We’ve already met Mary’s father in these pages. The old man would outlive his child, which no parent ought to do, but he made it up to her by the way he checked out.
The two cases are closely related. The father killed one John Jacobs, a half-breed, because he had been the chief witness against his daughter. The daughter allegedly killed a “female” who had “alienated her husband’s affection.” Despite public sympathy being associated with the Indian Abram, the law was obliged to take its course. (Source)
On this date in 1915, a quintet of African Americans died in South Carolina’s electric chair during a 70-minute span.
Joe Malloy was put to death for killing two white men four years before; the other four executed on this date were convicted together of murdering 73-year-old Confederate veteran John Q. Lewis. They were John Crosby, Nelse Brice, and — our principal concern today — Thomas and Meeks Griffin.
In this case, and even though public opinion was predictably inflamed at the aged veteran, the Griffins weren’t lynched: indeed, prominent white people in the community, such as the mayor and the sheriff, rose to the Griffins’ defense to the extent of signing a petition for executive clemency. They didn’t believe then that the thief whose accusation condemned the brothers was credible.
More than likely they suspected Lewis’s 22-year-old black mistress, Anna Davis, and/or her husband — and undoubtedly, they would have known exactly why this scandalous angle was not pursued in court.
Still, South Carolina’s governor reckoned that they’d had their day in court, the victims deserved closure, and whatever other equivalents of the familiar modern-day rationales one might care to name.
Almost surely, this distant injustice would be lost to time were it not for the Griffins’ famous great-nephew, the radio host Tom Joyner.
But the broadcaster exhumed it with gusto, and, two years ago, was able to secure a posthumous pardon from South Carolina based on the weakness of the original case. It’s thought to be the first official posthumous pardon the state has granted to any executed persons.
But we do want to extend the Palmetto State the credit due to all its sons whose signatures graced the disregarded clemency petition way back when. More than that: The State editorialized, confusedly but forcefully, against the manifest racial discrepancies in capital sentencing on the occasion of this quintuple-execution. (Oct. 1, 1915) These questions, ever present, are more sincerely grappled with in this column than we can manage today.
* You can watch the big reveal when a flabbergasted Joyner first hears about his ancestors: it’s quite a moment.
This date in 1832 was the Republic’s only execution of a female in Tyler County, West Virginia (then part of Virginia): a slave named Lucy who murdered the daughter of a neighboring family.
Detail on this case comes salvaged from the now-defunct (we think) death penalty history site Before the Needles:
Just across Middle Island from the Wells home lived a family which had a daughter named Mary Ann Fletcher.
Communication between the two homes was by canoe or johnboat and quite frequently Lucy was sent to the creek bank to set Miss Fletcher across the stream for a visit to the Wells home when they heard a halloo from the opposite shore. For some reason Lucy became intensely jealous of the attention which her master’s family lavished on the young Fletcher girl and determined to slay her.
One day after visiting the Wells home Lucy was sent with Miss Fletcher to set her across the creek and after a little longer delay than usual Lucy returned to “Stonehurst” her usual calm self, but later in the evening Mr. Fletcher came to the creek bank and hallooed across to “Stonehurst” and asked if they would send Mary Ann home immediately, as it was growing late.
Squire Wells and his family wondered what had happened, but did not think of anything wrong untill Mr. Fletcher called to them a second time. Lights were secured by both families who went to the crossing and in a short time the body of Mary Ann, drowned, was discovered.
An examination of the body disclosed the she had evidently died from foul play, because the fingers of both hands had been badly crushed and she also had bruises on her head and face. Lucy was immediately suspected and shortly confessed that she had pushed Miss Fletcher out of the boat, and when she did not readily drown, and had caught the sides of the canoe with her hands, she (Lucy) had pounded Miss Fletchers hands with the paddle, struck her over the head several times and pushed her under the surface of the stream.
On this date in 1906, Adolph Weber hanged in California for “one of the most revolting [crimes] in the annals of criminal history”:* the slaughter of his entire family.
