Mark Osler posts, "Troy Davis and constitutional virtues," at CNN. He's a professor of law at the University of St. Thomas Law School in Minnesota, and a former federal prosecutor. Osler is also the author of Jesus on Death Row, published in 2009.
When I was a federal prosecutor, I had some sleepless nights. On a few occasions, it was after I had lost at trial; I would lie in bed and think of what I did wrong.
Other times, though, my sleepless hours came after I had won a trial or gotten what I wanted at sentencing. The haunting question was always the same: What if I was wrong?
Some might consider that admission a sign of weakness or a lack of resolve, but in retrospect, I see those nights as ones in which I was fully human. The cost of being wrong as a prosecutor is almost unthinkable. This is especially true in a capital case, such as the recent and tumultuous end game in the Troy Davis case in Georgia. Davis' final appeals to the state of Georgia were denied, despite the fact that seven of the nine witnesses against him had recanted their stories. His last hope, the U.S. Supreme Court, denied his application for a stay of execution on Wednesday night, sealing his fate. He was executed shortly after 11 p.m.
The meaningful cases in law almost always involve a clash of virtues. School prayer cases, for instance, sometimes balance two virtues reflected in the Constitution itself: The guarantee of free exercise of religion, and a bar on the establishment of a state religion.
And:
The first signer of that Constitution was George Washington, who then lived out the virtues of that Constitution as president. He was literally the commander-in-chief; when the Whiskey Rebellion arose in western Pennsylvania, he personally led the army to quell the rebels, astride a white horse. Just as importantly, living out the constitutional virtue of mercy, he pardoned those rebels who were sentenced to hang for treason.
The Troy Davis case shows us a truth: We have wandered too far from our own best virtues.
If we are to err, let it be on the side of deliberation and mercy, rather than the unsettling finality we have seen pursued by the state of Georgia. Should we choose those better virtues, we might all sleep better.
More on Osler's book, at the link.
Andrew Cohen posts, "The Death of Troy Davis," at the Atlantic. Here's an extended excerpt:
In a perfect world, the execution of Troy Davis Wednesday night in Georgia would herald a new era in America's grim history with the death penalty. It would shake the criminal justice system out of its self-satisfied torpor and force government and the governed both to face the ugly truth about capital punishment in the United States in the twenty-first century. It would propel this question to the forefront both of the nation's political debate and the Supreme Court's docket: How many exceptions to the rule must we allow or tolerate, how many legitimate questions must linger beyond the death chamber, before we either fix the system or end the experiment?
When the state kills those whose guilt is in serious doubt, or when the state kills those to whom it has not given fair justice, it doesn't just perform an injustice upon the individual, the rule of law, and the Constitution. It also undermines the very legitimacy of the death penalty itself, for its continuing use as a sentencing option derives its civic and moral strength mostly from the fiction that it can be, and is, credibly and reliably imposed. Once our confidence in that credibility is shattered, as it should be now that Davis is gone, all that's left of the death penalty is state-sponsored retribution and the hangman's noose.
In a perfect world, the haunting execution of Troy Davis would spawn vital reforms to the clemency and parole process in states like Georgia and Texas, where such proceedings routinely make a mockery of the idea of reasoned justice. It would light a fire under local prosecutors to ensure that witnesses in capital cases are not coerced by law enforcement officials. It would cause jurors to think twice about rushing to judgments. It would force a supine Congress to reevaluate its so-called "effective death penalty" statute, which neuters legitimate post-conviction appeals. And it would at long last shame state court judges to cast off the yoke of their campaign contributors, who push them to be "tough on crime" at the expense of fealty to the Bill of Rights.
Georgia says that it has given Davis more due process than any single man would have a right to expect. Up the state appellate ladder and down again. Up to the Supreme Court and back. Hearing upon hearing. Brief upon brief. At some point, Georgia says, there has to be finality in capital cases. At some point, the justice system has to accept the work of judges and juries and impose the sentence that was initially given. There is truth to all of this. And there is both rhyme and reason to many of the rules which govern appellate law and practice in capital cases. But those rules almost always place the state's interest in finality ahead of the condemned's interest in accuracy. "Enough is enough" is a great campaign slogan -- but it's hardly a worthy motto for a civilized nation's death penalty scheme.
"The Slow Death of Certainty. Will the Troy Davis case be the one that finally turns America against the death penalty?" is the title of Dahlia Lithwick's post at Slate.
Whatever else it may come to mean, the execution of Troy Davis by the state of Georgia can stand for the proposition that the death penalty in America is finally dying. That's because the fight over the death penalty is now happening in public, at the grassroots, and with reason triumphing over emotion. In the debate over capital punishment, the desire for certainty is finally beginning to carry as much weight as the need for finality. Americans are asking not so much whether this particular prisoner should be killed as whether this whole capital system is fair.
And:
Advances in science and the empirical research on erroneous convictions are only going to create more doubt in the future. There is an almost unlimited supply of prosecutorial error and misconduct to draw on, and as it grows so will public uncertainty. And as the new media and social media broaden the debate about the death penalty, the folks who are leery of that uncertainty are ever more likely to be heard. America's conversation over capital punishment has long been weighted toward the interests of finality. But there is a growing space for reason and doubt and scientific certainty. It's hardly a surprise that prosecutors, courts, and clemency boards favor finality over certainty. That—after all—is the product they must show at the end of the day. But maybe the surprise, and the faint hope, of the massive outcry over the execution of Troy Davis, is that the rest of us have found a way to demand more from a system that has—for too long—only needed to be good enough.
At the Wall Street Journal Law blog, Nathan Koppel posts, "Will the Davis Execution Fuel Opposition to the Death Penalty?"
Let’s take one more moment to digest the execution last night of Troy Davis.
The level of interest that the case generated was striking — political figures, celebrities, and anti-death penalty opponents worldwide rallied to Davis’s defense, pleading in recent days for Georgia to spare his life.
The question now is whether the debate over the Davis execution will fuel a broader debate about the merits of the death penalty?
And:
This Salon article tackles the question of what the Davis case will mean for the broader death-penalty debate. In short, the piece expresses doubt that the Davis case will move the needle of public opinion about capital punishment. Gallup has found that support for the death penalty has remained consistent for the past decade, with Americans favoring it by a more than two-to-one margin, Salon reports, noting, however, that the level of death-penalty support has declined from the late 1980s and early 1990s, when it peaked at 80 percent.
“The reality is that we have seen other cases like Troy Davis’ before,” the Salon piece posits, “and it will probably take a lot more of them before Americans ever give up on the death penalty for good.”
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