The Costly Lesson of Troy Davis

Click picture to learn how to educate others about Troy Davis

One might think that a guy excited about Jewish-Christian ministry would surely dedicate some verbiage today on the scheduled bid for Palestinian statehood in the UN security council. Or at least gripe about the facebook news feed update inflicting confusion and distress across the Interwebs, like virtually everybody else is doing at the time of this post. But the single most noteworthy event on my mind right now is the probable, unjust execution of Troy Davis tonight and the exceedingly costly lesson it should teach us.

Troy Davis is an American death row inmate convicted of the murder of a Savannah, Georgia police officer, Mark MacPhail, in August of 1989. According to Amnesty International’s dedicated page on the matter, the case against Mr. Davis “consisted entirely of witness testimony which contained inconsistencies even at the time of the trial. Since then, all but two of the state’s non-police witnesses from the trial have recanted or contradicted their testimony.” In fact, these inconsistencies prompted the U.S. Supreme Court to order a federal district court in Georgia to review Mr. Davis’s situation to determine whether or not new evidence had arisen that could clearly establish his innocence. This resulted in a June 2010 evidentiary hearing during which nearly all of the witnesses who had originally testified against Davis altered their stories, some claiming that they had been coerced by police in their original testimonies and others alleging that a completely different assailant had actually confessed to committing the crime if question. In fact, you can view a .pdf of multiple, sworn affidavits recanting testimony or statements given in Troy Davis’s case right here.

But this is where things get complicated. As Bob Herbert’s 2009 article in the New York Times describes the matter:

There was no physical evidence against Mr. Davis, and no murder weapon was ever found. At least three witnesses who testified against him at his trial (and a number of others who were not part of the trial) have since said that a man named Sylvester “Redd” Coles admitted to killing the police officer.

Mr. Coles, who was at the scene, and who, according to witnesses, later ditched a gun of the same caliber as the murder weapon, is one of the two witnesses who have not recanted. The other is a man who initially told investigators that he could not identify the killer. Nearly two years later, at the trial, he testified that the killer was Mr. Davis.

How could a just basis for the execution of any individual be drawn from such a tenuous body of evidence? It seems that much has turned on U.S. District Court Judge William T. Moore Jr.’s  August 24 rejection of Troy Davis’s petition on the grounds that Davis failed to prove by “clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.” Speaking self-consciously as one not extremely well versed in American jurisprudence, this is an exceptionally precarious measure against which to hold a man’s life in the balance. Since the state of Georgia requires a unanimous jury to avoid a mistrial, just one juror dissenting from a guilty verdict at Davis’s original court date would have been sufficient to forestall his conviction and prompt a retrial at most or a dismissal of his case at least. But now, the situation is reversed; the burden of proof lies on Davis’s shoulders to demonstrate that all reasonable jurors would have reached the conclusion that he was not guilty based on updated evidence.

I’m aware of the fact that there’s a litany of case history upon which Judge Moore based his ruling. Its goal is to uphold the integrity of past legal proceedings even while attempting to course-correct for substantially new information, and while this makes plenty of sense in general, the matter is tensed when something as final as the taking of a life is in question. I am in no way attempting to position Moore as the villain of this story, nor am I presently interested in analyzing Coles’s relative guilt or innocence and its implications for Davis’s case. Nor is my purpose to argue against the death penalty at the level of pacifistic principle, to claim that the practice of state execution is inherently barbaric and should be outlawed because it is always wrong in every circumstance to take a human life.

Theologians have debated this matter for centuries, and despite the fact that Jesus himself rebuked his disciples when they attempted to assault others according to Luke 9 (and even healed at least one person his disciples had impertinently attacked when he was arrested), Jesus also kicked arse when appropriate and recommended a variety of submission to earthly, governmental authorities. Perhaps explicitly expanding on this point in the thirteenth chapter of his letter to the church in Rome, Paul asserted that such “rulers do not bear the sword for no reason. They are God’s servants, agents of wrath to bring punishment on the wrongdoer.” There is such a thing as governmentally effected, non-pacifistic justice.

Rather, the main point I want to make in this post is this: Even if there are circumstances in which it is legitimate to take a human life, the American justice system’s particularities repeatedly fail to yield the most just state of affairs for our society in the case of the death penalty. At the time of this post, nearly 150 previously convicted death row inmates have either been acquitted or had their charges dismissed since 1973 upon investigation of new evidence or review of past court proceedings–only 17 of which depended on the submission of new, DNA-based evidence. Our justice system can reverse an indefinitely lengthy prison term when it becomes clear that a mistake has been made; it cannot reverse the taking of a human life.

Furthermore, multiple studies have emerged demonstrating that is actually more costly to execute convicted individuals rather than imprison them for life without the chance of parole. One California-based study found that the state could save $1 billion in five years by replacing the death penalty with permanent imprisonment. (And if you doubt the legitimacy of these claims, visit this website presenting a list of noteworthy pros and cons arguments comparing the costs of the death penalty versus life in prison.) Not only is the death penalty extremely risky in practice at the bioethical level, it is literally worse for our economy.

