Capital punishment, the USA and Troy Davis

An older white woman stands holding a poster that says 'Not in my name' in capitals.

An older white woman stands holding a poster that says 'Not in my name' in capitals. Image from the javacolleen Flickr stream.

In many states of the USA, one of the penalties available for first degree murder* is death. While the USA is far from the only country to retain the death penalty, it is the only western country to still have it,** and to that extent, it appears to be a bit of an anomaly.

In this context, it’s useful to know something about the relevant international instruments.

The Universal Declaration of Human Rights, adopted by the United Nations in December 1948, contains a right to “life, liberty and security of person” (Art 3), but no explicit rejection of the death penalty. This was hugely political: a number of nations (including the USA) did not want the international community poking its nose into their business.

This is reflected in international treaties from the 1950s and 1960s, such as the European Convention on Human Rights (Art 2) and the International Covenant on Civil and Political Rights” (Art 6). These acknowledged that some countries retained the death penalty, and made it clear that such a sentence could be carried out only in certain circumstances.*** Article 6 of the ICCPR also represents an acknowledgement that the international community would strive for the abolition of the death penalty.

This idea was taken further in the 1980s with the Second Optional Protocol to the ICCPR. Signatories to that Protocol agree that the death penalty in their country is abolished and will remain abolished.****

However, despite this general (and growing) international opposition to the death penalty, it is still going strong in most states in the USA. Since 1977, when the US Supreme Court held in Coker v Georgia 433 US 584 (1977) that the death penalty was unconstitutional when imposed for the rape of an adult woman, it is probably only available for murder, and possibly only for first degree murder. The US Supreme Court has also placed other restrictions on the imposition of the death penalty, including holding that it cannot be imposed on “mentally retarded” people, it cannot be imposed on people who were under the age of 18 when they committed their crimes (although note that this has only been the case since 2005; before that, according to the US Supreme Court, 16 and above was perfectly ok – but some states permitted the penalty to be imposed only for 18 and above), and various procedural matters.

There are also many appeals about the facts of specific cases, a significant proportion of which are run by The Innocence Project, which focuses on the use of DNA evidence to try to exonerate people on death row.

There is a variety of issues surrounding the imposition of the death penalty, including whether it is appropriate at all; whether it is racist and/or classist (a huge proportion of people on death row are from disadvantaged backgrounds, and, in particular, many are African American, and the death penalty is more likely to be sought – and imposed – when the victim was White); whether the procedures relating to trials, imposition of the penalty and appeals are truly fair and just; whether it is economically viable or rational; whether the conditions on death row are humane (especially given the length of time people spend there between conviction and execution); whether what happens as people get close to execution (a time when frantic applications for stays and the like are often being made, and decisions often come in at the last minute) are humane; whether the methods of execution are humane, and so on.

Many of those issues come up in the Troy Davis case.

Troy Davis is Black. The man he was accused of killing was White, and a police officer.

Troy Davis was convicted entirely on witness testimony (ie as opposed to physical evidence), much of which has now been recanted (see also this Guardian article).

During the appellate process, a judge appeared to accept that there was some doubt, perhaps some reasonable doubt – but appeared to put some onus on the appellant to make “a truly persuasive showing of innocence.”*****

There’s not a lot of information about his representation at hearing, but put it this way: had he been well represented by counsel he was able to pay a lot of money to, it is statistically enormously unlikely that the death penalty would have been imposed.

In short, whatever you think of the death penalty in general, the execution of Troy Davis smells bad.

It smells of a society which bays for blood when one of its own – “its own” being a member of the privileged group – is killed, without regard to whether shedding that particular blood is fair, just or right.

This, to me, and, it appears, perhaps to others is not civilisation.

It seems pretty likely to me that Troy Davis will be executed in the next 24 hours. I hope I’m proved wrong. But whether or not he is executed, I hope that the support, both international and within the USA, that we have seen in this case, and in the Duane Buck case, and in others, contributes to the growing desire in the USA itself to investigate the death penalty and its use in that country.


* The idea of degrees of murder (ie “first degree murder” being the most serious and so on) is an invention of the USA, specifically, of Pennsylvania, according to this website. Although the joint heritage of USA and Australian law means that there are some significant similarities, this is not one of them: Australia does not, and has never had, degrees of murder. However, for a long time, it has been possible to recognise differential severities of particular instances of murder by imposing differential penalties.

** See the New South Wales Council for Civil Liberties Background Paper [NB: link is pdf] – or here for a brief summary of the death penalty in Australia (and a link to the pdf above).

*** One of the USA’s explicit reservations to the ICCPR explicitly retains its right to impose the death penalty, including on persons who committed crimes when under the age of eighteen.

