By David Matthew and Waris Husain
The execution of Troy Davis this week was met with national uproar and protests in Washington D.C. Mr. Davis was to be executed for a crime he allegedly committed, even though most of the witnesses in the case recanted their testimony, indicating his potential innocence. The Supreme Court of the nation refused to stay the execution based on legal formalities that were not satisfied in this case. Instead of humanizing Troy Davis as a man about to lose his life to an unjust system, our courts employ a rigidly technical jurisprudence.
In America, the legal community has focused so greatly on upholding legal technicalities that judges and lawyers disregard the human impact of their decisions. An undue reliance on legal formalism has pervaded in the Supreme Court, resulting in a mechanical application of the law that favors the law’s logical form over its ability to promote social well-being to the people it serves. A more pragmatic and humanistic approach to jurisprudence is needed to interpret law in its proper context, not as merely an end in itself but as a means to fulfill human needs and values.
The demand by the public for the judiciary to act even in the absence of precedent stems from two ideas: (1) the public’s discomfort with allowing a potentially biased system to take the lives of citizens, and (2) the lack of respect for human dignity implicit in the death penalty. Either way, such contentions can only be addressed by a court that recognizes and upholds the principles of wisdom as much as it applies the rigid technicality of legal formalities, so as to value the human impact of the decisions made by the Courts.
I. THE CAPITAL PUNISHMENT
The continual use of the death penalty in the U.S. seems draconian when compared to the rest of the developed world who has banned the practice. But fundamentally, the continuation of the death penalty relates to the technical nature of legal analysis amongst lawyers and judges in the U.S. With a technical perspective, the courts have worked to uphold their own decisions, and since executions were commonly upheld throughout America’s history, the status quo has remained etched in stone. Indeed, a vital function of the Court is to adhere to precedent – and Justice after Justice has largely done so in mechanical fashion.
The Supreme Court’s legitimization of capital punishment has created a particular culture surrounding the state-sponsored murder of citizens. Not only does a technical upholding of a barbaric practice allow for its continued use, it also has inspired a blood-lust amongst the people. This was especially apparent when a crowd at a Republican Primary Debate cheered Rick Perry for announcing that he has presided over more executions as governor of Texas than any other American governor in the past decade. It is ironic that the same crowd of people who distrust the government from competently delivering health care or education, can trust that same State entity with determining the fate of someone’s life.
III. INJUSTICE IN ADMINSTRATION
Some were angered by the Troy Davis case because there were suspicions of racial discrimination, as Mr. Davis was African American. This classification alone exposed Mr. Davis to the death penalty more likely than a white counterpart, as 89% of defendants subject to capital punishment in the U.S. are either African American or Mexican-American. Several advocates have presented cases before the Supreme Court that used social science data to explain that capital punishment was being used discriminatorily against the nation’s minorities. In such cases, the court relied on its legal formalism to reject social science data, and maintained the practice of capital punishment despite the existence of information suggesting that innocent people were being executed by the State.
However, legal formalists would argue that despite discrimination that might exist in society, we can trust the courts enough to adequately determine a person’s guilt and subject them to death as a penalty. The South African Supreme Court rejected this very idea, stating that no court in the world should be able to put a person to death when inequality or discrimination existed in that society. They stated that,
“the outcome (of a capital punishment case) may be dependent upon factors such
as the way the case is investigated by the police, the way the case is presented by
the prosecutor, how effectively the accused is defended, the personality and
particular attitude to capital punishment of the trial judge and, if the matter goes
on appeal, the particular judges who are selected to hear the case. Race and
poverty are also alleged to be factors. – S v. Makwanyane
Even though Europeans had slaughtered thousands of innocent black citizens using the death penalty in South Africa, the new Supreme Court chose not to exact revenge on their colonial masters. The Constitutional Court correctly raised concern over the very real possibility that circumstantial factors of societal inequality may lead to incorrect judicial rulings.Understanding the inherent fallibility and imperfections of the legal system, South Africa refused to accept capital punishment as being an appropriate solution that imperfect courts of law are capable of responsibly administering. The U.S. shares a similar history of discriminatory behavior towards certain minority groups, yet formalists argue that the U.S. system can somehow fairly administer the death penalty. Unlike South Africa, where the judges had the wisdom to understand the potential human cost of allowing the death penalty to continue in a discriminatory society, American judges have dehumanized our judiciary with their undying allegiance to formalism.
