witnesses misidentified Davis. So Georgia may have just executed an innocent man, or at least one defectively convicted.

Oops. (Yeah, I'm a sociopath.)


Capital punishment is one of those subjects about which my opinions outrage more or less everybody.

With two exceptions, I think capital punishment is bad policy. It is so sparingly and expensively applied that it does not deter most crimes. Or, rather, it is impossible to believe that the incremental deterrence is worth the cost. The "cost" is not just monetary, but also social. The minority who oppose capital punishment are so disgusted by it -- both in the abstract and because of the occasional execution of innocent people, by some reckoning the ultimate systemic injustice -- that we ought to ask whether the benefits (deterrence and the satisfaction in retribution) are worth the social division. Personally, I think they are not.

There are, however, those two nettlesome exceptions. I believe that the death penalty should be available for punishing people who kill law enforcement officers or hostages, and people who engage in violent insurrection against the United States.

In the first case -- killing cops, prison guards, and hostages -- you need the prospect of the death penalty to have something for negotiators to trade. Otherwise, there is (potentially) no reason for a prisoner not to kill a guard, or a trapped suspect not to shoot his way out of the house, or a kidnapper not to whack his hostage.

In the second case -- violent insurrection and terrorism -- the perpetrators have allies who might commit further violence to force the release of their imprisoned comrades. Government needs the option of killing people who have no reason to live, or whose only reason is to inspire more violence.

Of course, Troy Davis killed a police officer, so even if I had my way on the subject he would have been eligible for the death penalty. If he was wrongly convicted, then I ought to face up to the possibility that even in those limited cases in which I would make the death penalty available, our government might execute the wrong person.

Wrongful execution is tragic, no question about it. It is not necessarily more tragic than the murder of a cop, but it is right up there and in any case two wrongs do not make a right.

We know that the criminal justice system wrongly convicts many people. In the DNA era, new physical evidence has sprung something north of 100 death row inmates. Even allowing for the possibility that some of these condemned people may still have been guilty, it does seem likely that we convict a significant number of innocent people.

The question is whether the small but real possibility of wrongful conviction is a reason not to execute people, ever, under any circumstances. I think not. Many government policies kill innocent people, but we accept them because we know perfection is impossible and they advance some greater good. Innocent people die every day because the Food and Drug Administration has not approved drugs and devices that are available to patients in other wealthy and regulated countries, such as Canada, France and Germany. We accept those deaths because we -- or at least some of us -- believe that the FDA is avoiding other adverse consequences, including from drugs and devices that perhaps ought not be sold.

That said, the imperfection of government is not a reason to avoid better practices in the criminal justice system.

Which invites a question for my conservative friends: If we generally believe that government is incompetent and the heavy hand of the state inflicts a lot of collateral damage, why do you have such faith in prosecutors and police?

We ought to go to great lengths to avoid wrongful execution. Police and prosecutors have a special obligation. So do governors and presidents.

Which invites a question for my lefty friends.

If the execution of Troy Davis is such an obvious and profound injustice, why didn't President Obama commute his sentence? [UPDATE and CORRECTION: Because the pardon power does not extend to state crimes! Doh! Shoot me now.]

Release the hounds.


By Blogger pam, at Thu Sep 22, 08:26:00 AM:

Why didn't President Obama commute his sentence? The question I've asked myself and I have no good answer.  

By Anonymous JT, at Thu Sep 22, 09:11:00 AM:

I don't think cops deserve special treatment over non-police.

The simple solution to capital punishment is to do away with it altogether, and move to a place where life means life. Rape, murder, abuse of children, crimes with guns, etc. I'm not an expert by any means, but from what I understand the rate of recidivism is so high, one cannot possibly expect a brief, or even long, stint in the joint turns a person from what it is that they 'do'.

We spend way too much time and money in providing death row inmates with their full measure of due process. Use the funds to build bigger prisons, and find resources by pulling the cable tv, magazines, gyms, etc. from the prisons so they can focus on punishment.  

