The Good Executive

by digby

Those of you who having been reading this blog for a while know that I am a death penalty opponent. In fact, the idea of the state putting people to death actually makes me a little bit sick. I think killing is only justified in self-defense, even if self-defense is construed in rather broad and vague ways at times, and I can't see how anyone can construe self-defense as taking an incarcerated individual into a little room and killing him in a highly ritualized fashion. But that's just me.

But even if I were to grant that the death penalty can sometimes be just, it simply cannot ever be just to execute innocent people. And that is exactly what the state seems to be about to do. From LGM:

The NY Times has the story today of Troy A. Davis, a 38-year-old man who has been on Georgia's death row for 17 years. Mr. Davis was convicted of shooting a police officer who had come to break up a scuffle outside an Atlanta nightclub. There was no physical evidence tying him to the shooting. He admits to being at the scene but claims that he turned and ran as soon as someone threatened to shoot. At his trial, prosecutors, according to the Times, "relied heavily on the testimony of nine eyewitnesses who took the stand against Mr. Davis." But in the years since his trial, seven of the nine witnesses have recanted or changed their stories, admitting that they were (again, per the Times) "harassed and pressed by investigators to lie under oath."

Mr. Davis has exhausted his appeals. The Supreme Court last week refused to hear his case. And because of a recent (1996) law "intended to streamline the legal process in death penalty cases, courts have ruled it is too late in the appeals process to introduce new evidence and, so far, have refused to hear it." Why streamlining the path to death is a good idea totally escapes me. But beyond that, the existence of a law barring evidence that could exonerate a man less than one week from his execution seems both barbaric and blindingly stupid. Sure, in the absence of such a law, some people who are guilty of the crimes for which they were convicted would abuse the system and seek to submit unimportant evidence up to the last minute. But to me this seems a small price in efficiency to pay in order to ensure we don't put innocent people to death. (As you may have read before, I don't believe in capital punishment to begin with. But within the framework we now have, this law seems particularly cruel.)

I've never understood this "efficiency" argument. I know that everyone regrets that the justice system is clogged with too much crime, but nonetheless, it is the purpose of the justice system to dispense, well, justice. Efficiency should be way down on the priority list when it comes to the death penalty. We can afford to dot all the i's and cross all the t's.

The irony in all this is, as Scott Lemieux points out in a later post at LGM, that the Supremes believe that an executive would never let an innocent person be executed, so there's nothing to worry about:

I have a follow-up post on the Troy Davis case at TAPPED. Among other things, I discuss the famous Scalia concurrence in which he asserts that there is no constitutional right to bring evidence -- no matter how compelling -- of actual innocence after one had been validly convicted of a capital crime. But why worry?

I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon.

Right. Unless his name is Scooter, it's not bloody likely, whether it's the Governor of Georgia or the president of the US --- mostly because rightwingers have aneurysms when anyone suggests that anyone on death row could possibly be innocent, no matter what the evidence says.

But again, this clever Scalia quote illustrates the convenient conservative theory that justice and the rule of law should be reliant on the good faith and good will of the executive. I suspect this comes from the idea that is currently in vogue among the rich and successful that being rich and successful equals being "good." If an executive fails to free a man on death row, that means, by definition, that man cannot be innocent. The "good" executive would never allow an innocent man to be executed.

But be sure to prepare yourself for the whiplash when the Democrats attain executive power and the Republicans rediscover their antipathy for monarchical executives. (Democrats can never be "good.") But that is not to say they will shift their fervent belief in the death penalty. They will just shift seamlessly into their familiar rhetoric that criminals are running rampant and any Democrat who pardons or commutes a convicted man's sentence is a soft-on-crime dirty gay hippie. You do not win with these people.

Update: more on this from LGF again:

Yoo Tortures The Law Again

He's back, with another crackpot theory justifying arbitrary executive power in defiance of the plain language of several constitutional provisions as well as the structure and underlying theoretical basis of the Constitution.

As Stephen Holmes points out (and expands on in his new book), it's not just that Yoo believes as a normative matter -- contrary to the fundamental principles of liberal democracy-- that power is most effectively deployed when it's secret and unchecked, but his farcical attempts to locate the monarchical executive in the original meaning of a Constitution that (although it leaves the precise contours of executive power vague) plainly cannot support such a reading:

Yoo will undoubtedly keep the fire going for the Republicans. You never know when the zombies are going to emerge and it's always nice to have the good executive legal theory neatly delineated.