The death of Troy Davis

On September 21, 2011, at 11:08 pm Eastern Daylight Time, Troy Anthony Davis was declared dead.

Cause of death: lethal injection. Administered by: employees of the state of Georgia. Legal justification of homicide: a court order. Grounds for the court order: Troy Anthony Davis’s murder conviction.

Societies punish crimes for specific reasons. Section 718 of the Canadian Criminal Code is a good summary of purposes of criminal sentencing:

(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Death penalty doesn’t rehabilitate or deter the offender, doesn’t compensate anyone, and doesn’t make the very dead offender feel any responsibility for or acknowledge anything. It should be pretty clear by now that it doesn’t deter others too. It does separate the offender from society, so to speak, but usually prisons do that job perfectly.

But denounce, it does.

So the only true reason for death penalty is denunciation. All other reasons either do not exist or do not require death penalty. Societies, at least rational societies, kill only to denounce, to show contempt for the crime, to assign a special measure of gravity to the illegal act. There is no other reason. The only reason for death penalty is really a symbol.

No doubt, denunciation can be a valid reason. But let’s see what price we pay for denouncing by death.

You can look up Troy Davis yourself and find out that his conviction was based on eye-witness testimony much of which was later recanted. I probably don’t need to explain why this creates a possibility that he was innocent. This possibility is also called reasonable doubt. And the supreme value of our society is preservation of innocent life. You would think the courts would choose the chance and the possibility of preserving innocent life over a chance to denounce murder. After all, no one would think more kindly of murder if Troy Davis got a life sentence or if he was released based on reasonable doubt in his guilt. And there is another value the courts would have protected if they spared Davis’s life: fairness. The more opportunities an accused person has to clear his name, the more fair our legal system is.

But the courts chose a different value over all the others: finality. Its purpose is to unclog our court system and to give litigants some sort of confidence that their case is not going to be reopened. This value is very important in civil litigation: hence, limitation periods, res judicata, etc.

In criminal law, finality serves victims and their families and the public purse to some extent. It doesn’t usually serve the accused, and it certainly didn’t serve Troy Davis.

The courts chose finality for the victim’s families and the public purse over fairness to Davis and preservation of his potentially innocent life. You decide if it was the right choice.

Pulat Yunusov is a Toronto litigation lawyer.

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