By Anonymous QuakerCat, at Thu Sep 22, 09:14:00 AM:

The reason President Obama did not step in is because the evidence against Mr. Davis was extremely convincing. There were over 35 witnesses to the shooting; supposedly nine of these 35 have since recanted based on the MSM reports, but this is not true. In reality, only two people have actually changed their original testimony and neither of them were asked to testify at Mr. Davis' final evidentiary hearing; despite sitting outside the courtroom when their new testimonies were being put into evidence. The belief is that the two who changed their testimonies would not have stood up in a cross examination.

As usual, Ann Coulter is on the story and this week she goes into much greater detail about how damning the evidence against Mr. Davis was and why every court (I believe over 20 judges have reviewed this case) has not over-turned the verdict. Here is the link to her article: http://www.humanevents.com/article.php?id=46347  

By Anonymous Anonymous, at Thu Sep 22, 09:19:00 AM:

Obama didn't get involved because it was a state crime and he has no jurisdiction over state crimes. As I understand it, under Georgia law, Governor Deal couldn't get involved either. The decision was left to the Bureau of Pardons & Paroles.  

By Blogger TigerHawk, at Thu Sep 22, 09:24:00 AM:

Anon 9:19 - The presidential pardon power extends to state offenses. Sorry.  

By Anonymous Anonymous, at Thu Sep 22, 09:53:00 AM:

Anon Attorney here.

"According to the New York Times, there was no physical evidence linking Davis to the crime, and the Savannah constabulary applied defective line-up procedures that substantially raised the risk that witnesses misidentified Davis. So Georgia may have just executed an innocent man, or at least one defectively convicted."

I discounted this post as soon as I finished the "According to the New York Times . . ." part of that sentence. What did DailyKos and Mother Jones have to say, TH?? Damn.

Erik Erikson rebuts at Redstate.


By Blogger clint, at Thu Sep 22, 09:57:00 AM:

TigerHawk- Can you provide a reference for a Presidential pardon covering state offenses?

The text of the Constitution doesn't seem to support that --- but that's hardly indicative of anything that the Court has reviewed more than once.

(A quick googling turns up a post by Eugene Volokh, who disagrees with you, saying a President couldn't pardon Charles Manson...)  

By Blogger Biotunes, at Thu Sep 22, 10:00:00 AM:

TH, it does, but his involvement would have smacked of the absurdity and outrage of the Terri Schiavo circus. He seems to be a man who remains open to multiple possibilities himself, and unlike most politicians probably doesn't believe that he can just step in without all the prior detailed knowledge of the case and declare his own personal view of the truth (as happened in the TS incident). The SCOTUS looked at it right? He probably felt that it fell under their jurisdiction, not his. I'm sure a lot of people are outraged he didn't step in; I tend to sympathize with that because if you don't kill someone, you always can later, but if you do, you can't take it back. But I am against the death penalty anyway for all the reasons you state (life imprisonment is a much worse punishment, and throw your exceptions in solitary most of the time if you are sure you have the right guy and really want them to pay).

No, this is just another case of people being upset that Obama did not act like a typical politician.  

By Anonymous Ignoramus, at Thu Sep 22, 10:02:00 AM:

Within hours of Georgia executing cop killer Troy Davis, Texas executed white supremacist Lawrence Russell Brewer for tying James Byrd Jr. behind his pickup and dragging him to death.

The beat goes on ...

I'm not a fan of the death penalty but suppose it has its place.  

By Anonymous Anonymous, at Thu Sep 22, 10:12:00 AM:

Obama could have held a beer summit with Davis and Officer MacPhail,unfortunately there would have been an empty chair.  

By Anonymous Anonymous, at Thu Sep 22, 10:20:00 AM:

You know, if P. Diddy, Sharpton and Sheckey said Davis was innocent, I gotta give ssome weight to disregarding the jury's decision and just letting the guy go!
More important, if they had just had more time and just a couple of additional callers, they probably would have been able to get all the witnesses to recant. After more than 20 of harassment, certainly, all the jurors should have been willing to say they would have decided otherwise had they only known that they'd be, ya know, harassed for 20 years.  

