Troy Davis and Death Penalty Conundra

The execution of Troy Davis has engendered yet another paroxysm of attacks on the existence of the death penalty in the American criminal justice system. This is an issue—capital punishment—on which this author has written before.

I am not going to go over the evidence in the Davis case because it is singular, unrepresentative and distracting to the serious issues surrounding arguments in favor of and in opposition to capital punishment. Moreover, the general innocence of Davis is far from established fact, but let's concede this was a questionable application of the ultimate penalty.

Two articles written pursuant to the execution illustrate why this hard case makes for irresponsible recommendations.

The first article in question is Ross Douthat's "Justice After Troy Davis" in The New York Times. This piece, a badly reasoned conservative piece (which may be why the Times printed it), argues among other things that one of the salutary consequences of the death penalty is that it focuses public attention on weaknesses in the criminal justice system. The article is skewered by Leon Wieseltier in The New Republic for its heartlessness and casuistry.

Granted.

Wherein there is racial discrimination in the use of the death penalty, it should be eliminated, perhaps by more liberal usage.

The arguments in favor of the death penalty that are probative include the following: 1. Some states don't have life sentences without parole; 2. Some crimes are so heinous that they should end in death for the perpetrator (e.g., Timothy McVeigh, the truck-bombing killer of Oklahoma City whose terrorism caused 168 deaths); and 3. There must be a penalty for lifers who order or perpetrate further murders.

Some arguments are completely contaminated by the inability to adjudicate them honestly and validly: despite the conviction of all anti-death penalty pundits who downplay or dismiss the "deterrent effect" of capital punishment, there is no serious controlled analysis of capital crime and capital punishment that can measure the behavioral effects on would-be killers of serious and widespread implementation of execution.

Almost forty years ago I told my students that there were public policy disputes that would never go away, including abortion and the death penalty. Neither lends itself to dispositive evidentiary analysis by fair-minded folks.

And the infernal, unstable public opinion polls that show the public as conflicted or zealously in favor of capital punishment when a particularly egregious capital crime is in the news can always be used to provide support for both sides of the death penalty debate.

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Prof. Vatz, a Cockeysville resident, teaches Persuasion at Towson University and is the author of The Only Authentic Book of Persuasion (Kendall Hunt, 2012)