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Capital punishment still an issue

Charles Rice | Monday, November 17, 2008

When former President Jimmy Carter and Bob Barr, the 2008 Libertarian candidate for President, agree on anything, we should take notice. Both recently urged the Georgia Board of Pardons and Parole to reverse its decision to deny clemency to Troy Anthony Davis, sentenced to death for the 1989 murder of police officer Mark MacPhail.

Davis was charged with two counts of aggravated assault, one for shooting Michael Cooper at a party, and the other for striking, two hours later, a homeless man, Larry Young, on the head with a pistol. Davis was charged with murder for shooting Officer MacPhail, moonlighting as a security guard at a bus station. As charged, MacPhail chased Davis after the assault on Young. Davis fired at MacPhail who was shot in the face and fell. Davis, it was charged, walked over to MacPhail and shot him twice again. The pistol was never found, but shell casings at the scenes showed that the same pistol was used to shoot Cooper and MacPhail. The jury convicted Davis on all counts.

Davis has sought a new trial on the grounds that he is innocent, that seven of the nine witnesses who testified against him have recanted their testimony and that evidence implicates another person as the killer. The Georgia Supreme Court, in a 4-3 ruling in April, 2008, denied Davis a new trial. The Supreme Court of the United States denied review. Further proceedings are pending.

Courts properly give less weight to a recantation, whether sworn or unsworn, than to the witness’ testimony before the judge and jury at the trial. The Georgia Supreme Court majority last April found the recantations insufficient to overturn the jury’s verdict because they lacked materiality as to innocence or failed to show the witness’ testimony at trial to have been the “purest fabrication.” The three dissenters said the majority’s approach “is overly rigid and fails to allow an adequate inquiry” into the question of whether an innocent person might have been convicted and might be put to death.

An innocent person should not be imprisoned for a day, let alone executed. The finality of execution adds urgency to any claim that a person sentenced to death is innocent. On the entire facts, Davis’ entitlement to a new trial is far from a sure thing. It is doubtful at best. But whatever the outcome of his claim, it should prompt us to ask: Does it make sense to impose the death penalty even for an aggravated murder such as this? Thirty-six states, plus the United States government, have the death penalty, with 1,129 executions since 1976. As of Jan. 1, 2008, 3,350 persons were on death row in the United States. The passage of two decades and more between the crime and the execution is not unusual. Numerous studies show that the imposition of the death penalty costs taxpayers far more than it would to imprison the defendant for life without parole.

Since 1973, at least 130 persons have been released from death row with evidence of their innocence of the crime for which the death sentence was imposed. The death penalty, however, should be reconsidered for reasons more basic than the possibility of executing the innocent. The clearest exposition of those reasons is in the recent teaching of the Catholic Church.

No one, including the state, ever has authority intentionally to kill the innocent. The state, because it ultimately derives its authority from God, has authority to kill intentionally in two cases, the just war and the death penalty.

The “primary aim” of punishing a criminal is retribution, “redressing the disorder introduced by the offense.” Catechism, no. 2266. The other purposes of punishment are rehabilitation of the offender and deterrence of the offender and of others.

In Evangelium Vitae (EV) and the Catechism (CCC), John Paul II reaffirmed the authority of the state to impose the death penalty. But he gave us a new criterion for the use of that penalty. Neither retribution, nor any other purpose, will justify the use of the death penalty unless it “is the only possible way of … defending human lives against the unjust aggressor.” In other words, it has to be the only way to keep this criminal from killing again. The fact that the death penalty may deter others from killing is not enough. Nor does the horrific nature of the crime justify execution.

This restriction arises from the importance of the conversion of the criminal. St. Augustine and St. Thomas agree “for a just man to be made from a sinner is greater than to create heaven and earth.” S.T. I, II, Q. 113, art. 9.

“[N]on-lethal means,” said John Paul, “are more in keeping with… the common good and … the dignity of the human person. Today, … as a consequence of the possibilities which the state has for… rendering one who has committed an offense incapable of doing harm – without definitively taking away from him the possibility of redeeming himself – the cases in which… execution…is an absolute necessity ‘are very rare, if not practically non-existent.'” Catechism, no. 2267, quoting EV, no. 56.

Whether execution is an “absolute necessity” depends on a prudential judgment as to the ability of the prison system to confine this prisoner securely. But the Church’s limitation on the use of the death penalty is a universal, and not a prudential criterion. It applies everywhere and in all states. Use of the death penalty could be permitted under this criterion in some cases, for example, if a life inmate, already in maximum security, murders another inmate or a guard; or if the state is unable to confine inmates securely.

In our culture the intentional infliction of death has become an optional problem solving technique. The ultimate perversity is seen in those who oppose the death penalty for criminals and support it for the innocent unborn child. As John Paul said, “[I]n the name of God, respect, protect, love and serve life, every human life!” EV, no. 5.

If Troy Anthony Davis is innocent of murder, he should not be executed or imprisoned for that crime. For the more basic reasons advanced by the Vicar of Christ, he should not be executed even if he did murder Officer MacPhail.

Charles E. Rice is professor emeritus at the Law School. He may be reached at rice.1@nd.edu or 574-633-4415.

The views expressed in this column are those of the author and not necesarily those of The Observer.