In US Supreme Court decisions based on its “evolving standards of decency” analysis, such as the 2002 and 2005 rulings prohibiting the execution of offenders with “mental retardation” or who were under 18 years old at the time of the crime, the Court referred to international practice in support of the prohibition. Judge Moore made no reference to the evolving trend towards global abolition of the death penalty, with 139 countries abolitionist in law or practice today, a clear majority. These countries reject the judicial killing of anyone, let alone someone whose guilt is in doubt. One of the reasons countries abandon the death penalty is their recognition that “despite the best efforts of society”, the criminal justice system makes mistakes.
While international law is abolitionist in outlook, it recognizes that some countries still retain the death penalty. Pending abolition, the international community has agreed that certain safeguards must be met in capital cases. One of these safeguards concerns the burden of proof on the death penalty state:
“Capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts”.
Clearly, given the mistakes that have been shown to occur before and at trial, this standard should apply beyond that stage in a case. Indeed, in reporting to the United Nations under this safeguard, governments have pointed to the post-conviction reversal of death sentences in cases where there was doubt over the condemned prisoner’s guilt after the trial.
The burden of proof chosen by Judge Moore is much less protective of a condemned prisoner whose guilt is in doubt than human rights safeguards require. If the state’s case is not “ironclad”, to borrow Judge Moore’s description, it means there is room for an alternative explanation of the facts. The Board of Pardons and Paroles should commute Troy Davis’s death sentence. After all, it said in this case in 2007 that it would not allow an execution to go ahead “unless and until its members are convinced that there is no doubt as to the guilt of the accused”. The Board does not have to apply the “extraordinarily high” burden adopted by Judge Moore. And the power of executive clemency must assume its role as a genuine “failsafe”.
Doubt still exists. This should be enough for even a death penalty supporter to oppose the irrevocable step of execution.
For further information, see:
USA: ‘Unconscionable and unconstitutional’: Troy Davis facing fourth execution date in two years, May 2009, http://www.amnesty.org/en/library/info/AMR51/069/2009/en
USA: Room for doubt, no room for execution, 13 July 2010, http://www.amnesty.org/en/library/info/AMR51/060/2010/en
AI Index: AMR 51/077/2010 Amnesty International 27 August 2010