Do the Innocent Have a Right Not to Be Executed?


While supporters of Troy Davis, including Bob Barr and Pope Benedict, were overjoyed that the US Supreme Court ordered the Georgia district court last month to determine “whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s [Davis’s] innocence,” the ruling may still bode ill.

Newly-appointed Sonia Sotomayor did not participate in the August 17th ruling.  We know that Stevens, Breyer, and Ginsburg voted for the stay of execution and that Thomas and Scalia dissented.  So to achieve five votes in favor of reprieve, two other justices, either Roberts, Kennedy, or Alito must have joined the majority.

Antonin Scalia wrote — perhaps shockingly — in his dissent: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

It is important to realize that the August decision did not reach the question of whether it is unconstitutional to execute someone who can demonstrate that he is actually innocent.  The resolution of that question will have to wait if and until the Troy Davis case comes back to the Supreme Court, assuming Georgia’s court is persuaded by the seven witnesses who recanted their testimony after he was convicted of the murder of a police officer.

One might speculate that it was Kennedy, the most liberal of the three possible justices, who cast Davis a line.  The effect of the August ruling was to consider whether a post-conviction showing of actual innocence should be foreclosed by the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA).  The effect of AEDPA is to limit convicted defendants to one and only one appeal in federal court.  It makes most newly discovered evidence irrelevant by requiring all issues to be raised within one year of the final conviction.  AEDPA eliminates all arguments except those based on a showing that his or her conviction was actually contrary to a decision of the US Supreme Court.  That’s why Scalia pointed out the Supreme Court has never to this date held that actual innocence is grounds for habeas corpus.

Anthony Kennedy has expressed proportionality concerns about the death penalty, but he has given his imprimatur to so-called “death-qualified juries.”  Prosecutors are allowed to strike off potential jurors who say they have moral reservations against imposing the death penalty.  The term comes from a Rehnquist opinion written in 1986: “Death-qualification, unlike the wholesale exclusion of blacks, women, or Mexican-Americans from jury service, is carefully designed to serve the state’s concededly legitimate interest in obtaining a single jury that can . . . apply the law to the facts of the case . . . [in] a capital trial.”

In Uttecht v. Brown, a 2007 case, Kennedy reinstated a conviction voided by a California judge who found a juror was excluded only because “he did not perhaps show the kind of bloodthirsty eagerness” to impose the death penalty “that the prosecutor may have preferred.”  In dissent, Justice John Paul Stevens said the majority was misapplying death qualification.  He said the majority got it “horribly backwards,” creating the impression that “trial courts should be encouraging the inclusion of jurors who will impose the death penalty rather than only ensuring the exclusion of those who say that, in all circumstances, they cannot.”

If a majority of the highest court of the land views obtaining and imposing a death sentence as a “legitimate interest of the state,” then actual innocence, along with Troy Davis, seems doomed.

Besides the apparent favoritism the courts show for jurors who have no problem with the death penalty, many studies have shown that a “death-qualified” jury skews the conviction rate in favor of guilt.  This is because those eligible to serve in capital cases are “demographically unique,” according to Florida psychology professor Brooke Butler.  “They tend to be white, they tend to be male.  They tend to be lower middle income.  They tend to be Christian and politically conservative — even racist, sexist and homophobic,” she says.

We may find out that Roberts and Alito were only biding their time in giving encouragement to Troy Davis.  As original constructionists, they frown upon giving Supreme Court opinions on issues that are not fully ripe for decision.  So they had nothing to lose by joining the Davis majority: it doesn’t commit them to a position on the ultimate issue.  What it does, though, is create a possible opportunity for them to expand the “legitimate interests of the state” in having final convictions.

Ann Schneider, Esq, is an executive committee member of the New York City chapter of the National Lawyers Guild.