By Anonymous Anonymous, at Thu Sep 22, 10:25:00 AM:

Anon Attorney here again.

TH, I believe Anon 9:19 and Clint are correct. If I recall my Con Law I class correctly, I believe Presidential Pardon Power extends only to Federal Crimes.  

By Blogger TigerHawk, at Thu Sep 22, 10:31:00 AM:

Oops, I stand corrected. Tip o' the hat to my brilliant editors!  

By Blogger darovas, at Thu Sep 22, 10:57:00 AM:

Minor point: From what I understand, officer MacPhail was not in the line of duty when he was murdered. He was moonlighting as a security guard.  

By Anonymous Jim MIller, at Thu Sep 22, 11:01:00 AM:

TigerHawk - Studies over the last few decades, most of them by economists, have found that each execution deters between 5 and 15 murders.

Granted, this is a difficult problem, methodologically, but the evidence is good enough to persuade Gary Becker -- who is a pretty good economist -- that executions do deter a significant number of murders. Probably.

(Search on the NYT for his name, if you want more.)

I should add, out of fairness, that not all studies have found the deterrence effect -- but most recent ones have.

Oh, and this is something you would know, if you read my site regularly.  

By Blogger W.LindsayWheeler, at Thu Sep 22, 11:08:00 AM:

The death penalty became expensive because Liberals and communists in our judicial system have made it so. They have purposely created barriers and infintesmial appeals in order to discredit the death penalty system.

When any person has done a heinous crime, they should be put to death. That is what Justice is.

The problem with many people, is that they are squeamish and weak. All ahead forward. Justice has to be real in order for it to be real.  

By Blogger W.LindsayWheeler, at Thu Sep 22, 11:54:00 AM:

From Ann Coulter:
Among the witnesses who did not recant a word of their testimony against Davis were three members of the Air Force, who saw the shooting from their van in the Burger King drive-in lane. The airman who saw events clearly enough to positively identify Davis as the shooter explained on cross-examination, "You don't forget someone that stands over and shoots someone."

Two black men were harassing a vagrant---read homeless. When the cop intervened, one of the men ran. He, then turned around and fired, hitting the officer. Then, he walked up and delivered the coup-de-grae.

There were 34 witnesses NOT nine! As usual the media can not do its job but propagandize! It took 22 years to kill this cop-killer who in the course of that night committed other crimes.

My thought: Good Riddance. All mad dogs need to be put down. If you live by the sword, you die by the sword. That's God's punishment.  

By Blogger Dawnfire82, at Thu Sep 22, 11:57:00 AM:

"If we generally believe that government is incompetent and the heavy hand of the state inflicts a lot of collateral damage, why do you have such faith in prosecutors and police?"

Between the rules of evidence, requirements of jury trials, and crossing the reasonable doubt bar, the scales of justice are almost always firmly weighed in favor of the defendant. It has long been a maxim that it's better to let the guilty go free than punish the innocent. If you accept these premises, then those who are found guilty are very likely actually guilty.

This guy's supposed innocence rested on an astounding series of coincidences, irrational actions, and mistakes of memory by a bunch of people. I will be shedding no tears or doing any soul-searching over the outcome.

Aside, does anyone remember all the bitching, whining, and crying about an impending execution a few years ago of some supposedly innocent criminal who had written a childrens' book? Liberals had street protests, sit-ins, the whole 9 yards and eagerly awaited a DNA evidence review to exonerate him. Only it didn't exonerate him, it proved his guilt.

This is off topic, but I'm continually flabbergasted at leftists' horror at executing violent criminal barbarians, but don't blink an eye at the clinical termination of unborn children and in fact become enraged if you suggest such a thing might be wrong (i.e. "you just want to control women, a la Scarlet Letter").  