On the night of Nov. 10, 1904, a fire at the Auburn mansion of Julius Weber, the onetime owner of the (still-extant) Auburn Alehouse, raised the town’s alarm. Firemen responding discovered four bodies within: Julius, his wife, and two of the couple’s three children. The coroner’s inquest soon determined that all four victims had met a violent death (three by shooting, one by beating) prior to the conflagration, and suspicion naturally fell on the one kid who survived and now stood to inherit the boodle.
(And, it transpired, had robbed a bank earlier that year.)
“Young Weber,” as the papers began to call him, soon became the object of widespread public opprobrium; the case against him was circumstantial but, with the addition of a man who claimed to have sold Weber the very make and model of a pistol found hidden some days after the crime, more than compelling enough for the judiciary. (The text of an appellate decision here outlines the case in greater detail.)
Meanwhile, the legislative branch got busy on a new 1905 Patricide Law to disinherit any homicide beer baron scions of the future. Since the previous statutes had not bothered to anticipate the present circumstance, Adolph Weber inherited all his purported victim’s money (after all, the other potential heirs were also now dead): he promptly blew through most of it on his legal expenses.
Weber’s phenomenal sangfroid from the moment of his arrest up to that of his noosing was his outstanding characteristic. Considered horrifying “vanity” and coldness while his guilt was adjudicated —
The life and character of Adolph WEBER have come under more notice than those of perhaps any other California criminal, unless DURRANT was the exception. And he is more of an enigma than DURRANT. The latter was industrious in protesting his innocence, while WEBER has never deigned to aver his, except when the direst question of his guilt or innocence was put to him at the trial, and even then his answers were in monosylables.
On this date in 1778, Revolutionary War-era bandit James Fitzpatrick was hanged — very badly — at Chester, Pennsylvania.
Fitzpatrick was then, and still is now, a legendary character in Chester County. He’s better known as “Captain Fitz” or, with a bit more flair, “Sandy Flash”.
Born to Irish immigrants in Chester, Fitzpatrick joined up with the Continental Army when the Revolutionary War broke out.
But after being subject to the commonplace but brutal punishment of flogging for some failure of military discipline, Fitzpatrick deserted, swimming off Long Island in the dead of night and eventually returning home. There, he was recognized as a deserter and clapped in jail until he agreed to fight again.
All this built up a terrific grudge in the young man’s heart, and he “agreed” just long enough to get out from behind bars and abscond again. After warding off yet another press gang sent to retrieve him, Fitzpatrick vengefully took to the road.
This was not necessarily out of bounds for Fitzpatrick’s milieu. As detailed by Rosemary Warden (“‘The Infamous Fitch': The Tory Bandit, James Fitzpatrick of Chester County,” Pennsylvania History Summer 1995):
Fitzpatrick’s bold outlawry must be seen against the background of many Chester Countians’ lack ofsupport for the Revolution, ranging from passive neutrality to outright loyalism. Forty percent were Quaker, settled most heavily in the eastern township. Only a small number actively supported the Revolution or the British cause … Fitzpatrick’s two favorite targets, militia recruiters and tax collectors, often met violent opposition in Chester County during this period, and not always from loyalists …
It is not surprising that revolutionary General Anthony Wayne wrote to Council President Thomas Wharton in the spring of 1778, to suggest that he stop recruiting troops in Chester County, a wasted effort, and concentrate on raising men in Berks, Lancaster, York, or Cumberland Counties. Nor is it surprising that a loyalist bandit who particularly targeted militia officers would find clandestine support and safe hideouts in Cheser County.
Playing to the hilt the part of “Tory highwayman,” Captain Fitz targeted Chester County Whigs, and especially agents of the revolutionary government. And he did not neglect the opportunity to inflict with the flog the suffering he had once endured himself. Still,
Despite his many crimes, there was a rough chivalry in the character of the man which exhibited itself in his marked gallantry towards women, in his open, generous disposition to aid them on when ill fortune bore heavily; indeed, he was never known to rob a poor man or ill-treat a female. Many are the instances related when he bestowed upon the destitute that which he had taken from those in good circumstances, and the weak or defenseless never suffered at his hands. On one occasion an old woman, who made a meagre living by peddling from house to house odds and ends of female apparel, encountered Fitzpatrick in the neighborhood of Caln Friends’ meeting-house. She was at the time on her way to Philadelphia to buy goods, and all the money she possessed was on her person. She had never seen Capt. Fitzpatrick, and she informed, the tall, handsome stranger that she was told that the outlaw had made some demonstrations in that neighborhood a short time before, and she was afraid that she might fall in with him and be robbed of all her money. Fitzpatrick, by a few questions, drew from her the particulars of her business, and her difficulty in winning an honest livelihood. He then good naturedly told her she need be under no apprehension, Fitzpatrick never warred upon the weak or defenseless, that she was talking to that personage; and taking a purse from his pocket containing several gold pieces, he gave it to her to aid her in increasing her scanty stock of goods. Then, wishing her a safe journey, he turned into the woods and disappeared.
