After Troy Davis: From a Reform Moment to an Innocence Movement and Beyond

by Dax-Devlon Ross

This past spring I published a novel that tells the story of a young man who was executed for a crime I don’t believe he committed. It wasn’t easy for me to come to this conclusion. Only after several years of research and reflection did I gather the courage to articulate my faith in Toronto Patterson’s innocence. My aim was to tell a story that challenged readers to look at the facts surrounding not just the case but the culture and customs that sanctioned this young man’s death. He was executed nearly a decade ago. Even though he was a minor when he was arrested and the prosecution’s case rested on racialized character slander, coerced testimony, reckless leaps of logic, and the court-sanctioned suppression of evidence, he never became a cause celebre like Mumia Abu-Jamal or Troy Davis. Letters were were written to the clemency board on his behalf. Public radio featured his story. Vigils were held. But since mainstream America really had no idea who he was let alone the range and depth of the injustice being done to him, no public momentum built to save his life.

Timing is crucial. When Toronto was convicted in 1995, 80% of Americans were in favor of the death penalty—the highest in Gallup’s polling history. The legal precedent that now legitimizes the innocence movement underpinning the widespread support for Troy Davis was only beginning to take shape. In 1987, a mere two years before Davis’ conviction, the Supreme Court upheld Georgia’s capital punishment statute despite the alarming amount of evidence of its “racially disproportionate impact” because Warren McCleskey’s lawyers failed to prove the statute’s “racially discriminatory purpose.” Up to this point, legal scholars and death penalty abolitionists had put all of their eggs in the race-based basket. They figured if they could prove the ultimate punishment was being disproportionately used on African Americans, which continues to be the case, then they could get another moratorium, which would buy more time to figure out how to abolish the practice entirely. After McCleskey they needed to find a new direction. Throughout the ’90s, the “Free Mumia” movement kept the embers of the anti-death penalty campaign lit and should be in part credited with the 14% drop in death penalty approval ratings by 2000. But the movement to free Mumia was (and continues to be) a unique flashpoint/footnote directly linked to the civil rights era and the overt racial discrimination that characterized the relationship between the Philadelphia police and the city’s radical black freedom struggle.

What really began to change the course of the death penalty abolition movement was the birth of the innocence movement. A direct descendent of the DNA Revolution and a distant relative of the victims’ rights movement of the ’70 and ’80s, the innocence movement gave us hundreds of faces and cases. The faces of the now 138 wrongfully convicted death row exonerees cut across partisan battle lines and challenged anyone with a conscience to look into their soul and ask themselves, “What if that was me or someone I loved?” Governors from New Mexico, New Jersey, and Illinois repealed their death penalty statutes. Other states like Texas introduced a life without parole option for juries. Supreme Court Justices began to publicly question their own capital punishment decisions while others openly expressed doubt  about our society’s ability to deliver the ultimate punishment in a manner consistent with the Constitution. After hitting a peak of 98 executions in 1999, the number dropped as low as 37 in 2008.

Meanwhile, the more than 270 post-conviction exoneration cases afforded legal experts and scholars the tools to explore and ultimately expose the criminal justice system. Confessions, eye-witness identification and testimony, forensic science, prosecutorial conduct, “snitch” testimony—they all came under heavy fire once the data on the exonerated was analyzed and reported. At the same time, the studies on race and the death penalty became more comprehensive and sophisticated. Instead of looking simply at who was on death row (because clearly that’s not enough to move the needle), scholars began looking at the race of the victims. One noteworthy study revealed a clear pattern indicating that the race of the victim plays a crucial role in whether the death penalty is sought, obtained and carried out. And yet in spite of all of these breakthroughs and revelations, states continue to sanction murder and call it justice. Why?