But speaking now as an aspiring theologian, one of the main points that keeps arising in my mind regarding the practical problems with the death penalty and American jurisprudence is its pitting a sense of retributive justice against redemptive justice. As reported by a Fox News article posted yesterday on Troy Davis’s case, the son of the police officer who was gunned down, Mark MacPhail Jr., believes that the state of Georgia’s repeated denials of Davis’s requests for clemency boil down to one, all important result, that “justice was finally served for my father.” If Davis is not guilty as many claim, MacPhail is tragically misguided, and another injustice has been perpetuated from the moment Davis was imprisoned up to the final hour of his incarcerated life. But even if MacPhail is right, even if Davis actually did murder his father, executing Davis will not reverse this fact. Killing Troy, even if he is guilty, will not bring back Mark’s dad, and it will not replace the years of loss with which Mark has coped from his infancy onward.

The Bible has two, key terms reserved for its description of divine justice: shalom and the Kingdom of God. It is shalom that both Troy and Mark and pretty much everyone else needs today, and that is a state of peace, well-being, and wholeness rooted in the self-giving being of God in which we have the opportunity to participate. Human retribution cannot accomplish wholeness, even when it is directed against a truly guilty party. Only the redemptive grace and love of God can repair Mark’s loss if Troy is guilty, and only that same love and grace can heal Troy’s wounds if he is innocent. The death penalty interjects a time limit on this process for the sake of retribution that tenses our opportunity to experience justice for the sake of redemption. It does so in an extremely problematic way for those of us who are convicted, in a dramatically irreversible way for those of us who are executed, and in a deeply costly way for those of us who are free.

Moreover, this willingness to trump God’s redemptive justice with humanity’s attempts at retributive justice in the case of the death penalty threatens to obscure the fact that the only perfectly just state of affairs for which we can hope has already been inaugurated and paid for through the penalty God willingly took upon God’s very self in Jesus’s sacrifice on the cross. The author of the book of Hebrews lifted a passage from Psalm 45 by putting it this way: Through Messiah’s death and resurrection, God effected a “throne” that will last forever, “a scepter of justice will be the scepter of your kingdom. You have loved righteousness and hated wickedness; therefore God, your God, has set you above your companions by anointing you with the oil of joy.” It is only in the Kingdom of God, heralded by Jesus’s first coming and eventually completed through his second, that society will finally be made perfectly just. In the mean time, we can find no lasting consolation in vengeance for wrongdoing because God is the only being capable of equitably executing such, and God has already freely elected to absorb the cost of this upon God’s very self. As Paul put it while quoting from Deuteronomy 32:35 in Romans 12:19, “Beloved, never avenge yourselves, but leave it to the wrath of God, for it is written, ‘Vengeance is mine, I will repay, says the Lord.'”

We should work hard for justice, and there is a legitimate place for our governments to attempt to effect such. Again, this is not a diatribe for the sake of pacifism, full stop. But the ethical and theological costs of the death penalty far outweigh any possible benefit when considered from a general, practical standpoint. And more specifically, our country will execute Troy Davis, a man far from clearly guilty, this very night unless some last-minute, highly unlikely reversal of fortune occurs. Countless people have petitioned on his behalf across the religious and political spectrum, including Pope Benedict XVI, President Jimmy Carter, former U.S. Representative Bob Barr, ex-Justice Department official Larry Thompson, former FBI Director William Sessions, the Rev. Al Sharpton, Amnesty International, and the NAACP to no avail.

If it’s too late to stop an unjust execution for Troy Davis, may we learn an exceedingly costly lesson about how we can and should live better in the days ahead. And may God bless you and I to labor to that end until Messiah returns in glory. (Note: I am indebted to my San Franciscan brother, Marcel Jones, for initially drawing my attention to this matter.)

Update: The state of Georgia has ended the life of Troy Davis, confirmed dead at 11:08pm EST. Immediately before Davis was administered a cocktail of lethal injection, a reporter with the Associated Press recorded his final words, as follows:

I’d like to address the MacPhail family. Let you know, despite the situation you are in, I’m not the one who personally killed your son, your father, your brother. I am innocent.

The incident that happened that night is not my fault. I did not have a gun. All I can ask … is that you look deeper into this case so that you really can finally see the truth.

I ask my family and friends to continue to fight this fight.

For those about to take my life, God have mercy on your souls. And may God bless your souls.

Yesterday, Davis sent this statement through Amnesty International: “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. I’m in good spirits and I’m prayerful and at peace. But I will not stop fighting until I’ve taken my last breath.”

If you want to join that fight in his stead, here is one beginning.

8 Comments (+add yours?)

  1. @dwcongdon
    Sep 21, 2011 @ 18:02:36

    A very good post. For Christians, I think the case is even stronger than you make it, since I don't think we can turn Jesus' actions in the temple into an example for anyone else to follow, nor is Romans 13 a blanket legitimation of government authority. Barth and Yoder, to name just two figures, have offered different interpretations of Rom. 13 that are more persuasive to me. In any case, though, the problems with the death penalty are numerous, and the execution of Troy Davis is a gross injustice.


