The death penalty has become so infrequent in the United States that when executions take place, as they do behind closed doors in the quiet hours of the morning, they attract a great deal of attention. This is particularly true when race is in play, as it often is, and as it was in the two executions that took place on September 22, those of Troy Davis and Russell Brewer.
Brewer’s execution received short shrift in what felt like a rare reversal of attention. His crime, the horrific torture and murder of James Byrd, received a vast amount of press coverage back in 1998. Byrd was an African American man who was beaten and chained to the back of a truck by Brewer, who was white, and two other white men. The men dragged Byrd down a backwoods country road, leaving what was left of his body unrecognizable. (Ross Byrd, son of the victim, came out in opposition to the execution, saying that life in prison was punishment enough.) It was a hate crime that equaled or exceeded the bloody excesses of the Jim Crow era, and resulted in Texas Governor and current candidate for the Republican presidential nomination Rick Perry signing into law the James Byrd Jr. Hate Crimes Prevention Act, creating new punishments for hate crimes and becoming the foundation for similar federal legislation.
If Byrd’s death left a legacy that at least seeks to protect people from hate crimes, Troy Davis lived out a much more troubling legacy: the long shadow of Jim Crow. Black men in the American South face execution in numbers far out of proportion to their population, most often for crimes against whites. This isn’t just true in the South, of course, but as Christopher Hitchens wrote recently in Lapham’s Quarterly, “the business of execution is carried on more enthusiastically and more systematically in the states of the former Confederacy.” That enthusiasm was on display at the recent GOP debate, when the crowd cheered the 234 executions that have taken place in Texas under Rick Perry.
That enthusiasm and a snarl of legal technicalities weathered the pull of a steadily eroding case against Davis. In 1991, Davis was sentenced to death for the murder of an off-duty police officer. The testimony of the witnesses called varied wildly as to the description of the shooter, who according to their accounts wore a white shirt or a yellow one, had facial hair or did not, was 20 or 30 years old, stood 6 foot 2 or 5 foot 9, and weighed 130 pounds or 180. And those are just a handful of the inconsistencies that emerged in witness testimony. Seven of nine witnesses later recanted. There was no physical evidence and the safety valves intended to keep innocents from death failed to function.
Yet the power of doubt in Davis’s case was brushed away when the Supreme Court ruled that in his appeal, Davis had to provide compelling evidence of his innocence, meaning that in order to remove himself from death row (and, by the way, spend the rest of his life in prison) Davis would need to meet a substantially higher standard than prosecutors did when they secured a conviction. In dissenting on the Court’s decision to grant Davis an opportunity to challenge his conviction, Justice Antonin Scalia infamously dismissed the idea that so-called actual innocence gave an appelant legal standing under the Constitution.
This renewed focus on witness reliability now joins with a renewed focus on innocence, which followed a renewed focus on the whether lethal injection hurts (if it does, then should our conscience?), which followed concerns about bias, which followed concerns about–well, you get the picture. But rather than these various issues coalescing into a single bloc of opposition against the death penalty, they seem to emerge piecemeal as one, then another, convicted criminal is executed. The concern aroused by the previous execution subsides and is replaced by a new concern. There is, in short, no momentum.
What does this mean? Most likely that the number of death sentences and executions in the United States will continue to decline. But also, that the small number of states and counties that actually execute people will dwindle to some lower limit and stay there. We know that counties that have executed one person are more likely to execute another–this is what one researcher calls “the power law of death.” The power law of death means that counties that have executed before are more likely to continue to do so, and that counties that haven’t won’t start. The numbers bear this out. Harris County, Texas, is the only county in the country that has executed more than 50 people since 1977. Its 116 executions is more than triple as many as occurred in the runner-up, Dallas County. Just 14 counties have executed 10 or more people, all of them in Texas, Oklahoma, and Missouri. If the main predictor of execution is execution, the death penalty can hardly be more arbitrary.
Is execution just a bad habit? Yes and no. We know that racial bias plays a huge role in the death penalty process, from indictment to execution, and that no amount of technical adjustments, such as those made following Furman v. Georgia, can eliminate it. We know that those with diminished mental capacity are more likely to be executed. We know that legal defense for the poor is often inadequate. And finding legitimate solutions to any of these problems, which would be a difficult task with a genuine desire to fix the problem, has become impossible since the death penalty assumed its position as a purity test for American politicians.
With little variation, supporters of an increasingly doctrinaire and punitive Republican Party supports, even relishes (the cheers at the debate), the prospect of execution. Those cheers didn’t signal bloodlust. Instead, they sprang from the kind of brutish defiance and willful ignorance that is a defining feature of modern-day conservatism (see, too, evolution, global warming, taxation). To be a true fan of the Republican team means savoring your opponents’ defeats, even if those defeats come in the form of men and women executed. Democrats, gambling as they often do that they cannot anger liberals so much that they’ll lose their support (they’re wrong–Ralph Nader, anyone?) and committed to bending over backwards to appease so-called Independents and moderates, trot alongside the wagon and sometimes partake in cowardly acts of support, the most notorious occurring in 1992, when candidate Clinton’s left the trail for Arkansas to oversee the execution of Ricky Ray Rector.
The death penalty’s efficacy as political shorthand exceeds its efficacy as punishment. Occasionally, grown-ups have said as much and abandoned it, most recently Pat Quinn in Illinois. But as long as Americans view the use of the death penalty as a form of political expression and as long as we cling to the belief that it offers closure to victims (a recently-invented concept that has gained traction without much proof of its existence); as long as race, poverty, and mental disability relegate its use to the least-valued among us; as long as we are satisfied with patches and safety valves, it will continue in one form or another. The rickety machinery of death, to use Justice Henry Blackmun’s term, will keep sputtering and lurching along, carrying with it men like Troy Davis and carrying with it, too, our national conscience. Our conscience deserves better stewards than the handful of politicians who insist on doing things as they’ve always been done.