Troy Anthony Davis and Georgia's Plan to Commit an Irreversible Sin

09/21/2011 10:24 am ET | Updated Nov 21, 2011

In 1991, Troy Anthony Davis was convicted of murdering off duty-police officer Mark MacPhail in Savannah, Georgia. He is slated to die tonight by lethal injection.

According to the New York Times, MacPhail's widow offered the following remarks about the Davis and the State of Georgia's plan to strap him to a gurney and use intravenous fluids to stop his heart:

"He has had ample time to prove his innocence..."

Her choice of words is telling. Ms. MacPhail-Harris is correct in pointing out that Troy Anthony Davis has indeed failed to "prove his innocence." Correct, yes. But she's not right.

The widow of Mark MacPhail is not a jurisprudence expert and should not be expected to speak as one. She speaks emotionally. Nonetheless, she raises an interesting question. We all know a little something about the presumption of innocence in the American criminal justice system, and most of us hold dear the ethical (at least) principle that it is for the state to arrive at the certainty that Davis is guilty -- not for Davis to prove his innocence.

When the punishment is irreversible, the moral and ethical burden of proof (if not the legal one) should rest, all the more, with the state. Despite that a preponderance of doubt still attends the Troy Anthony Davis case, it looks as if the state of Georgia will strap him to a table tonight and end his life. He will, in a sense, die as a consequence of having failed to prove his innocence in time.

There's a good chance Davis is not guilty.

When we we "fry" the wrong guy, we kill him for failing to prove his innocence. It is for this reason that so many death penalty supporters -- people like former FBI chief William S. Sessions -- have petitioned the Georgia State Board of Pardons and Parole not to put Troy Anthony Davis to death by lethal injection.

"We are not killing Troy because we want to," says the widow of he man Davis is accused of murdering. "We're trying to execute him because he was punished."

Again, the language reveals the underlying truth of this matter. Like so many, the widow would execute Davis because he is punished -- not because he is the murderer. Not because his guilt is certain. But so as to have a body. So as to trade a body for a body.

"We are trying to execute him because he was punished."

One can understand a widow's longing for an outcome that feels balanced. But if Davis is executed this evening it will be done in the hope that the sacrifice of the life of a man who may or may not be guilty will satisfy and soothe. The killing will be conducted with the aim of providing those who yearn for it with a sense that justice has been done; but it will be simulated justice, not the real deal.

"I'm not out for blood. I'm for justice," said his MacPhail's mother, Anneliese MacPhail. I'm sure Mrs. MacPhail speaks in earnest, but what she says is not true. The call for the death penalty is always a call for blood.

I oppose the use of the death penalty on religious grounds. But many who favor the use of it have reservations about ending the life of Troy Anthony Davis. Furthermore, people on all sides of this complex and controversial issue generally agree that in the United States must strive never to use execution as a means of punishing a man for his failure to "prove his innocence." I pray regularly for the day that the United States joins the nations of Europe, North America and all but a few of our South and Central American neighbors in recognizing that state-sanctioned execution is, in practice, racist; in essence, immoral; and in too many instances, murderous.

Earlier this year, I wrote about the case of Humberto Leal Garcia, who was executed in Texas in July. In "Can the Death Penalty Deliver Justice or Peace?" I discuss Leal's crime, how my faith shapes the way I view his punishment, and the important and, I believe, heroic work of former warden and (now) anti-death penalty activist Ron McAndrew.

In Leal's case there was little doubt of his guilt of the crime. In the Troy Anthony Davis case, doubt abounds. According to Amnesty International, nearly a million supporters of justice and human rights have raised their voices to ask Georgia's Board of Parole and Pardons to offer clemency to Troy Anthony Davis. Those seeking to save the life of Davis include former President Jimmy Carter, Archbishop Desmond Tutu, three jurors from Davis's murder trial and many who support death penalty in general but oppose the use of it in this case. According to Amnesty International, some of the witnesses whose testimony led to the conviction of Davis have recanted, the account of one witness who is currently suspected of having taken part in the crime is now questionable and the conviction is riddled with doubt.

In Georgia, the governor lacks the power to stay executions; therefore, Davis' fate rests in the hands of the state's Board for Pardons and Parole, which has already once before blocked Davis', execution citing the need for more confirmation of his guilt.

Yesterday the board denied Davis clemency.

Although I believe making use of the death penalty is a grave sin, I recognize that many principled people do not share this view. In matter of the plan to execute Troy Anthony Davis, however, there's plenty to make even the most strident pro-capital punishment advocates uncomfortable.

The Troy Anthony Davis case offers a dramatic example of how human error always figures into an ethical analysis of the death penalty. We can simply never have 100 percent certainly that the man we tether to a gurney in order to facilitate the stopping of his heart is guilty. So long as physical death remains irreversible and we remain unable to be be sure, we who execute convicts will always risk engaging in the very behavior we seek to punish. When we erroneously execute a man -- for a crime he did not commit -- we punish ourselves. We become murderers.

This margin of error is the most compelling reason to follow the lead of all of Europe and most of the Americas and abandon the death penalty. As a Catholic, I tend to believe that any Christian who advocates the death penalty pushes Jesus out of the way in order to do so. As a woman who loves life and cherishes freedom, I suspect I'd prefer lethal injection to life in a cell, and recognize that it must take courage to fight a death sentence. I know that life in prison is not an easy way out.

It is the hard way out. Men like Troy Anthony Davis, who challenge the legality of execution while waiting on death row, choose life over death. Why? Because they recognize that even life without freedom is a gift. There is religious feeling in this struggle, which, in my opinion, those who would call themselves religious ought not ignore.

People who call for the death penalty but say they are "not out for blood" are not being truthful. Blood is exactly what they are out for. It is easy to understand how suffering gives way to the thirst for the retribution, but as we set the stage for execution, countenance it and in some cases even applaud it, we ought to at least be clear about what it is we seek. We should know what it is we do. We should acknowledge that it is blood we are after.

According to the Times piece, the mother of the murdered man has said she will not attend the execution. Good. My heart goes out to her; a mother should never have to bury her son. I am glad she will decline to attend the execution of another woman's son.

"I can finally get peace. I can never get closure, but I can get peace."

Unfortunately, the mother of the man Davis may or may not have slain is mistaken. She has it backwards. She may get a speck of "closure" when the spirit of this man runs out of his flesh, but the last thing in the world she will have once Troy Anthony Davis's life has been snuffed out and his soul is released is peace.

I wish her peace, but the truth is only dead men get peace by means of murder.

Please contact Amnesty International to learn how to support efforts to save the life of Troy Anthony Davis.