By Louis A. Ruprecht Jr., Georgia State University
At the same time that the US Supreme Court issued a second stay of execution in one week in the state of Texas, it permitted the execution of Troy Davis to go forward in the state of Georgia. And at 11:08pm on Wednesday, September 21st, some four hours after his scheduled 7:00pm execution time, Troy Davis was indeed killed by a state-administered lethal injection.
The range of emotions and the swirl of debates generated by this confusing juxtaposition are layered and complex: a white Army recruiter accused of rape and murder is spared, at least for now, while a black man accused of killing a police officer is not. Both men insisted on their innocence throughout their circuit of appeals.
I mention skin color because it is a part of the story of state-administered death no matter how we try to discuss the thing. The very fact that our system is organized to ensure that race is not a factor speaks eloquently to the fact of race’s inescapability in our judicial system, especially for the young black man.
Yet I am less concerned with racial justice than I am with procedural justice. The manner in which Troy Davis met his end raises new and different questions about the death penalty in the United States.
On September 21st, Troy Davis had his second purported his last meal. He elected to have the same meal that his fellow death row inmates had–not because he did not expect to be executed, but rather as an expression of solidarity with them. The execution of a person with a strong case for clemency is, as one can imagine, an emotionally devastating event for that state’s death row population. There is a hopelessness in the air for weeks after.
Troy Davis was permitted to spend six hours with his family on the day of his scheduled death, a final private conversation. He was then given some private time to himself and even permitted unusual access to music. He had his final meal between 4:00 and 5:00pm, then was prepared for death.
But at the eleventh hour, and for the second time in his life, Davis’s execution was put on hold as the US Supreme Court asked to review the evidence one more time. No doubt his hopes soared; certainly the hopes of the crowds gathered in vigil in Atlanta and Jackson, Georgia did. Those hopes were dashed just a few hours later when the High Court decided not to intervene in Davis’s case, and so he died just a few hours after he had expected to die when he awoke Wednesday morning.
This is all very unusual.
The fact that Troy Davis was convicted and sentenced to death twenty years ago in 1991, the fact that he suffered the double jeopardy of two last meals in his strange life behind bars, and the fact that his execution was once again delayed at the very last moment are all facts to which the vast majority of Americans across the political spectrum are opposed.
Supporters of the death penalty consider this endless round of appellate review excessive, almost as if we care more for the rights of the accused than we do the victim. Opponents of the death penalty consider this cruel as well as unusual, and thus a violation of the 8th Amendment to the US Constitution. No one can be happy with the manner in which we administer the ultimate penalty in this country.
But the fact is that we will never be able to administer it any other way. The US Supreme Court has consistently held that the penalty of death is qualitatively different than any other kind of penalty and therefore subject to review unlike any other kind. Any prisoner sentenced to death has automatic rights to appellate review at multiple levels. Any prisoner sentenced to death in this country will languish on death row for a decade or more; will experience the surreal days and nights in which scheduled death dates come, are postponed, and return. As unusual as Troy Davis’s case may seem to us, it is in fact rather normal.
The simple fact is that, given the constitutional commitments to individual liberty and due process of law—commitments for which we are justly proud—we will never be able to administer the penalty of death in the way other countries that have it—like China, Iran and North Korea—can. They do it fast, with little if any subsequent review.
When I first became interested in the death penalty some decades ago, a famous case of serial execution took place in China. As a way to deal with the escalating problem of highway robbery, the government took 6000 men accused of the crime and shot them all together in a single morning. Highway robbery decreased dramatically.
The point is that we can never administer the death penalty in that way. That is a very good thing; it is what makes us modern. It represents what is best and noblest in our system of justice. And it is in this sense that the death penalty is practically incompatible with the norms and the systems of justice that have emerged in Europe and the US in modern times.
The only reason Socrates had time to talk with his friends while awaiting execution was the fact that Athens was celebrating a religious ritual during which the city was not permitted to kill anyone. Had he been sentenced to death at any other time, he would have been killed immediately. When Jesus was brought before the Roman civil administration in Palestine, he was tried, sentenced, tortured and killed all in a single afternoon. That pre-modern form of state-sponsored killing is no longer our own.
We are trying, then, and failing, to administer a penalty that made sense in other times and makes sense in other parts of the world, as if still made sense in our own. The indignities and inhumanities that are born of those paradoxes and contradictions came into very sharp focus under some very harsh light last week.
And it is in this sense that some of us may hope, however cautiously, that Troy Davis did not die in vain.