Apr 6, 2011
US Supreme Court refuses Troy Davis’ Appeal Against Death Penalty
Readers of HRinI might be familiar with the story of Troy Davis, a man who has been on death row in Georgia, USA for over two decades. Davis was convicted in 1991 of the murder of off-duty police officer Mark Allen MacPhail. There was no physical or forensic evidence linking Davis to the crime and the murder weapon was never found. Seven of the nine witnesses whose testimony was used to convict Davis later recanted, many of them saying that they were pressurised by the police into saying that Davis was the murderer. I blogged last year about a federal judge’s ruling that Davis had failed to show his innocence in an evidentiary hearing mandated by the US Supreme Court. Last week, the US Supreme Court refused Davis’ final appeal. This means that Davis will soon be facing his fourth execution date, his last one having been halted by the Supreme Court a mere two hours before the scheduled execution.
In three short orders the Supreme Court dismissed Davis’ petition for an order of certiorari. The Court gave no reasons – as Lyle Denniston at Scotus Blog notes, this is quite unusual for a dismissal. This refusal of review is a tragedy for Davis, and perpetuates a grave injustice against him, given the fresh evidence that has come to light since his conviction (see my previous blog). The decision is also highly problematic in light of the fundamental questions Davis’ case raises about the constitutional status of claims of actual innocence. It is on this second aspect of the case that I will focus here.
Davis’ lawyers had asked the Supreme Court to announce a standard to be applied to freestanding innocence claims – in other words, claims that the person is actually innocent, without alleging any constitutional violation. A ruling on this question would have been most welcome, since the Court has never explicitly pronounced on this question. The closest answer we have is the following excerpt from Chief Justice Rehnquist’s decision in a case from 1993:
Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding….This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution—not to correct errors of fact. [Herrera v. Collins, June 25, 1993
The majority in Herrera recommended that those claiming actual innocence seek executive clemency from the governor of the state. The Court seemed to prioritise process (or procedural fairness) over (constitutional) justice. Indeed, as Steiker and Steiker have noted, Chief Justice Rehnquist was “almost cavalier” in rejecting the notion that courts had any obligation to correct convictions “merely” because the wrong person had been condemned in the absence of some separate constitutional violation.
Herrera was one of the cases on which Justice Scalia relied in his dissent (along with Justice Thomas) from the Supreme Court’s highly unusual decision to order an extraordinary evidentiary hearing to test Davis’ claim of innocence. Importantly, Justice Scalia held that that the question of actual innocence was irrelevant.
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. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.
The majority fundamentally disagreed with Justice Scalia, holding that “decisions of this Court clearly support the proposition that it “would be an atrocious violation of our Constitution and the principles upon which it is based” to execute an innocent person.” (Citations omitted) The majority ordered the evidentiary hearing.
In his ruling (available here and here) on Davis’ evidentiary hearing US District Court Judge William T. Moore held that the execution of an innocent person would be unconstitutional. Nevertheless, he set a very high standard of proof in judging whether Davis was actually innocent. In the end, he held that Davis had failed to show “by clear and convincing evidence that no reasonable juror would have convicted him in the light of the new evidence.” This prohibitively high standard negates the importance of the (putative) constitutional status of freestanding innocence claims, and it is extremely disappointing that the US Supreme Court did not see fit to review it.
In light of last Monday’s refusal of review, it is important to notice the potential of Eight Amendment arguments in the broader campaign for abolition. In an interview in 2010 Carol Steiker (HLS) suggested that a strong enough movement by the remaining death penalty states towards abolition could lead the Supreme Court to declare capital punishment to be inconsistent with ‘evolving standards of decency’, the constitutional test for ‘cruel and unusual punishment’. For Troy Davis, however, such arguments are purely academic. His only remaining hope is that the Georgia State Board of Pardons and Parole will listen to his pleas (and those of his many supporters, including former US president Jimmy Carter, Archbishop Desmond Tutu and Pope Benedict XVI) for clemency.
The Amnesty International petition opposing the death penalty for Troy Davis is here http://takeaction.amnestyusa.org/siteapps/advocacy/index.aspx?c=jhKPIXPCIoE&b=2590179&template=x.ascx&action=12970