What a guy.
His prey among the Whig well-to-do not being constrained to treat Fitz with any similar measure of gallantry, the bandit was at length captured when, in the course of raiding a household, he briefly set down his weapons — and his hostages jumped him. (The hostages in question had an argument with each other afterwards over who should get the reward.)
“Sandy Flash” is a prominent character in Bayard Taylor‘s portrait of revolutionary Pennsylvania, The Story of Kennett, where, Turpin-like, he’s “transformed” (the author’s own words) “from a living terror into a romantic name.” Here, Bayard dramatizes an allegedly real exploit, in which Fitzpatrick boldly presents himself at a public inn* where a posse hunting him has holed up.
All eyes, turned towards the crossing of the roads, beheld, just rounding the corner-house, fifty paces distant, a short, broad-shouldered, determined figure, making directly for the tavern. His face was red and freckled, his thin lips half-parted with a grin which showed the flash of white teeth between them, and his eyes sparkled with the light of a cold, fierce courage. He had a double-barrelled musket on his shoulder, and there were four pistols in the tight leathern belt about his waist.
Barton turned deadly pale as he beheld this man. An astonished silence fell upon the group, but, the next moment, some voice exclaimed, in an undertone, which, nevertheless, every one heard,—
“By the living Lord! Sandy Flash himself!”
There was a general confused movement, of which Alfred Barton took advantage to partly cover his heavy body by one of the porch-pillars. Some of the volunteers started back, others pressed closer together. The pert youth, alone, who was to form the third party, brought his musket to his shoulder.
Quick as lightning Sandy Flash drew a pistol from his belt and levelled it at the young man’s breast.
“Ground arms!” he cried, “or you are a dead man.”
He was obeyed, although slowly and with grinding teeth.
“Stand aside!” he then commanded. “You have pluck, and I should hate to shoot you. Make way, the rest o’ ye! I’ve saved ye the trouble o’ ridin’ far to find me. Whoever puts finger to trigger, falls. Back, back, I say, and open the door for me!”
Still advancing as he spoke, and shifting his pistol so as to cover now one, now another of the group, he reached the tavern-porch. Some one opened the door of the barroom, which swung inwards. The highwayman strode directly to the bar, and there stood, facing the open door, while he cried to the trembling bar-keeper,—
“A glass o’ Rye, good and strong!”
It was set before him. Holding the musket in his arm, he took the glass, drank, wiped his mouth with the back of his hand, and then, spinning a silver dollar into the air, said, as it rang upon the floor,—
“I stand treat to-day; let the rest o’ the gentlemen drink at my expense!”
He then walked out, and slowly retreated backwards towards the corner-house, covering his retreat with the levelled pistol, and the flash of his dauntless eye.
* Specifically, the Unicorn, a patriotic tavern. Filed under “small world”: this pub was owned by Joseph Shippen, the uncle of the woman who would marry soon-to-be-turncoat Benedict Arnold.
Yet the “question reverberates: Did Warren McCleskey deserve the chair? For the question to outlive him is a damning commentary on capital punishment in the United States.”
The most reverberating commentary on this case was the 1987 Supreme Court decision McCleskey v. Kemp — a landmark 5-4 ruling that still shapes the way judges handle purported racial discrimination in the criminal justice system.
McCleskey (the decision, not the man) “marked the end of an era in death penalty jurisprudence … reject[ing] the last major challenge to the death penalty in America” from the generation of legal tinkering reaching back to the 1960s.