III. HUMAN DIGNITY AND THE DEATH PENALTY
There is another group of people who wish to repeal the death penalty based on the idea that executions violate the modern concept of “human dignity,” even if administered perfectly by the courts. This principle is acknowledged in several constitutions around the world and is a basic right in most international human rights treaties. In Germany, Article II of the Basic Law states that “every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable.” This has been interpreted to prohibit the use of capital punishment against any citizen.
Germany’s constitution and courts draw on their scarred history of the Holocaust and World War 2 as inspiration for the abolishment of the death penalty. During the reign of Nazi dictatorship an estimated 40,000 death sentences were handed down. In response to this atrocious abuse of power, in 1949 German’s Parliamentary Council emphatically articulated its commitment to abolishing the death penalty:
“As the extent of Nazi atrocities and abuse of the death penalty became clear,
everyone was horrified, and the founders of the Federal Republic of Germany
decided the State could never again be allowed the power to kill.”
This acknowledgement of past atrocity empowered a modern Germany to learn from its grave mistakes and seek to never repeat them. They understood the real human impact of the loss of life, which is completely disregarded in the United States with its rigid maintenance of the death penalty. If one looks through the history books of the U.S., the nation was built on the genocide of a native population as well as the enslavement and abuse of African Americans. Yet, unlike the Germans, the American legal community had no such self-realization allowing the society to progress forward with the changing times. This is partially the reason why the execution of Troy Davis was so disheartening to so many across the world. Once again, it reminded us of America’s arrogant refusal to correct past wrongs, and once again our poisoned judiciary shrunk at the opportunity to stand up to its moral obligations.
Predictably, few in the Supreme Court have acknowledged the importance of human dignity in their legal analysis. Justice Brennan explained how the death penalty relates to the newly developing ideals of “human dignity”, when he stated “the country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death…the struggle about this punishment has been one between ancient and deeply rooted beliefs in retribution…. on the one hand, and, on the other, beliefs in the personal value and dignity of the common man.”
IV. WISDOM IN THE COURT
Thus, we can now come back to the situation of Troy Davis, whose appeal to the Supreme Court was denied even though many of the witnesses in his case recanted their story. The reasoning behind the court’s decision was lauded by some legal formalists, as the court upheld the prior decisions allowing for capital punishment in the face of abject discrimination. While legal formalists rely on case law, the ultimate law of any nation is its constitution and the basic feature of all constitutions, we argue, is that they protect human dignity and equality.
In Furman v. Georgia, Justice Brennan argued that all capital punishment should be banned in the U.S. because the society no longer accepts it as an acceptable form of punishment (which is true today as 60% of Americans want to ban the death penalty). However, he explained through the Constitution, that the Eighth Amendment banned the use of cruel and unusual punishment, and that the definition of “cruel and unusual” would change over time. Justice Brennan stated that Constitutional protections “must draw [their] meaning from the evolving standards of decency that mark the progress of a maturing society.” Therefore, the judges are tasked with the job of monitoring the “evolving standards of decency,” which cannot be done purely through a scientific legal rigidity and upholding past decisions.
This requires that a judge display one characteristic: wisdom. A judge embodies wisdom when he/she recognizes the human impact of the decisions they make and understands the spirit of the laws. It is an obvious contention that laws and constitutions, at least nominally, were created to maximize human happiness and ensure equality, but a focus on legally formalistic arguments lends to decisions that result in injustice and misery.
Thus, a judge espousing higher law principles of wisdom possesses the ability to apply the law in a manner contextually related to the human experience. A judge shouldn’t apply the law as if it is an infallible science, but rather should acknowledge imperfections in the law that have led to inequalities and socially manufactured economic and ethnic divisions. More generally, lawyers must possess the courage to pragmatically address such inequalities and divisions in restorative fashion, in an attempt to make society whole again by reconciling the past, not ignoring it.
While we train our lawyers and judges to be skilled in the technical facets of the law, we do not value an independently developed internal wisdom that a judge possesses by way of experience and inner-reflection, as opposed to external study and recitation of doctrine. This doctrinal formalism has dominated our Courts – and trickled down into our lower courts and judicial methodology in general. Thus, courts will continue to exact injustice and take the lives of innocent people if it does not adjust its decisions to the environment / characteristics of each specific case and value human dignity and life above all else.
If a wise judge were given the chance to examine capital punishment with regards to the gross racial disparity in execution rates, they would immediately work to ban the punishment all together. Alternatively, a wise judge could also assess the development of society’s values, which have redefined human dignity to include a protection against state-sponsored murder. The American legal system must catch up to progressive constitutional mandates that prohibit the death penalty.