How we can save the next Troy Davis: Claims of innocence must be heard in death row cases

The following opinion by Katie Chamblee and Katie Mesner-Hage was published by the New York Daily News on September 24, 2011.

On Wednesday night, Georgia executed Troy Davis, despite much doubt about his guilt. Though many find it difficult to understand how our legal system could have failed to vindicate his claims of innocence, Davis did not simply slip through the cracks. Instead, his case is symptomatic of a profound flaw in our system: Our laws intentionally foreclose nearly all means of reversing a death sentence on claims of innocence, even when the testimony that led to the original conviction is recanted.

That's largely because our laws value finality over accuracy, even when a life is at stake. Retrying cases is hard, the Supreme Court has said, and overturning convictions is disruptive. The court has made the threshold for demonstrating actual innocence, in its own words, "extraordinarily high."

In fact, the court is not even in agreement that claims of innocence should be heard at all, so long as the trial that produced the wrongful conviction was technically fair. As Justice Antonin Scalia wrote in his 2009 dissent when the Supreme Court held that a federal court should hear Davis' claims of innocence, the high court "has never held that the Constitution forbids the execution of a convicted defendant" who is later able to convince a court that he is actually innocent.

Even if a defendant succeeds in getting into court, proving innocence requires far more than what is required for a "not guilty" verdict at trial. The Savannah judge who eventually heard the new evidence in Davis' case said that Davis would have to show "by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." So while a prosecutor must prove the defendant's guilt beyond a reasonable doubt to all 12 jurors to get a conviction at trial, to overturn his death sentence, Davis would have to show that no juror would have convicted him. In other words, evidence insufficient for a conviction can uphold a death sentence.

Davis' case has received an incredible amount of national attention, and the growing recognition that innocent people are often convicted in the first place is encouraging. Texas, for one, has recently implemented legislation that provides greater access to post-conviction DNA testing.

This is a step in the right direction, but it does nothing for defendants convicted on the basis of coerced confessions or mistaken (if not outright false) testimony. There must be a way for defendants such as these with legitimate claims of innocence to have their claims heard.

But even if a better vehicle for hearing innocence claims can be devised, the death penalty would remain a deeply flawed punishment. In a landmark 1983 study, legal scholar David Baldus found that the best predictor of whether a defendant will receive the death penalty is not the severity of the crime, but the victim's race. Baldus discovered that defendants accused of killing white victims, as Davis was, were about four times more likely to get the death penalty than defendants accused of killing black victims.

The Supreme Court has long tried in vain to correct the arbitrariness and racism of capital punishment by, as Justice Harry Blackmun put it, "tinker[ing] with the machinery of death." But the only way to put an end to the death penalty's brutal flaws is to end the death penalty itself.

Ending the death penalty for good will go far to restore the integrity of our justice system and to ensure that it serves to protect, and not victimize, the most vulnerable among us.

Chamblee and Mesner-Hage are students at Yale Law School and members of its Capital Assistance Project.