Responding to the Troy Davis execution, Ross Douthat does what he does best, offering an overthought response that manages to “raise a point” without actually addressing the central issue in the argument. Maybe that’s useful on some topics, but not really here. The argument: the death penalty, because it’s so terrible, generates justice by inspiring aggressive investigation of death row convictions:
In a world without the death penalty, Davis probably wouldn’t have been retried or exonerated. His appeals would still have been denied, he would have spent the rest of his life in prison, and far fewer people would have known or cared about his fate.
Instead, he received a level of legal assistance, media attention and activist support that few convicts can ever hope for. And his case became an example of how the very finality of the death penalty can focus the public’s attention on issues that many Americans prefer to ignore: the overzealousness of cops and prosecutors, the limits of the appeals process and the ugly conditions faced by many of the more than two million Americans currently behind bars.
Simply throwing up our hands and eliminating executions entirely, by contrast, could prove to be a form of moral evasion — a way to console ourselves with the knowledge that no innocents are ever executed, even as more pervasive abuses go unchecked. We should want a judicial system that we can trust with matters of life and death, and that can stand up to the kind of public scrutiny that Davis’s case received. And gradually reforming the death penalty — imposing it in fewer situations and with more safeguards, which other defendants could benefit from as well — might do more than outright abolition to address the larger problems with crime and punishment in America.
Buried in here is a valuable metaphysical point: despite the horrors of war, death, or really any classically human tragedy, by experiencing loss, we discover a part of ourselves, and that often profound response itself has value. We wouldn’t have The Diary of Anne Frank or Atonement without World War II; the Renaissance without the fall of Rome; or America without the horrors of true tyranny. Tolkien put it eloquently in his Silmarillion:
“Thus even as [God] spoke to us shall beauty not before conceived be brought into [the World], and evil yet be good to have been.”
But Mandos said: “And yet remain evil.”
Mandos wins that debate. Nine times out of seven (YouTube), we’d trade the lesson to avoid the tragedy.
So too with the death penalty. First, to imagine that the death penalty is exclusively or uniquely capable of drawing the attention of pro bono lawyers, for the vital work of proving the innocence of underprivileged felons, is simply wrong. That work proceeds in other forms in non-death penalty states thanks to the efforts of law firms with good pro bono programs, and broader-based social justice organizations. Last Monday, at my firm, we filed a cert. petition challenging a New York conviction, on the novel theory that state courts cannot constitutionally refuse to apply changes in judge-made criminal law retroactively. And last Tuesday, I lost an appeal arising out of an Illinois conviction where, despite the loss, we convinced the Seventh Circuit to adopt a slightly more pro-defendant standard in habeas appeals. So the criminal law evolves, despite the absence of the death penalty. Conscientious lawyers necessarily take Douthat’s broader view of flaws in the criminal process, and we don’t have to kill people to inspire good work.
More importantly here, the cost of inspiring good lawyering, in Douthat’s view, comes with a terrible price. The defense bar’s lot in life is a hard one: we take good cases, but lose more often than not, and loss in a death penalty case means (adopting Douthat’s assumption about Troy Davis’ innocence) that an innocent man dies. What we’re talking about then is a system that puts a gun to society’s back to inspire good lawyering, and ends up pulling the trigger regardless of the result. If along the way some progress is made in creating a better criminal system, that’s a side effect of the sytem — not the intended result.
That social benefit — Ross Douthat’s justice — is cold comfort for the dead. As it is for us. We shouldn’t have to offset the injustice of a wrongful execution with the justice of incremental progress in reforming the criminal law. By my account, that’s still a net injustice, which just isn’t good enough.