The future of the death penalty

Dahlia Lithwick writes that she thinks/hopes that maybe the Troy Davis case will start to really accelerate opposition to the death penalty:

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…

Here’s why I think all this matters: In a thoughtful essay posted earlier this week, my friend Andrew Cohen writes about why it matters that the death penalty be administered fairly. He asks why “the ‘law’ in capital cases now is mostly used as a weapon” and wonders how it has come to pass that in declining to revisit the claims of actual innocence in the Davis case, Georgia was forced to say “that its interest in the finality of its capital judgments is more important than the accuracy of its capital verdicts.” That question—why and how many of us are willing to tolerate error to achieve finality—is the real dispute here. And it’s why, in the Davis case as in almost all death penalty cases, the two sides have talked past each other for so long…

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.

Then, in her own FB feed, she writes that law professor and frequent attorney for those on death row, David Dow, “brilliantly rebuts” her own argument.  It’s good, but I’m not sure he does.  Dow:

Death penalty supporters endorse an immoral punishment, but they are not morons. They know human beings make mistakes. If someone (a) knows human beings err, and (b) supports the death penalty anyway, we can safely say that person has determined that the cost of taking an innocent life every now and again is a price worth paying.

Be careful about rising too fast to argue with that calculus, because at some level we all believe it.  That’s why we support the building of interstate highways, space exploration, and search for alternative fuels, not to mention urban warfare in Afghanistan, even though we know with actuarial certainty those government programs will cause innocent people to lose their lives. What’s different about the death penalty? Morally speaking, the answer is probably nothing.

True, but I think Dow gives people way too much credit. Most people don’t actually consider these trade-offs and decide they are fine with it.  Rather, they ignore that these actually are trade-offs.  Hello, willful ignorance.  I think when people actually start to grapple with these trade-offs, minds to change.  That said, what really lost me, was Dow’s concluding sentence:

Davis didn’t save either of them [two recently executed men], and his death won’t save anybody else either, because you can’t change a death penalty supporter’s mind with posterboys.  America will indeed abandon capital punishment, but it won’t happen until the majority believes that killing even an unquestionably guilty murderer is wrong.

I heartily disagree with that.  Rather, I think America will abandon capital punishment when a majority believes that we cannot actually kill the unquestionably guilty without also erroneously killing the questionably guilty. I’m sure there’s a lot like me who might actually support a mythical death penalty that only was used on the 100% evil and 100% guilty, but that world does not exist.

Might as well throw in here the time trend on this via Gallup:

Trend: Are You in Favor of the Death Penalty for a Person Convicted of Murder?

We’re still a long way from Americans favoring eliminating the death penalty, but I do think that cases like Troy Davis add up to a steady drip, drip, drip (and maybe even a tiny little flow in the Davis case) that erodes support for the death penalty.

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About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

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