Like many people I’ve been fascinated and horrified by the case of Troy Davis. Davis was found guilty of the 1989 murder of an off-duty policeman, who had gone to the defence of a man being beaten. Davis was convicted in 1991 and sentenced to death. After 20 years on death row, and three previous execution dates, all deferred, he was finally killed by the US State of Georgia on the evening of 21st September.
That much seems uncontroversial. The rest is highly contested. Since his conviction, which was based solely on eyewitness testimony, and not on any DNA, ballistic or other forensic evidence, seven of the nine witnesses have changed their stories, and one of those remaining has been named as the killer by other witnesses. Eyewitness testimony is generally held to be unreliable, with some states such as Maryland stating it cannot be the only basis for a conviction in a death penalty case; in this instance it appears particularly flawed (see here; and here). As has been suggested, the need to prove guilt ‘beyond reasonable doubt’ holds only for the original trial; after conviction the onus is on the one convicted to demonstrate that the verdict was flawed. Despite the uncertainties around the case, this was clearly not enough for the Georgia State Board of Pardons and Paroles, who refused to commute the sentence, or earlier appeal courts. The US Supreme Court delayed the execution for a few hours to consider, but did not overrule it, and President Obama’s office said he did not involve himself in individual cases. While Obama’s point is constitutionally correct, as he has no power to overturn state rulings, he could have shown moral leadership. On this, as with his speech to the UN on Palestine on the same day, he is surely acting with at least one eye on his re-election (On the case see also here, here, here and here).
Several questions remain. Given the uncertainties, it is worth asking what would have been enough? Certainly the voices of concern across the world, from senior statesmen and women to ordinary citizens, put considerable pressure on the State of Georgia. But if it was unwilling to be persuaded in any event, then what does that say about its judicial process? And if it was willing, what more could Davis’s defence team and the campaign have done? Jonathan Simon has suggested that what has happened in Georgia (and Texas) has got to the point where a boycott of these states is justified.
One of the more curious responses to the widespread opposition to his execution was that it came from people who were opposed to the death penalty. The suggestion is that they would have opposed this execution even if they were convinced of Davis’s guilt. There may be many people in that position: opposition to the death penalty in all instances is a widely held position, and most nation-states, and certainly most liberal democracies, have moved to that position. But it is obviously possible to be against the death penalty generally and to have serious doubts about the guilt of this particular person. Indeed, one of the strongest arguments against the death penalty is that because it is so final, and the consequences of a miscarriage of justice so extreme, that guilt must be proved to such an exacting degree that almost no case could ever meet such conditions.
In The Atlantic Andrew Cohen puts it this way:
In the modern era of capital punishment — since the Supreme Court’s decision in Gregg v. Georgia – three main camps have emerged. First, there are those who are for the death penalty all the way; the ones who lament the time and money it takes from trial to execution. Then, there are those who are against capital punishment all the way; the ones who believe that the state should never be in the business of killing its own citizens. And between the two solitudes, there is a vast middle; those who believe that there is a place for the death penalty, but only if it can be administered fairly and accurately, free from the sort of arbitrary and capricious decision-making that pushed the justices to do away with it in the first place in 1972 in Furman v. Georgia.
Let’s put this case in the form of two questions. Did the person who killed the policeman deserve a death sentence? Did Troy Davis commit that crime? Only a clear, categorical, no-qualification ‘yes’ to both questions can lead someone to think that the execution was justified. Any other combination of answers, from a clear-cut ‘no’ to any equivocation on either, lead to the conclusion that the execution was unjustified. It is the combination of opposition to the general rule, and doubt about the particular instance, that led to the protests against the killing of Troy Davis.
And yet, that killing was already plural. The continual scheduling and suspension of execution is arguably a ‘cruel and unusual punishment’—in one previous instance Davis was given a final meal; in other cases prisoners have been strapped down awaiting death before returning to their cells (see here). Mock executions, where a prisoner thinks they are about to die, are generally seen as a form of torture. In his twenty years on death row, Davis died, in his expectation at least, long before September 21st 2011.
To be against the killing of Troy Davis may have been a convenient instance of a case where the doubts seemed, to those of us outside the judicial process, to be so grave that going ahead clearly demonstrated the perversity of state execution. Critics might say that such efforts should be directed—if the opposition is genuinely to the death penalty generally—to less public cases, ones where the guilt is more clear-cut, perhaps where the prisoner has, themselves, accepted guilt.
