Ross Douthat has a fascinating piece in the Sunday Times about the Troy Davis case. Douthat, as you probably know, is the Times (most) conservative columnist and, according to Wikipedia, a convert first to Pentecostalism and then to Catholicism, making this morning’s column, for me, another example of the damage religious conversion can sometimes do to your moral sense.
This may misrepresent the column. Douthat’s argument is not religious but civic. To the extent that faith is invoked at all it’s as a call to waverers not to lose faith in the death penalty over this unfortunate affair. If you’ve been following the case, you know that what made the affair unfortunate was the very high probability that the State of Georgia just put an innocent man to death. On the plus side, according to Douthat, the case, which exhausted 20 years of appeals, “can focus the public’s attention on issues that many Americans prefer to ignore: the overzealousness of cops and prosecutors, the limits of the appeals process and the ugly conditions faced by many of the more than two million Americans currently behind bars.”
In other words, if I’m understanding him properly, the execution of an innocent man can help us focus on the conditions that make it possible for us to execute innocent men.
Here’s where I hear the bat-squeak tone of a certain kind of religious mindset. There’s a pleasing circularity to Douthat’s vision. Davis’s execution will help us to reform abuses so that fewer Troy Davises will have to die and we can have faith in the fairness and justice of executions. It’s the way a certain type of mind veers helplessly towards systems—self-enclosed, self-perpetuating systems from which a great deal of mess has been excluded.
In one sense the column startled me. I’d been clumsily dividing the death penalty issue between opponents who pointed out the danger of executing innocent people and proponents who thought that innocent people were never executed. For the latter, the fact that Davis exhausted all his appeals and was executed is sufficient proof that he was guilty. The system worked. (If Davis had been exonerated, the system would also have worked, despite the 20 years in prison.) And yet I should have understood that there must be people like Douthat who believe both that Davis was essentially murdered and that the death penalty is necessary and valid. It’s not an untenable position—we have many other systems in which we’re willing to countenance the deaths of innocents in the name of a larger good: war, poverty, highways. But the problems with the position lie in the mess that Douthat is excluding.
I should say that I don’t actually believe that opponents of the death penalty “prefer to ignore” the abuses of the justice and prison system. My guess is that they’re only too well aware of them, and that they’re as troubled by the wrongfully imprisoned as they are by the wrongfully condemned-to-die and work as assiduously to free them. Douthat’s most tangled paragraph opines that “a society that supposedly values liberty as much or more than life itself hasn’t necessarily become more civilized if it preserves its convicts’ lives while consistently violating their rights and dignity.” (Recently I had a dinner conversation about this troublesome word “liberty” which we hear more and more from the right and which seems to be used like a little silver hammer to knock people between the eyes and stop them thinking.)
The problem is not just that Douthat is offering us a binary choice—protect life or protect rights and dignity—a choice which he is not extending to the actual prisoner, who might weigh those options differently. The problem is that the more reformable aspects of the criminal justice system are the ones that revolve around making prisons safer and more humane places. The less reformable aspects of the criminal justice system—the mess that Douthat is excluding—are the ones that led to Davis’s execution.
We can, of course, work to reform the ways that the criminal justice system seems to reward corruption and careerism—the way prosecutors are encouraged to construe their jobs as getting convictions not seeing that justice is done. It will be a long uphill climb, but at least I can see it as a possibility. I’m sure that these elements came into the Troy Davis case. But something else operated as well.
I suppose it’s possible that, in the Davis case, corrupt officers, determined to get a conviction in the murder of a fellow officer, coerced false statements from scared witnesses in the full knowledge that they were railroading an innocent man. But that seems like a level of conscious maleficence to which the average human being doesn’t often rise. It seems more likely that, having had the killer named to them, they went to find witnesses who could confirm to them what they already knew. The assumption was that these recalcitrant witnesses needed to be badgered and threatened into spilling what they knew, and the danger that the officers might, with their badgering and threats, actually produce false statements receded from awareness. It’s the same dynamic that made the day care cases of the eighties and nineties such colossal disasters.
I was struck by the way that Officer McPhail’s widow insisted on Davis’s guilt. There seemed to be plenty of room for doubt. The case, from an objective point of view, had been shot full of holes, and the evidence now seemed to point to another man. You can dismiss the prosecution’s resistance as corruption and careerism if you like, but why wasn’t his widow more interested in making sure that, if a man were going to pay for killing her husband, it was the right man?
It’s the same reaction that you heard when the West Memphis Three were freed last month. There was the fervent belief that three child-killers had just been set free and a resentment, as in the Davis case, at interference from “outsiders” who didn’t understand. The question is what were those outsiders outside of? And what didn’t they understand?
Here’s what you will never reform: the way that not just individuals but groups form narratives and how quickly those narratives become impermeable to outside information. The outsiders stand outside the narrative, and the proven difficulty—in the Davis case, in the West Memphis Three case, in the day care cases—of getting those inside the narrative to step outside it should give Douthat pause. We’re no longer talking about reforming a system. We’re talking about basic human irrationality, and a great many Troy Davises would have to die before we reform that.