Thursday, September 22, 2011

Forgetting that Race Matters: Troy Davis, AEDPA, and the Death Penalty in Georgia

David Baldus was a brilliant legal scholar who is best known for his work on race and the death penalty.  Professor Baldus and several of his colleagues conducted a study of the death penalty in Georgia and found that, when controlling for 230 different factors, defendants accused of killing white victims were four times more likely to be sentenced to death than defendants accused of killing black victims.  In the 1987 case of McClesky v. Kemp, the Supreme Court, in a 5-4 decision, found that this evidence, which indicated that race discrimination was a systemic problem in the Georgia criminal justice system, did not prove that the conviction and death sentence of Warren McClesky was racially motivated.  Justice Powell, writing on behalf of the majority, found that the risk of racial bias in the administration of the death penalty, even if supported by social scientific research, was not constitutionally significant in “light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants.”  In particular, McClesky did not show racial bias on the part of the law officials associated with his case and therefore was not entitled to relief. 

The safeguards that Justice Powell pointed to in McClesky---procedural rules that allow defendants to introduce mitigating evidence that might influence the jury not to impose the death penalty, the fact that death sentences are automatically appealed to the state supreme court among other things---do not mean much if the entire system is racially biased.  This issue has come to forefront again because of the case of Troy Davis, an African-American executed yesterday in Georgia for the 1989 murder of Mark MacPhail, a white police officer.  Davis was executed despite the fact that 7 of the 9 eyewitnesses who testified against him recanted in the years since his jury trial.  Moreover, there was no conclusive evidence such as DNA linking him to the crime, and the ballistics evidence has also been called into doubt in the years since Officer MacPhail’s death.  Davis’s many supporters believe that this far exceeds the reasonable doubt necessary to overturn his conviction.

The problem is that, once convicted, the standard for a prisoner challenging his conviction, at least in federal court, is not reasonable doubt.  The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires that a person collaterally challenging their state conviction in federal court show that the state court’s resolution of their case involved an unreasonable application of clearly established federal law or that their conviction was based on an unreasonable determination of the facts.    

In his appeals, Davis argued that the witness recantations cast doubt on his conviction, but thanks to AEDPA, Davis had to forego any other arguments challenging his conviction that did not fit within the narrow grounds outlined by the statute.  AEDPA also does not leave much room for subsequent courts to consider the context in which the death sentence has been imposed.  For this reason and others, throughout much of this dispute over Troy Davis there has not been a great deal of focus on what Professor Baldus showed us more than twenty years ago about Georgia: race matters in the implementation of the death penalty.  Race has certainly been lurking in the background of this debate, but it has not been as prominent as it should be given that we have solid empirical evidence that race really does influence whether someone is sentenced to death.  The McClesky decisionalthough declining to find that the defendant was entitled to relief, does not undermine the validity of the Baldus study and its conclusion that race matters in this context.  

Given this, it is entirely possible that since Davis was convicted of killing a white police officer (and in 1989, only two years after McClesky), the jury considered the race of his victim in sentencing him to death.  Moreover, racial considerations made it unlikely that new evidence, such as the eyewitness recantations, would have convinced a trier of fact to disturb the original sentence on appeal.  Whether the trier of fact has given appropriate weight and consideration to new evidence could conceivably be affected by the larger systemic issues of race that infected the system.  And even if there is only a small probability that race was a factor in Troy Davis's case, the fact that the system as a whole is infected by racial bias still matters and should matter in implementing something a final and irrevocable as the death penalty.    
Indeed, Troy Davis’s execution leaves us with important questions about race and the future of the death penalty.  Given the systemic problem of race discrimination that has been empirically proven to exist in Georgia’s criminal justice system, what kind of “safeguard” can effectively minimize racial bias against defendants convicted in this system?  Federal habeas relief used to be one avenue (and it is questionable whether this was sufficient), but AEDPA has limited both the legal and factual questions that defendants can raise in order to challenge their state convictions in federal court. 

At the end of the day, Troy Davis may, very well, have been guilty---we will never know.  Mark MacPhail’s family cannot be faulted for seeking justice against a man whom they believed committed the ultimate wrong against them.  Let us not forget the human side of all this.  But what still remains is an uncertainty in the process that we must rightly consider, as a society, in punishing those who wrong us.  The possibility that race plays any role in the administration of the death penalty should make us hesitant to use it.  This is especially true when our system relies on fallible human beings to weigh the evidence in determining whether to impose the ultimate punishment; moreover, AEDPA has limited the scope of the inquiry that subsequent courts can engage in to assess the propriety of the decision.  As a society we have to figure out if, when we make these life and death decisions, we care about getting it right.    

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