Time is Running Out (or rather it was...Stay Granted!)

I don't have nearly as much time as I'd like to dedicate to the continuing coverage of the race to stop the execution of Troy Anthony Davis, so I'm going to do a quick and dirty link roundup. Ultimately, I'm very afraid that this state is going to execute an innocent man tomorrow night. I wish I could get out of work in time to go protest and be part of the prayer vigil, because every single one of us who thinks this is a travesty of justice needs to stand up and be heard.

I previously posted about it here and here. Andy at Fresh Loaf has a writeup, as does South Georgia Liberal. Button Gwinnett has a post about the recanted eyewitness testimony (and he asks the important question--why would such a witness recant years later unless it was true?), and Flack over at Tondee's Tavern has more today as well. I commented at Tondee's on the procedural history of the habeas petition, including the judge rendering his decision to deny the petition without benefit of either an evidentiary hearing to hear testimony from the recanting witnesses or even a reply brief from the petitioner. The AJC is covering the proceedings before the state parole and pardons board considering a request for clemency, and also has John Lewis' statement before that board. They also had guest opinion from a retired FBI director raising serious concerns about the AEDPA in cases like this. Here's the latest results from a Google blog search about this case, which is getting considerable attention as the death knell approaches.

And here's where I pontificate just a little bit. I firmly believe that the worst thing our government can do is kill an innocent person without justification. Be it in war, in law enforcement, in the criminal justice system, or in any other setting in which the state has the power and ability to take someone's life, that result is to be avoided at all costs. Most of the other situations you can envision such as a criminal suspect who appears to be brandishing a weapon, or a civilian on the ground who may or may not be a suicide bomber, involve snap decisions and we have to accept that sometimes they will result in mistakes. It is still a terrible thing, but it is excusable.

Execution of a person convicted of murder in contrast is not a snap decision, it is a long and methodical process and there is no excuse or room for judgment calls that may be mistakes. We usually have well over 10 years, and sometimes 20 or more, to ferret out any errors of criminal procedure or to find any new evidence. We have all the time in the world to redress whatever wrongs were committed at the trial court level and to consider things like recanted testimony, DNA evidence, and changes in available methods of conducting execution. And most importantly, we don't have the chance to fix this mistake if the convicted is executed before we consider all possible reasons why he shouldn't be.

So why do the law and order types typically resort to methods of limiting or eliminating appeals for such convicts as often as they possibly can, to raising the procedural bars and the burden of proof to impossible levels, and to push whenever possible for a speedy execution rather than a new appeal when a claim of new evidence or actual innocence is raised? I understand the argument that our criminal justice system needs finality of judgment to function properly. I even understand that many families of victims want to see the case end with the death of the person who they and the criminal justice system have deemed responsible. But neither of those concerns holds a candle to avoiding the worst thing that our government can do: premeditatedly killing someone that is innocent and does not deserve to die.

I do not understand why those who support the death penalty want to rush these cases through the appellate process, limit the availability and number of appeals, and generally just get the execution over with even if it means ignoring possibly meritorious claims of procedural violations or even actual innocence. What are they afraid of? If you believe that the executions are just and fair then why the adversity to having the entire process examined and double-checked for accuracy before taking the one step that can never be undone?

Ultimately, far too often inmates on death row become nothing more than political and philosophical footballs. The people arguing about them stop thinking of them as a person and dig in their heels in the usual positions over whether they want to be seen as tough on crime or a champion of civil liberties. The judges and justices who consider the appeals seem less concerned with the particular facts of the case and more concerned with either examining potential unresolved legal questions or rejecting appeals because they don't want to disturb the decision of a lower court. The legislators who change the procedure for such appeals think in terms of overburdened legal systems and the political fallout of their votes rather than how best to ensure that we have a fair and just legal system. And governors who consider clemency petitions know that most in the public will only care about the words granted or denied and not the particular facts that should or should not cause the governor to exercise clemency. In what is perhaps the most egregious example, in 1992 President Clinton allowed the execution of a mentally retarded person to proceed in Arkansas in order to establish his law and order cred with the voting public. I hope the knowledge that he let a retarded person die made him every bit as sick to his stomach as I will be if we execute Troy Anthony Davis tomorrow night.

Update: The AJC reports that the state parole and pardons board has granted a 90 day stay of execution to allow time for the board to hear all of the evidence about Davis' actual innocence claim. This is fantastic news, though obviously not a final determination as to whether the execution will proceed but merely a little more time and hopefully a fresh look at the new evidence. I'm happy the board did the right thing.