By Anonymous JoeInMD, at Thu Sep 22, 12:14:00 PM:

"Which invites a question for my conservative friends: If we generally believe that government is incompetent and the heavy hand of the state inflicts a lot of collateral damage, why do you have such faith in prosecutors and police?"

I reject the premise. The prosecutors and police are not the relevant part of the system. The jury of peers is.

Of course, I'll still assert that a majority of average citizens are not very bright or engaged. But I trust that the average person still has morals and judgment.  

By Anonymous Anonymous, at Thu Sep 22, 12:16:00 PM:

No death penalty. 12 hours / day of hard, productive labor. No TV, Internet / computers, no conjugal visits, etc.

After 15 years they can opt for a cyanide capsule. It ain't about the rehab--it's about retribution.  

By Anonymous Anonymous, at Thu Sep 22, 12:19:00 PM:

I am not squeamish about using the death penalty, but I also am strongly in favor of only using state power to kill those people demonstrably guilty. Generally speaking the press and the people at large only get involved in capital cases when the penalty is about to be paid, and it is very hard in the last minute rush to get the facts straight. Ann Coulter, for instance, makes several errors in her column (the air force van occupants, for example, didn't see the killer's face only his shirt color). The two possible killers may have exchanged clothes at some point, making specific identification questionable. The man executed last night was the one who turned himself in and sought a deal, blaming the other party. Does a guilty killer do that?

I don't know the facts of these individual cases, and I rely on the criminal justice system to get it right. Too often it doesn't. That's my central problem with capital punishment right now, since it is so sparingly applied.

Families of crime victims deserve justice though, and closure, and a death penalty is the way to deliver those things. We need to reform our justice system so victims get the justice they need, or else we are merely encouraging those victims to act on their own.  

By Blogger Simon Kenton, at Thu Sep 22, 02:35:00 PM:

A lot of anti-death-penalty people argue for "life in prison with no possibility of parole." They assume the prisons are non-porous, and the security adequate. But clearly, air-head governors (cf Toney Anaya of NM) commute sentences, and more horribly, guards are killed all the time (cf Thomas Silverstein). Until there's more reality to the "life in prison with no possibility of parole," the death penalty is effective, is deterrent, and is just. Matter of fact, those three statements will remain true even if life sentences become real.  

By Blogger Bomber Girl, at Thu Sep 22, 07:58:00 PM:

Happy to keep you flabbergasted, DF82. I am against the death penalty, the state's "organized" killing of individuals, when it is not a situation of war or, for example, police in the line of sanctioned duty. I am pro-choice, believing it is the woman's right to choose what do do with her body, including the fetus within.  

By Blogger Dawnfire82, at Fri Sep 23, 08:36:00 AM:

Bomber Girl: Without supplying a single coherent argument. Dogma, as expected.

Why is it not alright for the state, put together for the good of us all via social contract and granted incredible powers over most areas of life (including criminal punishment) to kill the guilty but perfectly acceptable for an individual woman (but not man!) to kill an innocent completely arbitrarily and even against the will of the other, supposedly equal, parent?

Give a clear, valid, and intellectually honest answer (i.e. without resorting to dishonest definitional bullshit, like "fetuses aren't alive;" if NASA declared tomorrow that they had found on Mars a multi-cellular entity that, under the right conditions, would develop into a sentient being, media outlets everywhere would scream "Life discovered in outer space;" the idea that the same thing in a womb, a place specifically for the creation of life, isn't "life" is definitional bullshit to wiggle out of difficult arguments) that supports both policies and I'll FedEx you a cookie.  

By Blogger Bomber Girl, at Fri Sep 23, 09:04:00 AM:

I agree with many of the comments above as it concerns the unfortunate existence of the death penalty. I am not convinced of its effectiveness, it is costly, it is irrevocable even if an error was made. And, perhaps the dogma bit - I believe it is wrong of us as a state to calculatingly plan the death of a person, even one who has committed a crime. We also have the capacity and duty as a state/public to make policy in this arena. Given the choice, I would opt for a policy which does not include the death penalty. I believe it would make us a stronger republic.

