This column originally appeared via Sojourners‘ God’s Politics blog on Friday, September 16:
By Maurice Possley
“Perhaps the bleakest fact of all is that the death penalty is imposed not only in a freakish and discriminatory manner, but also in some cases upon defendants who are actually innocent.”
– U.S. Supreme Court Justice William J. Brennan, Jr., 1994
On Monday (Sept. 19), the five members of the Georgia State Board of Pardons and Paroles will meet to consider whether to commute the death sentence of Troy Davis to life in prison or allow him to be executed on Sept. 21.
With more than 1,260 men and women executed in the United States since the death penalty was restored more 30 years ago, pardon boards across this country have routinely addressed pleas for clemency and routinely have rejected them, allowing executions to go forward.
Indeed, as Davis’ case has becoming increasingly more public, the machinery of death moves on in other parts of the country.
On Thursday, U.S. Supreme Court ordered a last-minute stay that blocked the execution in Texas 0f Duane Buck, within hours of his walk to the execution chamber. The next scheduled execution in Texas is Sept. 20 for Cleve Foster, who was convicted of murdering a woman.
On Sept. 21 — the day Davis is now set to die — Lawrence Brewer is scheduled to be executed in Texas for the infamous dragging death of James Byrd Jr.
And on Sept. 22, Derrick Mason is to be executed in Alabama — although the judge who imposed death sentence on Mason now says he made a mistake and believes the death sentence should be commuted to life in prison without parole.
Other than the case of Brewer, notorious because he was one of three white men who killed a black man in particularly cruel and gruesome fashion, it’s unlikely that most of the general public has been particularly aware of the cases of Buck, Foster or Mason.
So what makes the Davis case stand out from most other death penalty cases?
Not about whether the death penalty is the appropriate punishment for Davis or has been correctly applied.
The doubt raised in Davis’ case is whether he committed the crime at all. And those questions about his guilt have prompted hundreds of thousands of people to raise their voices in opposition to his execution, most recently former FBI Director William Sessions who, in an op-ed in the Atlanta Journal-Constitution Friday, called on the Georgia Board of Pardons and Paroles to commute Davis’ sentence to life in prison.
Over the last 30 years, most death penalty cases have worked their way through the courts and into the execution chamber with little publicity, notoriety or public outcry, beyond that of the people directly affected by the crime — relatives and survivors of the victims, family members of the accused and the assorted participants in the legal system, such as judges, police officers, defense attorneys and prosecutors.
From time to time, however, certain cases have taken on a more dynamic persona. Karla Faye Tucker was executed in 1998 — the first woman to be put to death in Texas — amidst national and international pleas for clemency largely based on her gender and conversion to Christianity.
Similarly, Stanley “Tookie” Williams engendered a groundswell of opposition to his 2005 execution in California because of the positive work he had done after being convicted in the murders of four people. While in prison, Williams wrote children’s books with anti-gang and anti-violence themes.
Still, the issue in Tucker and Williams’ cases was rehabilitation, not innocence.
Perhaps the last high-profile case that involved serious claims of innocence was that of Gary Graham, who was executed in Texas in 2000 despite new evidence suggesting that the sole eyewitness who identified him was wrong.
There have been 1,267 executions in the United States since the death penalty was re-instated in 1976, after having been struck down in 1972 by the U.S. Supreme Court.
The death penalty returned in 1977 when Gary Gilmore was executed by a firing squad in Utah.
Sine the reinstatement of the death penalty 34 years ago, 138 people have been released from Death Row after their innocence was established or their guilt could no longer be proved.
At the same time, serious questions have been raised about the guilt of a number of defendants who were executed, including Cameron Todd Willingham, Carlos DeLuna and Ruben Cantu in Texas, Leo Jones in Florida, and Larry Griffin in Missouri.
There are now more than 3,200 men and women on death row in the United States and the population continues to grow, although at a much reduced rate over the past 10 years.
The number of states that execute has dropped by three, with New Mexico, New Jersey and Illinois outlawing the death penalty.
Executions nationally have dropped gradually over the last several years—from a high of 98 in 1999. There were 46 executions in 2010 and so far in 2011, there have been 33.
“The decline is a breakthrough in the public’s consciousness that mistakes are made and that it’s hard to tell in which ones the mistakes mean innocence,” says Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C.
Davis was convicted in 1991 of the 1989 shooting death of an off-duty Savannah police officer who was working as a security guard in a shopping center. Davis was found guilty and sentenced to death on the basis of witnesses and informants.
There was no physical evidence linking him to the crime.
Over time — and three postponed executions — Davis’ defense has produced evidence that six of the nine witnesses have recanted their testimony. Still it was not enough to persuade a Georgia court to grant him a new trial.
Davis has received support from such influential forces as Pope Benedict XVI, Archbishop Desmond Tutu and former President Jimmy Carter as well as from more than 500,000 people who have signed petitions urging the pardons board to spare his life.
Davis is no stranger to the pardons board — he has appeared before it twice before. But if there is a breath of hope for Davis, it is that the five-member pardons board has three new members who have not voted on his case before.
He needs three votes for his death sentence to be commuted to life without parole. Such a vote would not mean his immediate release. But it would give his defense team more time to continue their search for evidence of his innocence.
When the board convenes, they will have Davis’ life in their hands. And as they consider whether to send Davis to the execution chamber, perhaps they should consider the case of Earl Washington Jr.
Washington was sentenced to death in Virginia in 1984. Ten years later, when preliminary DNA tests raised doubts about his guilt, then-Gov. Douglas Wilder commuted the death sentenced to life without parole.
In 2000, 16 years after Washington was convicted, more sophisticated DNA tests exonerated him and he was released.
Because he was still alive.