Leaving aside the fact that there is plenty of such opposition in very many cases, without the media exposure of this one, this last point raises another complicated question. Plea bargaining tends to mean that an admission of guilt may be enough to change a death sentence to a life sentence. And yet the innocent are caught in an effective double bind. To reduce the likely sentence if convicted they should accept their guilt; but this of course ensures their conviction. To insist on their innocence means that, if found guilty, they will be treated more harshly. Not only are they wrongly convicted, they are more likely to end up on death row.
The United Kingdom, unlike the United States, no longer has the death penalty, although there is an ongoing campaign to have it reintroduced (see here). The harshest penalty that can be laid down is a life sentence without the possibility of parole, a so-called ‘whole life’ tariff. This is the oft-vaunted alternative to the death sentence in the US. Most of those serving such terms in the UK are people where guilt seems well established: Ian Brady, Rosemary West, Donald Nielson, and others. The only one known to have been given such a term and still protest his innocence is Jeremy Bamber, in a case that has long fascinated me.
In 1986, Bamber was convicted of killing five members of his family, and given a five life sentences, with a recommendation to serve at least 25 years. In 1994 then Home Secretary Michael Howard said this would be a ‘full life’ term meaning he would never be released. I am not sure how much Bamber’s refusal to admit guilt, and therefore refusal to show remorse affected that decision. Never being released means no possibility of redemption, no possibility that punishment through imprisonment could address their behaviour. The involvement of the Home Secretary in setting such terms has now been removed, but Bamber’s appeal against the sentence was not successful (R v. Jeremy Bamber). That case is now going to Europe. Granting Bamber—or any other prisoner—the possibility of parole does not mean that it is actually granted. (In any case, parole is very difficult to achieve unless guilt is accepted. For a discussion, see here.) So today, 25 years since conviction, he remains in prison.
The murders happened in Tolleshunt d’Arcy, which was about 10 miles from where I was living at the time; Bamber today is in Full Sutton prison in York, which is about 10 miles away from where I now live. The case is very complicated, and I doubt anyone not directly involved in the details can know one way or the other. The only person alive who knows what happened is Bamber himself (if he was not the murderer, he was the key witness). What does seem clear is that there are a lot of unanswered questions, and, at best, police mishandling of evidence. Even police and politicians have said the investigation was badly handled. Bamber has had the case reviewed once before (R. v. Jeremy Nevill Bamber), when the conviction was upheld. But new evidence, and claims of obstruction by the police and prosecutors in allowing his defence access to all available materials, means that he is still campaigning against his conviction. For these reasons, a campaign is being undertaken to try to get the case reviewed. Details can be found here.
The questions here are similar to those of Davis. Does a person who killed five members of his family in order to receive an inheritance deserve a whole life sentence? Did Jeremy Bamber commit that crime? Again, only an unequivocal ‘yes’ to both can lead to the sense that it is right for Bamber still to be imprisoned. A ‘yes’ is much easier to reach in both instances than the parallel questions for Davis. And yet, if there is even the slightest doubt with the latter, a thorough review of the case and all available evidence seems the only legitimate response. And with the former, consider that Bamber was in his twenties when convicted, and has only just turned fifty. That’s a lot of life left.
In The Atlantic piece, Cohen discusses the ongoing Duane Buck case in Texas where a stay of execution has been granted by the Supreme Court because of racial bias in sentencing. Buck, too, had eaten his last meal and was praying in his cell when told the execution was delayed. Cohen tackles head on the claim that this is fairer to the criminal than the victims. He says he was regularly asked something along these lines.
Why should I care about the procedural technicalities of this guy’s sentencing case when his guilt is not in doubt? Since he’s guilty of murder, how fair does his legal treatment really need to be? People of all political stripes asked the same questions… The guy did it. He is getting more justice than he gave to his victims.
His response is telling:
That last part is true. Of course, defendants like Duane Buck get more justice than their victims. That’s the whole point of our criminal justice system—and of the rule of law. That’s why we outlaw lynching, why angry mobs can’t storm jailhouses, and why we have judges. It’s why we have a Constitution. In America, we aim to give the guilty more justice than they deserve. We do so because of how that reflects upon us, not upon how it reflects upon the guilty. And when we fail to do so it says more about us than it does about the condemned.
His point is that the justice system says as much about us as it is about the victims and perpetrators of crimes. Good procedures matter as much for those that are definitely guilty as for those who are possibly innocent. And they should apply to all those whose life is taken away by the state, whether killed or imprisoned without any possibility of parole.
(I’m grateful to friends and colleagues who read an earlier version, and pointed me to some of the links.)