As it concerns a private matter of a woman's body, I do not believe that the state should decide the fate of an entity within a woman that cannot exist without her, at least for a relatively extended period. There are many reasons to have or not have a child - concerning health, capacity, circumstances and I feel it is inappropriate for the government to make these decisions for an individual. I am not telling you what I would choose, but I am telling you that I believe I have the right to choose, as do other woman. Personal circumstances (i.e opinion of the partner) are not inconsequential but as with so many other aspects of private life, these are best left to private choice. You and I clearly differ on the "rights" of the fetus but I do not find that intellectually dishonest on my part since the fetus does not exist without me, whereas the criminal on death row does. There are also practical matters of enforcement (is the state going to track down and confine pregnant women to force them to give birth?) and the governments efforts are best utilized elsewhere. I do not want to live in that sort of state.  

By Anonymous Anonymous, at Fri Sep 23, 11:02:00 AM:

Anon Attorney here.

@Bomber Girl,

I don't have strong feelings about choice issues and lean pro-choice, but the argument that "it's my body" is not a serious argument.

Your body is full of stuff you don't need to survive. You don't need your appendix, but a doctor won't remove it at your request. You don't need two kidneys or two lungs for that matter. You can get by nicely without some of your toes, or even a stomach. Men don't need their testicles. The list goes on and on.

The truth is that your body is not your body. The regulatory state is all over your body with respect to elective medical procedures.

The overwhelming majority of abortions are elective medical procedures performed at the request of a woman for reasons of convenience. There is no compelling reason for this medical procedure to be treated differently from other medical procedures. The catch phrase "it's my body" is drivel.  

By Blogger Bomber Girl, at Fri Sep 23, 11:19:00 AM:

Anon Attorney, if there is no compelling reason for this procedure to be treated differently than any other procedure, then why is DF82 in a huff about it? After all it's just a procedure.

More seriously, I disagree with you and am surprised that you feel your body is up for grabs for medical decisions. And you will note that my comments did include the fact that women make the choices they do for a variety of reasons, not just strictly medical ones although carrying a baby is clearly a decision with health consequences. Most women who have abortions are young, poor, unmarried - and often have used birth control. Perhaps they are being fiscally conservative so you TH commenters should applaud their choice.  

By Anonymous Anonymous, at Fri Sep 23, 12:02:00 PM:

Anon Attorney here.


I may not have been sufficiently clear. It's not that I FEEL that my body is up for grabs. I am stating emphatically that it is a FACT that my body, your body, all of our bodies are "up for grabs for medical decisions."

You don't need your appendix, but you cannot simply walk into a doctor and get it removed. Ditto your stomach. Ditto my balls, useless as they are after my vasectomy! Any doctor who cut out your appendix or one kidney without medical necessity would face severe penalties from the regulatory state.

The provision of elective medical procedures does not operate according to the "it's my body" theory. Rather, elective medical procedures are severely regulated by the state. There is no reason for elective abortion to be any different.

I did not read DF82's posts, sorry.  

By Blogger Bomber Girl, at Fri Sep 23, 12:22:00 PM:

Anon, Abortion is an approved medical procedure (with some caveats, of course, like any procedure), so I am not sure I get your point as it relates to the "off topic" topic at hand. DF82 has said that it is wrong for a woman to have one.  

By Anonymous Whitey, at Fri Sep 23, 07:00:00 PM:

Having served on three juries, including one murder and child abuse case, I have little confidence in the abilities of juries to make the fine distinctions necessary to decide whether a) the accused was guilty, and b) if guilty, whether the totality of the facts justifies the death penalty.

I am therefore opposed to capital punishment because my own experience tells me that our criminal justice system is not good enough at finding truth and making judgments. The releases due to DNA evidence justify me in this belief. The problem is systemic and will not be relieved by passing new laws or electing new politicians.  

By Blogger Dawnfire82, at Fri Sep 23, 07:46:00 PM:

You still didn't supply consistent arguments. You just restated your beliefs in more detail. That gets us nowhere.

