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The Executions of Troy Davis and Lawrence Brewer: A Reflection

September 28, 2011

The recent execution of Troy Davis inspired a flurry of debate and media coverage. Notably, that flurry included op-eds from some unusual sources in support of commuting his sentence from death to life imprisonment: former Congressman Bill Barr and former FBI director William Sessions, both prominent conservatives and former prosecutors. A sign of the debate’s intensity is that it has continued even after Davis’s execution—from criticism of the way Davis’s case was commonly portrayed to reflections on its implications for the criminal justice system as a whole. Meanwhile, the execution of Texas death row inmate Lawrence Brewer attracted little attention. Guest blogger Kahlil Williams, a recent graduate of Columbia Law School, weighs in with some thoughts on the two men’s executions.

Last week, two Americans were put to death by lethal injection. One man, Troy Davis, was convicted for the 1989 murder of an off-duty police officer in Savannah, Georgia; the other, Lawrence Brewer, was found guilty of dragging a man to his death with a truck near Jasper, Texas in 1998. While they were executed on the same day by the same means, their punishments evoke vastly different emotions.

But should there be a difference?

Mr. Davis, who was black, made international news because several key witnesses changed their stories after trial; his case involved the killing of a defenseless white man who was assisting a homeless man.  Mr. Brewer’s death received almost no coverage, however. That was at least partially because of its coincidence with Mr. Davis’ execution, and perhaps also because 1) he was a White Supremacist who targeted and killed an African-American man in one of the most horrific ways imaginable, and 2) was found guilty through DNA evidence.

Late Wednesday, my heart broke for Troy Davis as he maintained his innocence, and, to be honest, I had far less sympathy for Mr. Brewer, who uttered no remorse for his crime. But after further reflection, the fact that I treated them differently bothered me. As lawyers and law students, we’re taught to draw lines, but drawing lines based on brutality seems problematic here. Similarly, it seems wrong to draw the line on degrees of doubt where, after juries have decided and judges have ruled in several stages of review, the cases are deemed final.

So where do we draw the line? Can we?

Society’s views on capital punishment are complex. Some argue that states should not execute people for any reason—it cruelly degrades human life without actually deterring murder.  But, Americans generally support the death penalty, though we’re more closely divided where there’s a choice between capital punishment and life imprisonment without possibility of parole. And, notwithstanding moral objections, the capital punishment system is still plagued by problems of fairness, costliness, and potential racial bias.

To begin, the death penalty is sought unevenly by prosecutors, which raises the issue of equal treatment. Philadelphia provides some contrast: former District Attorney Lynne Abraham was dubbed “The Deadliest DA” by the New York Times for her aggressive pursuit of the death penalty, while current DA Seth Williams has suggested that it should be sought somewhat less frequently. But should it matter under whose administration a person is convicted, especially when the punishment is so severe?

It doesn’t in Pennsylvania, if only because the Commonwealth rarely carries out death sentences. Since Pennsylvania reinstituted the death penalty in 1978,only three people have been executed, even though Pennsylvania has hundreds of death row inmates. The death penalty appeals process takes decades and costs millions of dollars, nearly 3 times the cost of life imprisonment. Indeed, the inefficiency of Pennsylvania’s system caused outgoing Gov. Ed Rendell to say that Pennsylvania should either streamline capital punishment or do away with it.

Added to these troubles, numerous studies have shown that African-Americans are far more likely to receive capital punishment than Whites, particularly in instances where Whites are victims. Courts have grappled with this issue for many years, as illustrated in Furman v. Georgia (“if any basis can be discerned [for capital punishment] . . . it is the constitutionally impermissible basis of race”) and McCleskey v. Kemp, where the Supreme Court recognized substantial disparities between Blacks and Whites in capital punishment, while ruling that systemic evidence is insufficient to prove bias in an individual case. The disparities persist in Pennsylvania—minorities are disproportionately represented on death row, and African-Americans in Philadelphia are nearly four times more likely to receive a death sentence than other defendants who have committed similar crimes.

These factors, taken together, are sobering, which is why I found it difficult to square this week’s events. Can we acknowledge that the system is broken, yet find either of these executions acceptable? And even if you take the view that Mr. Brewer’s execution had nothing to do with the weaknesses of the system, if Troy Davis’ case is support for abolishing the death penalty entirely, is it hypocritical to view Mr. Brewer’s execution as justified, even though it was a brutal hate crime with less doubt about the identity of the killer? Is the Davis case about the system or about morality? Is it politics or principle?

I don’t have answers to these questions, but as the young lawyers who prosecute and defend these types of cases, as those who will make the decisions that shape our criminal justice system, I believe we have an obligation to discuss them seriously and honestly. I welcome your thoughts in the comments section.

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