When considering what a “reasonable juror” would do in this case, the question also arises as to whether the concept of a “reasonable juror” in 2010 is the same as that in 1991, the year that Troy Davis was tried. And a question that Judge Moore did not (and was not asked to) address is, even if a “death qualified” jury were to vote to convict Troy Davis again today, would it vote for a death sentence?
In line with a softening in public and political support for the death penalty in the USA over this period, capital jurors are today displaying a much greater reluctance to pass death sentences than they were two decades ago. In 1991, death sentencing rates in the USA were approaching their zenith. Some 268 people were sentenced to death in the country that year. Death sentencing would peak in the next few years – reaching an apex of 317 new death sentences in 1996 – before beginning to drop off. In 2008 and 2009, for example, there were 111 and 106 new death sentences respectively – each far fewer than half of the 1991 total. This decline has been reflected in Georgia also. From 2000 to 2008, Georgia passed an average of 2.3 death sentences per year, while from 1991 to 1999, the average was 8.2, and from 1982 to 1990, the average was just over 10. Across the country, it seems that a greater awareness of the possibility of irrevocable mistakes, coupled with increased confidence that public safety can be ensured by life imprisonment without parole rather than execution, has contributed to this change.
At least some of the jurors from Troy Davis’s 1991 trial have indicated that they would no longer vote for a death sentence. For example, one of the jurors said in 2007 that the post-conviction evidence left him with “some lingering doubt about Mr Davis’ guilt. In light of this doubt, I would not have sentenced him to death… I recommend that his death sentence be commuted to life.”This takes us back to the question of clemency, a power invested in the executive that the Chief Justice of the US Supreme Court described in 1993 as the “fail safe” against mistakes made in the “fallible” criminal justice system. In his ruling in the Troy Davis case 17 years later, Judge Moore noted that while it might have once been believed that “any serious showing of innocence would result in state relief by clemency or state judicial process”, that is, “the state would always admit its mistake and rectify it”, events since 1993 “shatter the notion of a perfect ‘fail safe’ system for truly persuasive proof of innocence”.
Yet at the same time, Judge Moore laid responsibility for determining whether society can and should live with the combination of an absence of judicial certainty on the one hand and an irrevocable punishment on the other, at the feet of the political branches of government and the electorate, not the judiciary:
“If state prosecutors in Georgia are comfortable seeking the death penalty in cases of heinous crimes where their proof creates less than an absolute certainty of guilt, and the people of Georgia, through their validly enacted laws allow such a system knowing that it may occasionally result in the erroneous imposition of punishment, [US Supreme Court precedent] suggests that the Constitution will not interfere.”
The Constitution, Judge Moore had concluded before turning to the question of whether Troy Davis had met the “extraordinarily high” burden to prove his innocence, prohibits the execution of an innocent person. Applying the US Supreme Court’s “evolving standard of decency” standard, the judge concluded that “objective indicia of societal standards indicate a consensus that the execution of innocent convicts should be prohibited, whether that innocence is proved before or after trial.”