For instance... *ahem* "it is costly, it is irrevocable even if an error was made. And, perhaps the dogma bit - I believe it is wrong of us as a state to calculatingly plan the death of a person, even one who is not yet born. We also have the capacity and duty as a state/public to make policy in this arena. Given the choice, I would opt for a policy which does not include abortion. I believe it would make us a stronger republic."

I changed what, three words? And it can still apply en totale to an opposite of your point of view.

Re: "I am not convinced of its effectiveness"

A little off-topic, but anyway: Visit China. It's absolutely effective. Ours isn't so much, because it's a paper tiger. Even if a heinous criminal is put on death row, they usually have many years of life and free food, cable, books, healthcare, and even internet access ahead of them on the taxpayers' dime (possibly more years of life than if they had remained free and lived as criminals). The Chinese can try and execute you in three weeks, if it's obvious you did what you did. And they behave accordingly. Violent crime in China is absurdly low.

"DF82 has said that it is wrong for a woman to have one."

I said no such thing. I said (or implied, anyway) that supporting the arbitrary destruction of unborn children out of convenience but opposing the socially calculated destruction of vicious criminals is inconsistent. The former, innocent life is destroyed on no more than the prospective mother's whim, and this is held to be a sacred right for the mother, but the latter, culpable life is worthy of preservation at public expense no matter how many arsons, rapes, murders, and tortures for which it may be responsible; and moreover, the criminal is supported in part at the cost of his victims (who presumably pay some form of taxes).

This is absurd. It is the result of our twisted brand of partisan politics, not reason. And to resolve the contradiction, people who hold these beliefs have arbitrarily decided that fetuses (with recognizable human forms, heart beats, brain waves, and masturbatory urges) are "just clumps of cells."

Any attempts to point out this ridiculousness ends like it has here; accusations of trying to oppress women. You yourself have done exactly that, indirectly. I never once advocated a policy in this discussion, but you have at least twice said that I have. Incorrectly, since I believe abortion should be legal and even that it is justifiable on personal grounds. I also believe that people should be honest about what they're doing. But rather than admit that they're basically killing babies for selfish reasons, they'd rather slander me and those like me as evil would-be overlords.

Anon Attorney seems to handling the logic of the "it's my body" rule, so: "since the fetus does not exist without me."

It doesn't exist without the father, either. But the pro-choice crowd doesn't give two shits about that. He gets absolutely no say in the matter, even if a woman deliberately gets pregnant against his wishes, lying about birth control or sabotaging contraceptives or even raping him. How's that for justice?

This argument devolves into a circular; "the woman can choose because she's a woman." I could just as easily invent a rule for my newly independent society that "the man gets to choose because he's a man." And circular arguments are invalid.  

By Blogger Dawnfire82, at Fri Sep 23, 07:47:00 PM:

"There are also practical matters of enforcement"

Enforcement of what? Again, you've put words into my mouth for your own convenience. My entire argument is about inconsistent ethics.

I believe in allowing the killing of unborn babies, even though they don't deserve it, for social convenience (because regulating individual cases and motives is a fool's errand, and blanket bans are bad policy), and I also believe in the killing of vicious criminals because they deserve it.  

By Blogger Bomber Girl, at Fri Sep 23, 08:18:00 PM:

DF82, somehow your comments above "...in fact become enraged if you suggest such a thing might be wrong"....and "killing an innocent arbitrarily" somehow sounded like you felt it was wrong. My misconception, obviously.

You believe in allowing abortion, apparently, so I don't know why we are arguing since we arrive at the same place. We have different beliefs on why we think it is acceptable. You claim I am inconsistent and you are not since you believe that a fetus and a person are equivalent in all aspects. I don't.  

By Blogger Bomber Girl, at Fri Sep 23, 08:29:00 PM:

no pun intended.


By Blogger Bomber Girl, at Fri Sep 23, 08:37:00 PM:

which makes me think you are the inconsistent one, DF82.  

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