McCleskey v. Kemp was decided on April 22, 1987, at which time just 70 humans had been executed since the “modern” era of capital punishment began in the 1970s. (Today, the count is well beyond 1,200.)
The victims attributed to those 70 were 83% white (77 of 93),* even though blacks and whites are murder victims in roughly equal numbers — suggesting on its face that white victims are treated as disproportionately “valuable” by prosecutors, juries, and/or judges. This was, prospectively, the case with Warren McCleskey himself, an African American who in the course of an armed robbery had gunned down (or maybe not: see below) a white off-duty policeman.
McCleskey’s appellate team marshaled a statistical study by Iowa Prof. David Baldus indicating that black murderers (to a small extent) and killers of white victims (to a greater extent) were indeed more likely to receive a death sentence in Georgia, even when controlling for dozens of other variables. “According to this model,” wrote Justice Lewis Powell for the majority, “black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.”
Though it accepted evidence of a discriminatory pattern,** the high court nevertheless ruled that McCleskey was not entitled to appellate relief unless he could demonstrate that that it was at work in his specific case.
And with some reason: the import of granting constitutional relief to a claim of “endemic racism in the system” would open a Pandora’s box of appeals from America’s burgeoning carceral state.
McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system … if we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.
This reasoning too backtracked from equal protection concerns that had helped lead a similarly bare 5-4 majority to strike down then-existing capital statutes 15 years before in an appeal originating from the same state — Furman v. Georgia. That old regime had then been replaced with a death penalty system supposedly capable of minimizing arbitrariness. McCleskey served notice that justices wouldn’t be going out of their way to hunt arbitrariness any time soon.
The Court’s remaining liberal lions — it still had such a thing in 1987 — dissented furiously from McCleskey. William Brennan replied to the majority:
Warren McCleskey’s evidence confronts us with the subtle and persistent influence of the past. His message is a disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present.
He also found “fear that recognition of McCleskey’s claim would open the door to widespread challenges … seems to suggest a fear of too much justice.”
Brennan was on the losing side of this judgment in a larger historical sense as well — at least, the brief span of history to unfold since Warren McCleskey sat in the electric chair.
McCleskey author Lewis Powell retired a few weeks after issuing it, and not long thereafter expressed regret for the McCleskey decision.‡ Relentless death penalty foes Brennan and Thurgood Marshall would hang up the spurs within a few years. (The circus Senate hearing to place Clarence Thomas in Thurgood Marshall’s seat was ongoing when Warren McCleskey finally died.)
But the deciding vote in McCleskey was cast by freshman Reagan-appointed justice Antonin Scalia, and he’s still going strong.
Scalia was then the Court’s emerging conservative paladin, though he was so new to the Court that McCleskey’s litigators hoped he might be amenable to their suit as a swing vote. Far from it: after Thurgood Marshall’s death in the early 1990s, his donated papers were found to contain a Scalia memo that rubbished the McCleskey majority’s mere consideration of the Baldus study.
I disagree with the argument that the inferences that can be drawn from the Baldus study are weakened by the fact that each jury and each trial is unique, or by the large number of variables at issue. And I do not share the view, implicit in [Powell’s draft opinion], that an effect of racial factors upon sentencing, if it could be shown by sufficiently strong statistical evidence, would require reversal.
Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial [ones], is real, acknowledged by the [cases] of this court and ineradicable, I cannot honestly say that all I need is more proof.
Shorter Scalia: racism happens, so what?§ (Ultimately, Scalia opted not to file a separate opinion explicitly making this case; he just signed on to the majority opinion.)
Although the McCleskey case is what our day’s principal is best known for, he was also caught up in one of the more everyday — but not the less disreputable — toils of the system: the phony jailhouse informant. Very late in the appeals process, McCleskey’s lawyers were finally able to show that the fellow-prisoner who testified that McCleskey admitted the shooting to him was in fact a police plant operating on a quid pro quo to reduce his own sentence. (It’s amazing how often defendants spontaneously confess to these guys; the Troy Davis case which climaxed last week also featured a jailhouse snitch.) Somehow, prosecutors forgot all along to mention that arrangement even when directly asked.
