A Few Quick Notes on the Death Penalty

Wednesday drew to a close the life of Troy Davis, along with his twenty-year fight to prove his innocence. But we should pick up his larger battle — to end the death penalty in the remaining of the United States.

I never followed Mr. Davis’ case, and consequentially, won’t speculate on his guilt or innocence. Those details should be irrelevant to the larger argument, which is, simply, that America’s criminal justice system is far too flawed to justify the finality of death, in any case.

This isn’t an argument I would’ve made before I became a lawyer. But since then, I’ve seen enough criminal appeals to know that a conviction may be sufficiently certain to justify jail, but not to justify death. We must be 100% certain of someone’s guilt before we kill him, and the jury trial is too human — and the appellate process too flawed — to allow that confidence.



  1. My hope is that enough cases will be turned over with increasingly-better technology in the future that the gravity will be inescapable for an end to the death penalty BUT it’s a long way off in my estimate. The American people are still very much a frontier people in much of their thinking. Sometimes this is good, sometimes not.

  2. I disagree that we need to be 100% certain of someone’s guilt before killing him. Wrongly sparing the guilty is as much or more an injustice than wrongly executing the innocent – especially when, as you propose, it’s done on purpose.

    Lawrence Brewer was executed the same day as Troy Davis. Brewer’s execution was a good thing. Worthy of celebration, you might say. And while it’s possible Davis was wrongly convicted it’s possible he wasn’t. That uncertainty doesn’t change the fact that both men were convicted of actions worthy of execution. Unless you’re prepared to say that convictions are wrongful more often than rightful, I believe the appropriate policy is to execute both.

    I admit, I regard mercy and forgiveness as sins. But I do not believe the confidence level to execute need be any diffferent than the confidence level to imprison.

    I don’t know whether or not Troy Davis was an innocent man. Honestly, I don’t care. Better to kill an innocent by mistake than let a guilty

    1. Last sentence should be : Better to kill a few innocents by mistake than spare all the guilty on purpose.

      Droids are really not well-suited to text editing.

      1. This is something that I see all the time from my students, and it’s a particularly insidious false dilemma: Just about every time we execute an innocent person, the guilty party does go unpunished. (the obvious exceptions are cases like Cameron Todd Willingham, where there probably wasn’t any guilty person at all.)

        1. You are correct, but only when you look at an individual case in a vacuum. Overall, unless more innocent people are convicted than guilty people are convicted killing all convicts reaches the right result more often than not killing any convicts. Also, a policy of always executing means you’re killing most of the guilty and some of the innocent, but when you kill the innocent it’s because you made a mistake in identifying who’s guilty.. A policy of never executing doesn’t kill anyone innocent and doesn’t kill anyone who’s guilty, but when you don’t kill the guilty it’s because you made a conscious decision that after you correctly identify the guilty you’re not going to react properly.

          1. I’m more and more curious about your moral system, Steve. You seem — and I apologize if this is putting words into your mouth — to be advocating a sort of statistical ethics, which is not something I’ve seen outside of consequentialist accounts, but I’ve also seen you condemn consequentialism (or so I think I recall).

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