in Bioethics, Jurisprudence, Justice, Politics, Theology Tags: Bible, bioethics, death penalty, jurisprudence, justice, Kingdom of God, Messiah, pacifism, Paul, politics, sacrifice, shalom, theology, Troy Davis
One might think that a guy excited about Jewish-Christian ministry would surely dedicate some verbiage today on the scheduled bid for Palestinian statehood in the UN security council. Or at least gripe about the facebook news feed update inflicting confusion and distress across the Interwebs, like virtually everybody else is doing at the time of this post. But the single most noteworthy event on my mind right now is the probable, unjust execution of Troy Davis tonight and the exceedingly costly lesson it should teach us.
Troy Davis is an American death row inmate convicted of the murder of a Savannah, Georgia police officer, Mark MacPhail, in August of 1989. According to Amnesty International’s dedicated page on the matter, the case against Mr. Davis “consisted entirely of witness testimony which contained inconsistencies even at the time of the trial. Since then, all but two of the state’s non-police witnesses from the trial have recanted or contradicted their testimony.” In fact, these inconsistencies prompted the U.S. Supreme Court to order a federal district court in Georgia to review Mr. Davis’s situation to determine whether or not new evidence had arisen that could clearly establish his innocence. This resulted in a June 2010 evidentiary hearing during which nearly all of the witnesses who had originally testified against Davis altered their stories, some claiming that they had been coerced by police in their original testimonies and others alleging that a completely different assailant had actually confessed to committing the crime if question. In fact, you can view a .pdf of multiple, sworn affidavits recanting testimony or statements given in Troy Davis’s case right here.
But this is where things get complicated. As Bob Herbert’s 2009 article in the New York Times describes the matter:
There was no physical evidence against Mr. Davis, and no murder weapon was ever found. At least three witnesses who testified against him at his trial (and a number of others who were not part of the trial) have since said that a man named Sylvester “Redd” Coles admitted to killing the police officer.
Mr. Coles, who was at the scene, and who, according to witnesses, later ditched a gun of the same caliber as the murder weapon, is one of the two witnesses who have not recanted. The other is a man who initially told investigators that he could not identify the killer. Nearly two years later, at the trial, he testified that the killer was Mr. Davis.
How could a just basis for the execution of any individual be drawn from such a tenuous body of evidence? It seems that much has turned on U.S. District Court Judge William T. Moore Jr.’s August 24 rejection of Troy Davis’s petition on the grounds that Davis failed to prove by “clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.” Speaking self-consciously as one not extremely well versed in American jurisprudence, this is an exceptionally precarious measure against which to hold a man’s life in the balance. Since the state of Georgia requires a unanimous jury to avoid a mistrial, just one juror dissenting from a guilty verdict at Davis’s original court date would have been sufficient to forestall his conviction and prompt a retrial at most or a dismissal of his case at least. But now, the situation is reversed; the burden of proof lies on Davis’s shoulders to demonstrate that all reasonable jurors would have reached the conclusion that he was not guilty based on updated evidence.
I’m aware of the fact that there’s a litany of case history upon which Judge Moore based his ruling. Its goal is to uphold the integrity of past legal proceedings even while attempting to course-correct for substantially new information, and while this makes plenty of sense in general, the matter is tensed when something as final as the taking of a life is in question. I am in no way attempting to position Moore as the villain of this story, nor am I presently interested in analyzing Coles’s relative guilt or innocence and its implications for Davis’s case. Nor is my purpose to argue against the death penalty at the level of pacifistic principle, to claim that the practice of state execution is inherently barbaric and should be outlawed because it is always wrong in every circumstance to take a human life.
Theologians have debated this matter for centuries, and despite the fact that Jesus himself rebuked his disciples when they attempted to assault others according to Luke 9 (and even healed at least one person his disciples had impertinently attacked when he was arrested), Jesus also kicked arse when appropriate and recommended a variety of submission to earthly, governmental authorities. Perhaps explicitly expanding on this point in the thirteenth chapter of his letter to the church in Rome, Paul asserted that such “rulers do not bear the sword for no reason. They are God’s servants, agents of wrath to bring punishment on the wrongdoer.” There is such a thing as governmentally effected, non-pacifistic justice.
Rather, the main point I want to make in this post is this: Even if there are circumstances in which it is legitimate to take a human life, the American justice system’s particularities repeatedly fail to yield the most just state of affairs for our society in the case of the death penalty. At the time of this post, nearly 150 previously convicted death row inmates have either been acquitted or had their charges dismissed since 1973 upon investigation of new evidence or review of past court proceedings–only 17 of which depended on the submission of new, DNA-based evidence. Our justice system can reverse an indefinitely lengthy prison term when it becomes clear that a mistake has been made; it cannot reverse the taking of a human life.