The Supremes ruled, Kafkaesquely, that this issue was procedurally out of order because McCleskey hadn’t raised it earlier, neatly ignoring that the reason he hadn’t raised it was that prosecutors were actively concealing the fact. That’s the subject of the other SCOTUS case under our man’s name, McCleskey v. Zant.
(At issue was whether McCleskey was himself the triggerman. Since he was part of the robbery gang, he was legally on the hook for capital murder whether or not he personally fired the shot; but, his death sentence turned in reality on the jury’s belief that McCleskey was the individual killer — a detail supplied by the suspect police informant. None of McCleskey’s confederates faced execution.)
The final drama this date was a “chaotic” mess of last-minute legal maneuverings, with McCleskey strapped into the chair at one point, then interrupted from his last statement to be returned to his cell, then finally hauled back to the lethal device after an early-morning telephone poll of Supreme Court justices.
** While the McCleskey court accepted Prof. Baldus’s statistical interpretations even while rejecting their constitutional import, a vigorous pro-death penalty case is made here against the reading that the modern American death penalty is racially discriminatory to any great extent.
† This Latin phrase — fiat justitia ruat caelum — is actually engraved above the sitting justices at the Georgia Supreme Court.
‡ The regret was about more than Warren McCleskey; Powell’s biographer described a complete change of heart in the June 23, 1994 New York Times:
when the retired Justice Powell said he had changed his mind about the McCleskey case, I thought he meant that he would now accept the [Baldus] statistical argument.
“No,” he replied, “I would vote the other way in any capital case … I have come to think that capital punishment should be abolished.” …
Justice Powell’s experience taught him that the death penalty cannot be decently administered. As actually enforced, capital punishment brings the law itself into disrepute.
§ See Dennis Dorin, “Far Right of the Mainstream: Racism, Rights, and Remedies from the Perspective of Justice Antonin Scalia’s McCleskey Memorandum,” Mercer Law Review, 1994.
On this date in 1896, the not-yet-a-state of New Mexico executed four convicted murderers in three separate towns.
Actually, six men had been scheduled to swing, but two got reprieved. New Mexico wasn’t trying to win some kind efficiency contest … it just worked out that way.
The unlucky four were Dionicio Sandoval in Albuquerque, Antonio Gonzales in Roswell, and Perfecto Padilla and Rosario Ring in Tierra Amarilla. Their stories are told in R. Michael Wilson’s Legal Executions in the Western Territories, 1847-1911. All four were convicted of quite ordinary murders.
Sandoval, a sheep herder, shot another sheep herder who accused him of stealing animals from his flock. The sheep didn’t even belong to either one of them: both men were tending herds owned by the Bernalillo County commissioner.
Gonzales had a buddy named Eugenio Aragon who asked him to help kill someone who was threatening to prosecute Aragon for the theft of some lumber. Always eager to help out a buddy, Gonzales assisted in the homicide, only to find himself arrested and then deserted by his so-called friend. (Aragon slit his own throat in jail, leaving Gonzales to face the noose alone.)
Padilla supposedly killed a miner with his own pick for two burros, a hat and a $30 watch. The evidence at his trial was very shaky and many people believe he was an innocent man, perhaps deliberately railroaded for mysterious reasons.
Ring had come to New Mexico from the Colorado territory, which had gotten too hot for him; he was a suspect there in the murder of his wife and baby, and if he did that crime the near brush with the law did not teach him caution in his new environs: one night during a drunken spree he broke a beer bottle over another man’s head, then shot him in the back. The victim died in his mother’s arms. Ring had a friend who was with him that night and started the fight, and they were tried together for the murder, but the friend was acquitted.
Padilla and Ring were not actually hung together side by side as is sometimes done; instead, Padilla went first while Ring waited his turn beside the scaffold. After they cut Padilla’s body down, Ring stepped up.
That’s all, folks.
In 1897, New Mexico would repeat their “four executions in one day” trick by hanging four men, two of them brothers, for a single murder.
One needn’t look to far to find venom and cruelty around the institution of capital punishment.
But the human potential is wonderfully plastic, and without unduly romanticizing the act of strangling on a hemp rope a fellow who has committed homicide, even this extremity carries the potential for catalyzing reconciliation across the threshold of death itself.
