Thoughts in the Aftermath of An Execution

In the debate over the execution of Troy Davis, I have been relatively silent. I have said very little. It is known that I oppose the death penalty. I have structured my life’s work around this single view among the many that I also strongly hold. I have been silent because I have spoken in the past and nothing happened.

All evening as I prepared dinner, fed my son, bathed him and read books, I listened to the coverage of the pending execution of Troy Davis on death row in Georgia. In the days and years this case has been discussed in the media and on social networking platforms, I did not say much because of my skepticism about the prospects of this man who presented a substantial amount of evidence that suggests he is not guilty of the crimes of which he was convicted or at the least, he was tried under a cloud of unfairness and injustice.

Sometimes when people are hopeful I don’t want to be the one who dashes those hopes. I do not want to be the bearer of truth. I have watched my mother be a truth bearer all my life. Because of her work as a nurse, friends and family—mine, hers, and ours—have always sought her advice in a medical crisis. I have watched and listened to her tell the truth to sick relatives and friends in the face of the hopes that things might go a different way. I have sometimes judged her for telling the truth even as I grew to appreciate the steadiness of a woman so fixed on telling it. I sometimes wanted a mother who cooed and soothed and just said everything would be ok. My mother believes the truth is soothing. She does not do this to remove or dash hope because my mother also believes in prayer. But she takes on the burden of telling the truth, I believe, because she knows that it can also be useful, freeing. I have never wanted this burden, but in this instance maybe it is mine.

I too have hope, but years of observing the implementation of the death penalty in this country have weathered and weakened the ties that hold me to that sense that justice triumphs injustice. I do not pray like my mother. I do not assert that what I am writing is the truth. I am saying that when you know too much about how a thing works—like what my mother knows about the human body—you cannot un-know it.

I know that the machinery of death is powerful in this country. It is the result of hundreds of years of repression and control and good and bad attempts to maintain order. Capital punishment as an area of legal study intrigues me because it engages all these issues and the Constitution as a fundamental handbook for fairness and justice. But, when one believes the Constitution is a living, breathing document, as I do, you have to acknowledge the limitations of all things that inhale and exhale. There is an inexactness to the way the corporeal structure of justice works when interacting with human capacities, particularly the human ability to bring harm to its kin.

While watching the coverage of the execution that night and reading response on social media, I also fielded phone calls and text messages from hopeful friends and family who wanted know what I thought was going to happen. Despite the seeming impulse of social network users to share their every motion/emotion, I have found it an easy place to be silent. To do nothing. To allow all kinds of slights to go unchecked. To keep the hopelessness of too much information to yourself. But, for the friends and family who called, I had to say something. I am my mother’s daughter and when someone I love or care for asks I am compelled to tell the truth or at least some of it.

I told them that I had two major concerns and no hope of salvation. In the aftermath, I share those concerns with you. Not to dash hopes but to frame the events as many of you sustain your efforts to work against the death penalty.

My first concern was the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA often pronounced a-dee-pa). This act severely limited the ability of federal courts to intervene in state court decisions and imposed limits on the ability of the court to review new evidence like that in the Troy Davis case. AEDPA completely changed the rules of habeas (or the ability of individuals to receive help from the federal courts when state courts have treated them unjustly). Congress was acting to prevent “activist” federal courts from, in their minds, circumventing the right of state court’s to impose the death penalty for murders. Congress did not think about the innocent whose live are spared from further review. Or the innocent whose lives are taken. They only sought to streamline—really speed up—the path from the courthouse to the execution chamber.

AEDPA was signed into law by President William Jefferson Clinton who, along with a Republican majority in Congress, put in place laws that have magnified the incarceration rates of black people in this country to epidemic levels. I mention this fact because it is important to note that Democrats and Republicans have stood for and against the death penalty. I also mention it as a warning to the next person with lips who utters the phrase, “Bill Clinton was the first black president,” within slapping distance. My hand is raised. To them, but also to those who assert that there can ever be a system controlled by human beings that can assure with reasonable certainty that we will never execute an innocent person.

It is the overwhelming evidence of innocence in the Davis case that I think has really driven the community response unmatched in death penalty cases for at least a decade. In black community, the issue of innocence is particularly salient because of the history of lynching. The strange fruit of southern trees ripened again with execution of Troy Davis. A new generation of black people now have a lynching story to link them to the painful past of this form of racial violence. I have written about innocence and how it plays out in the inherently racial politics of the death penalty.

Laying black bodies on the alter of state power is an old story in this country. The new part of the story that I shared with those who voices were tinged with a desire to hear that everything would be ok is that innocence doesn’t always matter. How can the world be ok when you know that is the truth of the criminal justice system?

My second concern was a case called Herrera v. Collins decided by the Supreme Court in 1993. Leonel Herrera was a Mexican-American--which is important because part of the struggle to abolish the death penalty is to acknowledge that not only black people were/are lynched and executed--convicted of capital murder in the state of Texas. Later evidence surfaced of faulty eyewitness testimony similar to Troy Davis. The Supreme Court makes clear that ACTUAL INNOCENCE IS NO GUARANTEE OF RELIEF. The court basically says that its job is to police the process. Did you get a fair trial? If no, then we can help you. If yes, then whether you are actually innocent or guilty is not important. Once you have been tried in a fair trial, you are legally guilty. Legal guilt has meaning separately from actual guilt. Whenever I tell people about this case and the Court’s decision, they are perplexed because it goes against everything we are taught in popular culture about criminal justice system. But Herrera v. Collins stands as good law even after over 130 people have been exonerated in capital cases since 1973.

I was born in 1973. Although I chastise my students for it, we all mark time by our births. In my lifetime we have seen the resurgence of this horrific form of punishment with no clear end in sight. Watching the righteous fight for Troy Davis, I think might have be signal of a new day.

I highly recommend the radio documentary Witness to an Execution for an up close rendering of what is done in our names. You can find part of it on NPR at this link: http://www.npr.org/programs/atc/witness/.

I also published an academic article on race and innocence titled Litigating Salvation in 2006 in the Southern California Review of Law and Social Justice.