Yesterday the Georgia Board of Pardons and Paroles refused to commute the death sentence of inmate Troy Davis, who was convicted in the 1989 death of a police officer.
Who serves on such boards? Radley Balko points it out for us, quoting the Associated Press:
Gale Buckner, a former Georgia Bureau of Investigation agent . . . . Robert Keller, the ex-chair of a Georgia prosecutors group . . . James Donald, the former head of the Georgia Department of Corrections, Albert Murray, who led the state’s juvenile justice program, and Terry Barnard, a former Republican state lawmaker.
The A.P. notes dryly that commutation is seldom granted. I'm shocked!
Troy Davis' supporters claim that there is substantial proof that he is an innocent man; I haven't researched that proposition enough to comment on it, but better minds than mine are concerned based on the available evidence.
I hardly see the point of a commutation review if you're going to pack the board with hardliners, though. The board makeup appears calculated to assure that commutations are not granted — that the possibility that the executive will exercise its pardon powers will remain hypothetical. I'm not saying that such a board ought to be packed with defense lawyers. However, it ought to reflect more diversity of thought and opinion. Optimally, I think, a board ought to include someone with a background in prosecution, someone with a background in criminal defense, someone with a background in law enforcement, and a respected forensic expert who has testified for both the prosecution and the defense. The forensic expert would assist the board in evaluating arguments about forensic evidence. You might assume that the defense lawyer would always vote for clemency, but you would probably be wrong — a principled defense lawyer would help separate the meritorious arguments of ineffective assistance of counsel from the ones that are mere Monday-morning quarterbacking.
But that's not going to happen. In the forty years that politicians have tried to convince us that "law and order" is a principled legal position rather than a crowd-pleasing political slogan, the subjects of the death penalty, commutation, and the pardon power have become not only political, but cultural. Pardon rates have plummeted since the first half of the century in the face of that culture. When the Republican debate audience roared with approval that Rick Perry's Texas had executed 234 people, that did not represent a legal position, or a deliberate "we trust the government" sentiment, or a thought-out refutation of the evidence that Texas has relied on junk science to execute an innocent man and Rick Perry has helped cover it up. Rather, it was applause for a cultural team, and everything that's bundled together with that team. People tend to support their team through good times and bad, despite its warts and its players' mistakes and misbeaviors. When people roar with approval for the death penalty in the abstract, they're often roaring against people who held candles in a vigil for Ted Bundy and people who think guns are icky and ought to be banned and people who think Texas is awful and backward. (Similarly, when people roar against the death penalty in the abstract, they're often roaring against Texas and guns and anti-gay sentiments and et cetera.)
But people are not abstractions — including the people on death row, and including the victims that at least some of them murdered. Their fate ought to be governed by the rule of law, by good science, and by at least a good-faith gesture towards dispassionate evaluation, not by the winds of the culture wars.
Last 5 posts by Ken White
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- America At The End of All Hypotheticals - August 14th, 2017
- Lawsplainer: Why John Oliver Is Anti-Diversity Now - August 11th, 2017