This date’s public hanging in Crestview, Florida of Jake Martin and Putnam Ponsell was marked by a remarkable display of contrition and forgiveness that symbolically brought the hanged men back into the community they had wronged even as they were dropped to their deaths.
Martin and Ponsell had hitched a ride with a local and then beaten him to death and rifled the body — that was on July 4, less than 12 weeks before execution.
We will venture to impute to these fellows genuine repentance. At court, Ponsell confessed to the crime without any guarantee from the state. He then testified against Martin, who denied the charge and then “broke down and made a full confession.” (Macon Telegraph, Sep. 8, 1921)
(Martin, granted, broke down only after conviction. Ponsell’s firm and open-hearted embrace of responsibility was openly admired by observers.)
This human sentiment would be reciprocated. Here’s the remarkable newspaper report from execution date (a wire story run in a number of papers, this version from the Augusta Chronicle, Sep. 24, 1921).
Murderers Pay Death Penalty While Crowd Boosts Collection.
Crestvew, Fla., Sept. 23 – A double execution took place here today when Putman[sic] Ponsell and Jake Martin, paid the death penalty for the murder of John Tuggle on July 4th, near this place. The trap was sprung at 19 minutes past 12 and the men were pronounced dead in 18 minutes.
A crowd estimated at 10,000 persons had gathered to witness the hanging which was a public one.
Both Ponsell and Martin admited their guilt just before the execution and a letter from the mother of John Tuggle was read to the men in which she said that she had forgiven them.
A collection was taken up in the rod for the benefit of the wife and two children of Ponsell and he wife and one child of Martin who are destitute and more than a thousand dollars was contributed.
(No doubt this touching reconciliation with the gallows crowd was greatly aided by the circumstance of Martin and Ponsell’s whiteness.)
According to this recent news story, our quiescent bludgeoner Ponsell left behind a letter addressed “To Young Mankind.” The actual contents of this straighten-up-and-fly-right manifesto do not appear to be available online, unfortunately.
Martin and Ponsell didn’t save their lives. But maybe a Dostoyevsky might have hoped that they saved their souls.
On this date in 1675, an Indian (tribe uncertain insofar as I can ascertain) named Little John (or John Littlejohn) was publicly executed on Boston Common for murder.
Though the attributed crime was of a venial variety, the situation was conditioned by a dirty war of ethnic cleansing that had only just that summer erupted — King Philip’s War.
Strained by a series of Native American raids, Little John — lying in jail for murder — apparently became a popular target of Bostonian fury, which was a very bad place to be. Just a few days before this execution, two accredited Indian envoys in the city had been hailed as King Philip’s warriors by two whites, and upon that “recognition” put to death.
about the 10th of September, at nine O’clock at Night, there gathered together about forty Men (some of Note) and came to the House of Captain James Oliver; two or three of them went into the Entry to desire to speak with him, which was to desire him to be their Leader, and they should joyn together and go break open the Prison, and take one Indian out thence and Hang him: Captain Oliver hearing their Request, took his Cane and cudgelled them stoutly, and so for that Time dismist the Company; which had he but in the least countenanced, it might have been accompanied with ill Events in the End. Immediately Captain Oliver went and acquainted Mr. Ting his Neighbor, (a Justice of Peace) and they both went next Morning and acquainted the Governour, who thank’d Captain Oliver for what he had done last Night, but this rested not here; For the Commonalty were so enraged …
an Order was issued out for the Execution of that one (notorious above the rest) Indian, and accordingly he was led by a Rope about his Neck to the Gallows; when he came there, the Executioners (for there were many) flung one End over the Post, and so hoised him up like a Dog, three or four Times, he being yet half alive and half dead; then came an Indian, a Friend of his, and with his Knife made a Hole in his Breast to his Heart, and sucked out his Heart-Blood: Being asked his Reason therefore, his Answer, Umh, Umh nu, Me stronger as I was before, me be so strong as me and he too, he be ver strong Man fore he die.
Thus with the Dog-like Death (good enough) of one poor Heathen, was the Peoples Rage laid in some Measure, but in a short Time it began to work (not without Cause enough).
