TROY DAVIS has been on Georgia’s death row for 15 years fighting what is now an international campaign to save his life. He has come close to execution several times, but on Monday the US Supreme Court threw him a lifeline. It ordered a federal court to hold an evidentiary hearing on exculpatory evidence obtained since his trial, notably the retraction by seven prosecution witnesses of their evidence against him. Several have also implicated another key witness in the 1989 killing of off-duty policeman Mark MacPhail.
The ruling by the court is an important blow to the 1996 Antiterrorism and Effective Death Penalty Act, intended to speed up executions by restricting legal recourses available to the US’s 3,297 death-row inmates.
“The substantial risk of putting an innocent man to death,” Justice John Paul Stevens wrote for the majority, “clearly provides an adequate justification for holding an evidentiary hearing.” Justice Antonin Scalia, dissenting, said the hearing would be “a fool’s errand” because Davis’s factual claims were “a sure loser. . .This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent”. Perhaps, but in a 1993 decision then Chief Justice William Rehnquist wrote that “we may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional . . .”.
Today 35 states and the federal government still retain the death penalty, although its use has declined – in the last two years the number of death sentences has been lower than any time since reinstatement in 1976.
But the courts have been sending mixed messages, as two other cases on Monday illustrate. Newly-seated Justice Sonia Sotomayor cast her first Supreme Court vote unsuccessfully trying to stop an Ohio execution. And a Texas judge faced charges after she refused to hear a last-minute application from lawyers out of hours. Their client was executed the next morning.
Because of the solid Supreme Court majority for the actual death penalty, in recent years the battle has tended to be waged incrementally on side issues such as the “cruelty” of electrocution, the incompetence of lawyers, the execution of minors and the mentally disabled, and in state legislatures even on the prohibitive cost of capital trials. But on Monday the Supreme Court struck another welcome blow against this barbaric practice.