A few days ago I read Pulitzer Prize winning MLK biographer Taylor Branch’s profile of college sports in The Atlantic. A ground-breaking piece of journalism that should signal the death knell of the whole shoddy college sports charade, Branch eloquently uproots the crux of the paternalistic student-athlete fixation: sentimentality. In Branch’s words, the NCAA’s opposition to paying players whose labor makes schools billions “echoes masters who once claimed that heavenly salvation would outweigh earthly injustice to slaves.” The same can be said about the death penalty. The overwhelming majority of leading criminologists agree that the death penalty is not a deterrent. Police chiefs rank it last among ways to reduce crime and the least effective use of taxpayer money, a fact corroborated by a recent study of cash-strapped California’s prohibitively costly death penalty system. That popular support for its use persists in the United States despite case after case and study after study challenging its legitimacy as a fair, just, cost-effective punishment suggests an epidemic of denial. In the past two decades science and scholarship have stripped death penalty proponents of their time-honored justifications. All that remains is the sanctimonious “states’ rights” argument, which, taking into account the racist legacy of the states that routinely invoke the Tenth Amendment to uphold capital punishment, is simply shorthand for a sentimental attachment to the system irrespective of it effectiveness, fairness or relationship to justice.

We’ve all been conditioned to invest an enormous amount of psychological and emotional capital in the criminal justice system. Interrogation rooms, jail cells, courtrooms and prisons have become our repositories of rage, fear and angst. The death chamber is cathartic. Like the steel bank vault, it invites us to experience a sense of maximum security and certainty in an uncomfortably insecure, uncertain world. Whenever the system’s shortcomings and wrongdoings are discovered and put on public display, it rallies its considerable resources and influence to perform unconscionable feats of damage control. It should also come as no surprise that as the DNA Revolution has sent seismic ripples of doubt through society, law enforcement entertainment has fired back with as a rash of reality-based television shows share a common theme—the reinforcement of the system’s supremacy, integrity and necessity.

It is against this backdrop that Troy Davis and the expanding innocence movement he represents have emerged as a kind of litmus test. It’s one thing to clear someone through DNA; the Innocence Project has proven itself adept at handling these cases and states have shown a willingness to acknowledge (legal) innocence when left with no alternative. Davis’s innocence rests largely on witnesses identification and testimony, a far murkier issue than indisputable scientific proof, which is typically limited to those cases in which DNA was exchanged, recovered and maintained. But faulty identification and testimony is an important and expanding area of justice reform. Not only is cognitive science challenging us to rethink the accuracy of memory and perception, the legal research is yielding inescapable evidence of witness identification and testimony’s persuasive power in the courts. According to a study by the Innocence Project, more than 75% of the convictions it has helped to overturn involved inaccurate or faulty eyewitness identification and testimony. A study conducted by the Northwestern School of Law found that in 86 wrongful Capital convictions, eyewitness evidence was the ONLY evidence used against the defendant in 38% of the cases. The same study found that nearly 50% of the wrongful convictions in Capital cases involved “incentivized” witness testimony and that of the 38 wrongful convictions involving snitch testimony, 45% of those convictions were overturned due to recantation by the snitch. If Davis is vindicated, his case could set in motion a chain reaction that galvanizes the innocence movement and puts even more pressure on the justice system to get serious about reform.

Or it could just be another moment.

My hope is that the energy and enthusiasm for Troy Davis carries forward. Between the articles, petitions, e-mails, Facebook postings and tweets this week alone, it’s evident that we’ve built a powerful network of people who care. My concern is that if the parole board and Governor Deal deny his clemency plea, all of us who’ve put efforts into his cause could lose confidence. Our challenge is to translate the care into a non-stop campaign. And that campaign can’t start and finish with online petitions. It has to also mean getting on juries, funding organizations, blogging about the issues, knowing the issues, challenging others on the issues, and, of course, getting out on the street. The “I am Troy Davis” and “Too Much Doubt”taglines have become more than just rallying cries for an individual. In the age of branding they can, should and must be attached to any number of potentially innocent faces sitting in prison cells across the country. Whether Davis lives past his September 21st execution date or not, more than 3,200 prisoners will still reside on death rows across the country come next Thursday morning. Since 1976 for every 10 people executed, one death row inmate has been exonerated. One for every ten. An eye-popping 72% of those exonerations have come since the dawn of the DNA Revolution in 1989. How many more Troy Davis’s are silently awaiting their end? Their stories need to be told, their cases heard and their lives preserved. I will continue to do my part. I hope you will join the movement.