Troy Davis
Prof. Carolyn Shapiro comments on the role the Court played in the controversial execution of Troy Davis on September 21.
Davis was convicted for the 1989 murder a police officer in Savannah, Georgia, based largely on eye witness testimony. Many of these witnesses, however, recanted their testimony. After a series of hearings and appeals, including an order by the Court directing a federal district court to review the case, Davis was set to be executed.
A last minute petition for stay of execution to the Supreme Court drew intense public interest, especially in online social media. The Court, however, declined to intervene a second time.
While most discussions of the Court's nonintervention focus on Troy Davis's claim of actual innocence, which would have required reversing his state conviction for the murder of Officer Mark MacPhail, an alternative ground for overturning his death sentence may not have been considered. That ground would be that the death penalty constitutes Cruel and Unusual Punishment under the Eighth Amendment when there is substantial doubt about a defendant's guilt, although not
sufficient to justify overturning a jury's verdict of guilty.
Having turned in its 1976 decisions to the American Lawt Institute's Model Penal, former Section 210.6 (1962) as a guide for a presumptively constitutional death penalty statute (_Gregg v. Georgia and companion cases), the Court might have cited Section 210.6 (1) (f), which calls for a trial judge to exclude the death penalty in a case where "although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting the defendant's guilt."
The Court might also have cited the 1953 report of the Royal Commission on Capital Punishment, which noted that a "scintilla of doubt" as to guilt was one strong ground for granting clemency in the United Kingdom, which became abolitionist for murder in 1965 and for all crimes in 1998.
Such a rule, that the Eighth Amendment bars the unique penalty of execution where there is "substantial" doubt, although not sufficient to preclude conviction or establish "actual innocence," would have saved Troy Davis's life without overturning his conviction -- unless his attorneys could meet a far higher bar of "actual innocence." It would have been a reasonable response to the competing equities of Davis's case, and to the perception that the State of Georgia may have a more compelling interest in imprisoning a "still likely guilty" prisoner -- accepting for the moment the decision of Judge William T. Moore in 2010 -- than in executing such a prisoner where the case is yet less than "ironclad."
The Court would have had to overcome two hurdles. First, in order to make a new rule of law, it would have had to move beyond its habeas doctrines of the last two decades that finality trumps evolving legal standards in capital cases. Secondly, by adopting some kind of "substantial doubt" or "verdict unsafe for execution (although not for life imprisonment" standard, it would make the federal courts referees under the Eighth Amendment as to when state convictions were doubtful enough to bar execution. That might be the path to a greater measure of justice in tragic cases such as that of Troy Davis, but also to the ultimately just realization expressed by at least four justices so far that the death penalty in itself is cruel and unusual punishment barred in all cases by the Eighth Amendment.