ON SEPTEMBER 21, we witnessed a murder. Let’s get our facts straight so that nobody will be able to manipulate our testimony in the months and years ahead.
When did the murder take place?
The injection of poison into Troy’s veins began at 10:53 p.m., and was over in 15 minutes. But the execution started several hours earlier, when Troy was strapped down to the death gurney for his scheduled 7 p.m. execution.
Prison officials kept him tied down there like an animal for the entire evening as they awaited the go-ahead from the United States Supreme Court, which had imperiously declared at the scheduled minute of his execution they would now begin deliberating on whether or not to grant a stay of execution.
In fact, the murder began 20 years before that, when Troy Davis was sent to death row—a place that Tyrone X. Gilliam, murdered by the state of Maryland in 1998 , once said was like having a gun pointed at you every day, where some days you want them to just pull the trigger and others you pray they don’t.
Who killed Troy Davis? There is a long list.
- Spencer Lawton, the prosecutor who won the death sentence by claiming his witnesses were credible as long as they stuck to the story that Troy was the killer—and fought to keep it in place by saying that those same people were liars when they recanted their testimony.
- Carlo Musso, the doctor who made a career out of poisoning people to death.
- Barack Obama, the most powerful person on the planet, who hid behind a press release the day of the execution, but reemerged a few days later as a tough guy, telling African American political leaders to “stop crying.”
Each of these people and dozens more would be punished in a just world for the part they played in the murder of Troy Davis. Yet each can also reasonably claim not to have been the decisive actor. It is a criminal conspiracy without a ringleader.
That’s because the fingerprints at this crime scene belong not to individuals but to institutions: racism and the American state. Get a good look at the killers. It’s not the first time they’ve acted in concert.
The American state we see in this case has nothing to do with the “big government” denounced by right-wing demagogues. Troy Davis wasn’t killed by Social Security or the Environmental Protection Agency. He was killed by the repressive apparatus at the heart of every society where some people have and others have not.
The audience at the Republican presidential debate chillingly applauded Texas Governor Rick Perry’s use of the death penalty because they want this traditional role of the state to be as big as possible. What they find tyrannical are those additional services taken on by governments around the world in response to popular demand: caring for the elderly and the sick, monitoring discrimination and the food supply, etc.
Troy Davis was killed by that arm of every state, democracy or dictatorship, whose authority rests not on its wisdom or the consent of the governed, but on the state’s own authority. As Davis himself put it earlier this year, “Georgia feels it’s better to kill me than admit I’m innocent.”
In an individual, the stubborn refusal to admit error would be a major character flaw. For the American state, it is a bedrock principle, dressed up in pleasant-sounding notions like “finality” or “respect for the original verdict.”
The Antiterrorism and Effective Death Penalty Act of 1996 immunized death sentences from the annoying challenges of new evidence found more than six months after conviction—such as the witness recantations that should have but did not free Troy Davis.
Three years earlier, the Supreme Court even declared that “actual innocence” was not “relevant” in the appeal of Leonel Herrera, whose final words before Texas killed him indicated his strong disagreement:
I am innocent, innocent, innocent. I am an innocent man, and something very wrong is taking place tonight.
Though the language of US law is dry and its pace is slow, the moral equation of sacrificing human lives at the altar of the state’s authority is the same as the one used by states such as Syria and Bahrain currently gunning down protesters. It’s the cowardly brutality endemic to illegitimate power.
Across the Middle East, the authority of dictatorships is slipping, requiring the use of naked force. In normal times, it doesn’t come to that. We accept subservience to the state, an attitude reinforced daily by our interactions with police, whose societal status resembles that of Prussian officials described by Karl Marx many years ago:
[The official] is a superior, sanctified being. His character as an official is interwoven into him like consecration in a Catholic priest. Offending such a priest—even one who is not exercising his post, who is away from home, who has retired into private life—remains a religious profanation, a desecration.
Savannah police officer Mark MacPhail was a member of the modern American priesthood when he was killed in 1989. Although MacPhail was “not exercising his post” when he was killed, but moonlighting as a private security guard, his death was taken, as always, as an attack on the entire police force.
What really put MacPhail’s fellow officers in a frenzy, however, was that he was evidently killed by an African American. The American state, which spent sleepless nights in its formative years worrying about slave revolts, has always reserved a special cowardly brutality towards its black-skinned subjects.
Savannah police and prosecutors struck back against this African American threat to their authority by quickly catching and convicting “one of them.” They didn’t ask witnesses who killed MacPhail; they told them. Reasserting the strength of Savannah law and order was more important than finding the real killer, an order of priorities that has been upheld by every higher court in the land.
A few years before MacPhail’s killing, another Black man sat on Georgia’s death row for the murder of a white cop, despite his claims of innocence. Warren McCleskey challenged his conviction with a study by Professor David Baldus which showed that a Black defendant in Georgia convicted of killing a white victim was far more likely to receive the death penalty than a white defendant convicted of killing a Black victim.
In McCleskey v. Kemp, the Supreme Court acknowledged that the Baldus study demonstrated a “discrepancy that appears to correlate with race.” But the most exalted jurists in the country then shrugged that there was nothing they could do because “apparent disparities in sentencing are an inevitable part of our criminal justice system”—which is legalese for “shit happens when you’re Black.”
To add insult to injury, the justices went on to argue that if McCleskey’s claims were accepted, it could lead to studies looking for discrepancies based on “any arbitrary variable, such as the defendant’s facial characteristics.”
As if this country has a history of slavery and segregation based on facial characteristics. As if Warren McCleskey and Troy Davis are dead because of their facial characteristics.
The Supreme Court did make one honest argument in their decision in McCleskey v. Kemp:
McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system...Thus, if we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.
In other words, the same racial bias that skews the death penalty runs rampant through “our entire criminal justice system” and therefore must be ignored.
This statement is an un-coerced confession to the charge of institutional racism—a guilty plea in advance for the murders of Warren McCleskey, Leonel Herrera, Tyrone X. Gilliam, Troy Davis, and hundreds of others.
Beyond that, it’s a recognition that the crimes of the death penalty are inseparable from those of the entire aptly named “criminal justice system,” from mandatory minimum sentences for nonviolent crimes to the systematic use of solitary confinement in prisons, to the beatings and rape carried out by police that should be seen as war crimes rather than a “war on crime.”
The prison system is built on power, not justice. The New York Times recently reported that the rate of felony defendants who plead guilty before trial has shot up three-fold to an astonishing 97 percent. The reason is not that cops are suddenly batting .970, but that “after decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas...by using the threat of more serious charges with mandatory sentences or other harsher penalties.”
The death penalty is the state’s ultimate harsh penalty, immensely useful in forcing pleas, creating snitches, loudly proclaiming the authority of the American state, and softly but menacingly proclaiming the authority of racism.
Millions of people across the country and around the world came to see the injustice of Troy’s case. Hours before his murder, Troy urged them to recognize the bigger picture:
The struggle for justice doesn’t end with me. This struggle is for all the Troy Davises who came before me and all the ones who will come after me.
Today, there are police and prosecutors in Georgia just waiting for their next chance in a room alone with a Black defendant: “Did you see what we did to that Troy Davis guy? He said he was innocent, too.”
That’s what they want the legacy of Troy Davis to be. But thanks to the courage and dignity of Troy and his family, there are now hundreds of thousands of people who are going to make sure that doesn’t happen.