Furthermore, multiple studies have emerged demonstrating that is actually more costly to execute convicted individuals rather than imprison them for life without the chance of parole. One California-based study found that the state could save $1 billion in five years by replacing the death penalty with permanent imprisonment. (And if you doubt the legitimacy of these claims, visit this website presenting a list of noteworthy pros and cons arguments comparing the costs of the death penalty versus life in prison.) Not only is the death penalty extremely risky in practice at the bioethical level, it is literally worse for our economy.
But speaking now as an aspiring theologian, one of the main points that keeps arising in my mind regarding the practical problems with the death penalty and American jurisprudence is its pitting a sense of retributive justice against redemptive justice. As reported by a Fox News article posted yesterday on Troy Davis’s case, the son of the police officer who was gunned down, Mark MacPhail Jr., believes that the state of Georgia’s repeated denials of Davis’s requests for clemency boil down to one, all important result, that “justice was finally served for my father.” If Davis is not guilty as many claim, MacPhail is tragically misguided, and another injustice has been perpetuated from the moment Davis was imprisoned up to the final hour of his incarcerated life. But even if MacPhail is right, even if Davis actually did murder his father, executing Davis will not reverse this fact. Killing Troy, even if he is guilty, will not bring back Mark’s dad, and it will not replace the years of loss with which Mark has coped from his infancy onward.
The Bible has two, key terms reserved for its description of divine justice: shalom and the Kingdom of God. It is shalom that both Troy and Mark and pretty much everyone else needs today, and that is a state of peace, well-being, and wholeness rooted in the self-giving being of God in which we have the opportunity to participate. Human retribution cannot accomplish wholeness, even when it is directed against a truly guilty party. Only the redemptive grace and love of God can repair Mark’s loss if Troy is guilty, and only that same love and grace can heal Troy’s wounds if he is innocent. The death penalty interjects a time limit on this process for the sake of retribution that tenses our opportunity to experience justice for the sake of redemption. It does so in an extremely problematic way for those of us who are convicted, in a dramatically irreversible way for those of us who are executed, and in a deeply costly way for those of us who are free.
Moreover, this willingness to trump God’s redemptive justice with humanity’s attempts at retributive justice in the case of the death penalty threatens to obscure the fact that the only perfectly just state of affairs for which we can hope has already been inaugurated and paid for through the penalty God willingly took upon God’s very self in Jesus’s sacrifice on the cross. The author of the book of Hebrews lifted a passage from Psalm 45 by putting it this way: Through Messiah’s death and resurrection, God effected a “throne” that will last forever, “a scepter of justice will be the scepter of your kingdom. You have loved righteousness and hated wickedness; therefore God, your God, has set you above your companions by anointing you with the oil of joy.” It is only in the Kingdom of God, heralded by Jesus’s first coming and eventually completed through his second, that society will finally be made perfectly just. In the mean time, we can find no lasting consolation in vengeance for wrongdoing because God is the only being capable of equitably executing such, and God has already freely elected to absorb the cost of this upon God’s very self. As Paul put it while quoting from Deuteronomy 32:35 in Romans 12:19, “Beloved, never avenge yourselves, but leave it to the wrath of God, for it is written, ‘Vengeance is mine, I will repay, says the Lord.'”
We should work hard for justice, and there is a legitimate place for our governments to attempt to effect such. Again, this is not a diatribe for the sake of pacifism, full stop. But the ethical and theological costs of the death penalty far outweigh any possible benefit when considered from a general, practical standpoint. And more specifically, our country will execute Troy Davis, a man far from clearly guilty, this very night unless some last-minute, highly unlikely reversal of fortune occurs. Countless people have petitioned on his behalf across the religious and political spectrum, including Pope Benedict XVI, President Jimmy Carter, former U.S. Representative Bob Barr, ex-Justice Department official Larry Thompson, former FBI Director William Sessions, the Rev. Al Sharpton, Amnesty International, and the NAACP to no avail.
If it’s too late to stop an unjust execution for Troy Davis, may we learn an exceedingly costly lesson about how we can and should live better in the days ahead. And may God bless you and I to labor to that end until Messiah returns in glory. (Note: I am indebted to my San Franciscan brother, Marcel Jones, for initially drawing my attention to this matter.)
Update: The state of Georgia has ended the life of Troy Davis, confirmed dead at 11:08pm EST. Immediately before Davis was administered a cocktail of lethal injection, a reporter with the Associated Press recorded his final words, as follows:
I’d like to address the MacPhail family. Let you know, despite the situation you are in, I’m not the one who personally killed your son, your father, your brother. I am innocent.
The incident that happened that night is not my fault. I did not have a gun. All I can ask … is that you look deeper into this case so that you really can finally see the truth.
I ask my family and friends to continue to fight this fight.
For those about to take my life, God have mercy on your souls. And may God bless your souls.
Yesterday, Davis sent this statement through Amnesty International: “The struggle for justice doesn’t end with me. This struggle is for all the Troy Davises who came before me and all the ones who will come after me. I’m in good spirits and I’m prayerful and at peace. But I will not stop fighting until I’ve taken my last breath.”
If you want to join that fight in his stead, here is one beginning.