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3Qs: Considering the death penalty’s future

Last week, death-row inmate Troy Davis was executed following a highly controversial trial and conviction for the murder of an off-duty Savannah, Ga. police officer in 1989. The case gained national attention because eyewitnesses who testified against Davis later recanted. We asked Michael Meltsner, the George J. and Kathleen Waters Matthews Distinguished University Professor in the School of Law, to provide some context on Davis’ case and capital punishment.

Seven of the nine witnesses who testified against Troy Davis later recanted, and physical evidence in the case against Davis was also considered suspect. Did enough evidence remain against Davis to justify the Supreme Court’s decision to not take up Davis’s final appeal?

The Supreme Court ordered a federal judge to review the evidence, and he concluded that Davis was not innocent. Proving your innocence, however, is an unrealistically high standard of proof to impose. It is virtually impossible. Given the well-known flaws of the criminal justice system and the remarkable turnaround by a number of witnesses, it seems clear that there were legitimate doubts about guilt in this case. The public should ask whether there are substantial benefits derived from taking a human life in these circumstances.

Some experts have suggested that Troy Davis’s case serves as an example in the debate over eyewitness reliability, when scientific studies show the human memory can be surprisingly faulty. How much credibility should be given to eyewitness testimony in these high-stakes cases?

Eyewitness testimony is often unreliable, but most people take it as the very best proof. This is one reason, and DNA is another, why in recent years we’ve discovered so many false convictions. A number of police departments have begun to use fairer techniques to test eyewitnesses than the classic (and distorting) group lineup. The crime in the Davis case, however, took place in 1989, long before a reform movement picked up steam.

What impact will the controversy surrounding Troy Davis’s execution have on capital punishment reform? Will it lead to lasting changes in America’s death penalty system?

The death penalty is no longer employed in a significant number of cases — not that it’s of any consolation to the handful who are executed and their families. It is clear that capital punishment costs too much and that confidence in the reliability of death sentencing is very low. It survives in part because we like to feel justice is done, and in our culture, there are still some places where that means a death sentence. In most of the world that we identify with culturally, society has decided prison protects us just as well as execution. Remarkably, even jurors in this country who favor the penalty find themselves avoiding its imposition in most cases. While Davis captures today’s headlines, there are cases like Davis’s every few years. The public forgets them the way it forgets the names of losing vice presidential candidates. The fate of the death penalty will respond to deeper urges than any particular case in Georgia, no matter how tragic the circumstances.

Meltsner’s book, “Cruel and Unusual: The Supreme Court and Capital Punishment” was recently reissued in a new edition by Quid Pro Books.

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