**** Australia was one of the first countries to sign up to the Second Optional Protocol to the ICCPR.

***** Note that, in Australia, while I can conceive that an appellate court might make the same ultimate decision on the facts of the Troy Davis case, the phraseology would have to be completely different. As soon as an appellate court in Australia starts talking using words that suggest there would have been a real possibility of an acquittal, the chances of a finding that there was a miscarriage of justice (and so, that the appeal should succeed) increase enormously. It may simply be a cultural difference in relation to the words used, but I think it also reflects a broader cultural difference in relation to criminal procedure, especially in relation to the role of the jury in the two systems. That would be another whole blog post. Or ten.

Thumbnail pic from the Proyecto Limón Flickr photostream

Cross posted

Categories: law & order, social justice

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10 replies

  1. For people wanting to take further action in an attempt to halt Davis’s execution (all normal avenues are exhausted), s.e. smith writes:

    Vigils are being held in various points across the country tomorrow, and State Senator Vincent Fort has called for a prison strike alongside the Southern Center for Human Rights:

    I am calling for a general strike or sick-out by all but a skeleton staff of the Georgia Diagnostic Prison on September 21st, 2011. I say to the prison staff: If you work on that day, you will enable the prison to carry out the execution of a possibly innocent man.

    Both the NAACP and Amnesty International have petitions for clemency up. The petitions request that District Attorney Larry Chisholm (Telephone: 912-652-7308 Fax: 912-652-7328) withdraw the death warrant against Troy Davis. It is important to be aware that this alone will not halt the execution; Judge Penny Freeseman (912-652-7252) would need to approve it. You can also contact the Board of Pardons and Paroles (, phone 404-656-5651, fax 404-651-8502) to request that they reconsider their decision. (Please note that the Governor of Georgia does not have the power to grant clemency in this case.) As always, keep contact short and sweet, and be patient if you get busy phone lines.
    Protesting this case may seem futile, but as long as Mr. Davis draws breath, I ask you to fight alongside him.

  2. Thanks Mary. I knew there was something I forgot to include.

  3. I can’t call from work but I have emailed asking them to reconsider.

  4. Quick update: I’m following the Shakesville thread, with comments from people watching the broadcast, and Melissa McEwan has just posted:

    SCOTUS official says it’s a temporary stay while they decide the case. Fucking hell.
    Could be minutes or hours before they make a decision…

  5. but appeared to put some onus on the appellant to make “a truly persuasive showing of innocence.”
    So not being proved guilty isn’t enough?

  6. @SunlessNick: apparently not.
    Keep in mind that I haven’t read the full judgment, and appeals are a bit different from trials, in that if you, the accused, are appealing a finding of guilt, you do actually bear some sort of onus of showing something.
    But in Australia, what you have to show on a conviction appeal is generally that there was something that led, or might have led, to a miscarriage of justice. That something is usually some sort of error (eg evidence incorrectly admitted or the trial judge giving a wrong direction to the jury, or failing to give a correct one), but it can also be fresh evidence. Recanting of evidence (as has happened in the Troy Davis case) is generally counted as fresh evidence, I suspect. Fresh evidence grounds are much hard to establish, because it is possible that an appellate court might say “well, this evidence might have made a difference, but I don’t think it would have been much of one, and you should have been able to pull it out for the trial in the first place, so tough luck, the conviction stands”. But if you can show that the evidence was not available to you at the time, and that there’s a real chance that it would have made a difference to the verdict, especially in circumstances where the consequences of getting it wrong are dire, then you’d have a pretty good argument that there had been a miscarriage of justice such that the appeal should succeed (which would mean you’d get a re-trial).
    So in other words, there is some sort of onus on the accused in a conviction appeal in Australia, but it’s generally not any requirement to establish innocence.
    Now, it may be that what the judge meant by saying that the appellant needed to “make a truly persuasive showing of innocence” was that he needed to convince the judge that the new evidence (ie evidence of recanting) had a realistic prospect of changing the verdict, which would be consistent with the test in Australia. But the language sounds really off to my Australian ears.

  7. And it’s been done. 11.08 pm, 21 September 2011, Georgia, USA time.
    I’d say: may he be the last, but I’m afraid he won’t. He certainly won’t be the last person executed by the state in the USA, and I’m afraid he also won’t be the last person executed by the state in the USA despite apparent doubt over hir guilt.

  8. A suggestion going around in tweets for responding is to donate $11.08 to relevant organisations in honour of Troy Davis.

    The Innocence Project (whose website is right now under heavy traffic), which works to exonerate people:
    The (US) National Coalition to Abolish the Death Penalty:
    And, I suppose, Amnesty International makes sense. and (US site also seems to be under heavy traffic)

  9. I find all capital punishment saddening but this has been a truly haunting case to follow, thanks for writing about the background to the law.

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