Since Davis already had one of those, an extraordinary 11th-hour Supreme Court intervention the last time he was up for death, you’d have to guess he’s over quota as it is.
The controversial particulars of this case are too voluminously available for this space to hope to contribute much. As Scott Lemieux observes, the affirmative case for Troy Davis’s innocence is not a slam dunk: but the evidence as it exists, of unreliable eyewitness accounts from a nighttime scene, supplied under police pressure and later largely retracted, could today hardly approach the threshold of guilt beyond reasonable doubt. I don’t know if Troy Davis shot Mark MacPhail, and neither do you. Davis dies for it tonight just the same: all the paperwork is in order.
The “demon of error,” Illinois Gov. George Ryan called it, as he emptied that state’s death row. This unsettling matter demands one play bookmaker with a man’s life. Are you as much as 80% sure? Would that be sure enough? Maybe the uncertainties are unusually large here, but at some level this is the calculus for most criminal adjudications, death or otherwise.
“If a case like this doesn’t result in clemency, which is a discretionary process that calls a halt to an execution based on doubt surrounding the integrity of the verdict, then it suggests that clemency as a traditional fail-safe is not adequate,” criminologist James Acker told the Christian Science Monitor. “The Davis case raises doubts about the discretionary clemency process and ultimately raises doubts about whether the legal system can tolerate this potential error in allowing a person to be executed.”
Clemency as an inadequate, dead-letter procedure (Gov. Ryan aside) is familiar to any observer of the American capital punishment scene; Rick Perry thinks he can disdain it all the way to the presidency.
Perry’s state of Texas has something in common with Georgia: the clemency decisions are not directly in the hands of the governor. It’s an interesting arrangement that helps to scatter responsibility for that weightiest of decisions; every actor in the apparatus is in a position to say, “I alone did not have power of life and death.”
Georgia is one of just five states (not including Texas, where the governor has final say and exercises significant behind-the-scenes power over his advisors) where the clemency process is entirely vested in a committee.* The Georgia Governor is a fellow named Nathan Deal, and his autopen will spill much ink in the hours ahead signing form response letters explaining that he doesn’t have anything to do with pardons or clemencies in his state and thanks for writing.
It wasn’t always this way.
A predecessor of Deal’s in that mansion, one with a promising political career ahead, was bayed out of politics for exercising his prerogative to spare Leo Frank because “I cannot stand the constant companionship of an accusing conscience.” The modern office-seeker typically comes with this accusatory module helpfully un-installed, but one can see how there’d be advantages to removing from the office anything to invite experimentation with self-destructive scruples.
The roots of Georgia’s current system go back to the 1930s, when the notoriously corrupt Eurith Rivers held the governorship and used the solemn power of pardons like merchants in the temple — and every bit as lucratively.
Among those reforms was the progressive concept of rooting out the pardons racket by removing the authority from the governor’s hands. No pardon power, no embarrassing Marc Rich cases. As Gov. Arnall himself explained,
There were those who used to say facetiously, “If you bring the governor a cow, he’ll get you a pardon for your kinfolks, or if you get him a bale of cotton if you do this, or if you get the right lawyer or if you get the right set-up, you can get pardons, pardons, pardons.” So they had gotten a lot of pardons, and the newspapers were after them day in and day out for granting these pardons.
Pardons, pardons, pardons. You can’t get hold of them for a bale of cotton any longer.
These institutions naturally have a life of their own, and what was forward-looking under Georgia’s 1943 constitution seems anything but to Troy Davis’s supporters this day. In the end, the board is still appointed by governors, and it predictably skews towards prosecutors and police — the latter of whom are out for Davis’s blood since Mark MacPhail wore a badge for his day job. It deliberates behind closed doors, and need not record or account for its considerations.
But this is really the lament against the decision itself more so than the process: individual governors are no more bound to broadcast their decision-making process, although some choose to do so. The rules of the game matter, but whatever they might be, it is humans who apply them — human judgment that makes the choices, whether as the first officers on the scene, as jurors, or as a panel of inscrutable bureaucrats with power over life and death.
* Here’s an example of a similar committee in Nebraska granting a pardon, in the relatively less-fraught circumstance of a man 100 years dead.