The Death Penalty's Enduring Emotional Appeal

Liberty means being able to tolerate doubt -- something neither liberals nor conservatives are willing to do

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Protesters show their support for death row inmate Troy Davis during a rally at the capitol in Atlanta September 20, 2011 / Reuters
I don't know if Troy Davis was guilty, but I do know that he was wrongly executed on the basis of insubstantial, highly questionable, evidence. I also know that he wasn't the first plausibly innocent or at least not demonstrably guilty person to be killed by the state, and I'm convinced that he won't be the last. Twenty years ago, Hugo Bedau and Michael Radelet documented 400 wrongful capital convictions and 23 wrongful executions; since then the Innocence Project has familiarized people with post-conviction exonerations. Still three people were executed in the past week, two in relative obscurity. I'd like to think that the insightful Dahlia Lithwick is prescient in regarding the Davis case as the beginning of the end for capital punishment in America. But after years of studying and writing about the death penalty, I suspect that the history of capital punishment -- a history of rationalizing or forgetting the occasional high profile, wrongful execution -- will continue repeating itself.

I expect no significant erosion of institutionalized barriers to justiceĀ  -- the grievous limitations on death penalty appeals enacted during the Clinton years with bipartisan support, the Supreme Court precedents that dispense with constitutional restraints on executions (including concerns about actual innocence), the high tolerance by appellate courts for acknowledged prosecutorial errors, or the grossly inadequate, under-funded indigent defense system in capital cases. Nor do I expect any diminution in the righteousness partly underlying public support for the death penalty and the belief that justice means inflicting on convicted predators the same punishments they inflicted on their prey. "Nothing is more cruel than righteous indignation," Clarence Darrow said, pleading for the lives of Nathan Leopold and Richard Loeb. He meant, I think, that moral certainty is crueler than moral ambiguity, because it is so utterly immodest.

Nothing is more reliable than the persistence of moral immodesty, Darrow might have added. Today, it seems especially plentiful in efforts, right and left, to police our private lives. The right wants to prohibit abortion and homosexuality among other presumed sins and subject us to a theologically correct Christian government; the left want to expand the reach of civil rights laws, applying them to speech as well as behavior and extending them to private associations. Liberty is eroding, partly (and only partly) because it requires a willingness to tolerate doubt about the rightness of our ideals and predilections and the fairness of the justice system.

Of course there's perennial doubt about the virtue and competence of government, shared, paradoxically, by many who support the death penalty. Abolitionists have long wondered about the willingness of those who mistrust the government to trust its criminal-justice bureaucracy with the power to put people to death. But talking or listening to death-penalty supporters and parsing the polls, you don't hear a belief in government infallibility so much as a tendency to minimize its mistakes and accept them as the price of law and order. "The system is as close as we can make it to being fair," a prosecutor with mixed feelings about the death penalty once remarked to me.

Besides, support for the death penalty (like opposition to it) is generally more ideological than pragmatic (although pragmatic fiscal constraints may limit its use). This means that people who favor executions don't accept at face value abolitionist claims about wrongful executions, no matter how carefully they're documented. Interviewing a prosecutor and defense attorney about a controversial capital case in Georgia some years ago I heard strong accusations and equally strong denials that the prosecution had been corrupted by influence peddling. I didn't conduct my own factual inquiry (and suspected that each version was partly true), but I was less interested in which story was true than in how true each version seemed. Voters who hear similar stories are unlikely to investigate them; instead they'll believe the side that seems to share their values and ideals. These days the political power of facts and fictions seems more equal then ever, and it's hard for truth to set you free.