On August 17, the US Supreme Court ordered a lower federal court in Georgia to conduct a hearing in the case of Troy Anthony Davis. Davis has been on Georgia's death row for 18 years, sentenced to death for the 1989 murder of an off-duty Savannah police officer, Mark Allen MacPhail.
The prosecution's case rested almost entirely on testimony from eyewitnesses, but seven of the nine who testified against Davis at his trial recanted and now say they are not sure who shot MacPhail. Three people now say that another man has confessed to the crime. However, because of strict rules limiting consideration of new evidence, no court has held a hearing on the evidence of Davis' innocence, and he has come within hours of execution.
The Supreme Court directed the lower court to hear testimony and determine "whether evidence that could not have been obtained at the time of trial clearly establishes [Davis'] innocence." This is a welcome result. But the shocking truth is that even if the court concludes that Davis is innocent, that may not be enough to save him from the death chamber.
As Justice Scalia pointed out in dissenting from the Court's order, the Supreme Court has never ruled that it is unconstitutional to execute an innocent person. Many Americans will be surprised to learn that their Constitution might permit such a monstrous result. But when US courts review criminal convictions, they are focused on procedure, not on outcome - on whether the defendant received a fair trial, not whether he is factually guilty or innocent. If the trial was free from serious defects - a sleeping defense lawyer, a biased judge, a prosecutor who suppressed exculpatory evidence - the conviction and sentence will stand.
In 1993, the Supreme Court considered the case of Leonel Herrera, a prisoner on death row in Texas. Herrera produced new evidence tending to show that he was innocent of the crime for which he was sentenced to die, and argued that, since he was innocent, his execution would violate the Constitution. The Court avoided deciding that question, concluding instead that, even assuming that the execution of an innocent person would be unconstitutional, Herrera had not met the "extraordinarily high" threshold to establish such a claim. Herrera was executed a few months later.
A constitution that does not prohibit the execution of innocent people is, to say the least, seriously deficient. And it's not as if an innocent person reaching death row were a hypothetical problem. Since 1973, 135 people in 26 states have been released from death rows because of evidence that they were innocent. Some, like Davis, had come within days of execution. Several others have been executed despite strong evidence of innocence.
It's true that executive clemency can save innocent persons from execution when the courts will not, and some innocent persons on death row have received this form of relief. But in many states, a prisoner's hope of executive clemency can be largely illusory, as governors eyeing re-election are loathe to intervene on behalf of someone convicted of murder. For example, Texas has carried out 441 executions since 1976, including several in which there was serious doubt about the defendant's guilt. In that same period, only one person on Texas' death row has received clemency based on his possible innocence.
Human Rights Watch opposes capital punishment in all cases because of its inherent cruelty and finality, but even death penalty supporters must shudder at the prospect of putting an innocent person to death. Most of the United States' closest allies abolished the death penalty decades ago; in many cases, abolition was prompted in large part by concern about the risk of executing the innocent.
Unfortunately, abolition does not seem imminent in the United States. But for now, Troy Davis will get his day in court. And his case may become the vehicle for the Supreme Court to finally make clear that, in the words of Justice Stevens, it would be "an atrocious violation of our Constitution and the principles upon which it is based" to execute an innocent person.