    • jacobheiss
      Sep 22, 2011 @ 00:35:56

      Thanks so much for offering your reflections, David. If you're interested in cross-posting your thoughts on capital punishment from a Christian perspective predicated on your treatment of Barth and Yoder (or if you can direct me to a previously published post that essentially does this), I'd love to explore it and share it with others.


  2. Gustavo Maya
    Sep 21, 2011 @ 23:00:14

    This is a very thoughtful and well-written post. In theory, it's possible to say that some crimes are so heinous that they merit the death penalty. However, as your post pointed out, in practice, the American criminal justice system often fails in determining guilt or innocence in capital cases, despite the many procedural safeguards put in place to protect the innocent from a false conviction. (In fact, those procedural safeguards are precisely why the death penalty is so expensive.) Although I can't speak knowledgeably about the law or facts of Troy Davis' case, I can say a little about capital punishment.

    From my own observations, American criminal law – I use this term loosely because criminal law is mostly a state, not a federal, matter with a few exceptions – conceives of crimes as transgressions against the community, not the individual. This is why, for example, criminal cases are prosecuted by the state. When someone breaks a criminal law, they undermine public safety and order. Because it's in the interest of the state, and ultimately the people, to maintain the public order, the state is able to exercise its police power – its power as a sovereign over the people – to the extent that such exercises of power are not violative of the state and federal constitutions. In the capital punishment context, the two main rationales for the death penalty are retribution and deterrence. One of the usual reasons for the retribution rationale has some grounding in Kant in that it seeks to treat individuals as worthy of respect or as ends in themselves. When someone kills another, doing likewise to them is a sign of respect for that individual's autonomy. Another rationale is that it restores the public balance, as if a debt has been incurred and it must be paid off. The deterrence rationale is intuitive: if people who kill others are themselves put to death, then people will be deterred from killing others. Now, I'm not defending either rationale; I'm merely stating the reasoning behind them. The effect of this way of conceiving of criminal law is that the victim drops out of the picture. Neither their restoration nor redemption is taken into account by the criminal law. Although some groups – notably the Mennonites – have been working on models of restorative justice, for the most part, those aren't the aims of the law. It's sad that the criminal justice system can be so incredibly myopic as to leave in its wake so many broken people, both victims and perpetrators.

    With that said, it's also difficult to conceive of a criminal justice system, in our broken and sinful world, that can incorporate restoration and redemption as penological goals. First, as you pointed out, only God can redeem. It's uncertain how, if at all, the law can work towards redeeming the lives of victims and perpetrators. Second, it's unclear what restorative justice would mean in the capital punishment context. Again, as you pointed out, a life has been taken; it's gone and won't be coming back this side of the eschaton. These aren't knock down arguments, just things to consider when contemplating alternatives to the current criminal justice system. I guess the safest bet is life imprisonment, but that might not satisfy community outrage and may lead to increasing acts of vigilante justice. Although one might argue that fear of community outrage and vigilante justice are poor reasons for an especially severe punishment in a liberal democratic society, something more akin to mob rule than respect for individual rights, it's also worth keeping in mind that the law and the state depend on the consent of the governed for their legitimacy. When enough people question their practices, then they are likely to change them or risk losing their legitimacy and having a revolt on their hands. This argument cuts both ways however. One might argue that capital punishment calls into question the legitimacy of the state, its laws, and the institutions that support them. Which is a valid point. All we can hope for is that enough people voice their displeasure over occurrences of injustice to force a change in the law and politics of capital punishment.

    Finally, I want to make a brief biblical/theological observation. An aspect of the biblical narrative that you failed to emphasize is that Jesus' crucifixion was itself a form of capital punishment meted out by the Roman Empire. Christians, more than most others, should be well aware of the potential unjust punishment of innocent individuals in the name of the empire to secure its peace and order. However, we should also bear in mind that this is the same empire that Paul was referring to in Romans 13. So, there's a lack of moral and theological clarity on the issue of capital punishment in the bible for if the unjustified taking of an innocent life is unjust, why wouldn't Paul and the other biblical writers recognize it, condemn it, or at least qualify their claims about the government's authority to wield the sword?


    • jacobheiss
      Sep 22, 2011 @ 01:37:42

      Excellent points, Gustavo. Like a true lawyer, you hit the topic from multiple perspectives while working towards your rhetorical focus; like a true theologian, you left one of the most interest parts dangling right at the end!

      I'd wager that Yoder's pacifistic critique of what he termed "Constantinianism" provides a couple potentially fruitful paths for exploring what you called restorative justice, not to mention one resolution to the apparent lack of clarity on capital punishment in scripture. (Perhaps Yoder is who you had in mind when you mentioned Mennonite work on these matters in your comment.) Looking just at the latter case for the moment, Ted Grimsrud offered a paper back in 2008 that I found helpful, currently hosted at

      The gist of his take on Yoder's reading of Romans 13 starts with the assertion of a general goal organizing Paul's entire letter, i.e. "to live visibly as communities where the enmity that had driven Paul himself to murderous violence is overcome—Jew and Gentile joined together in one fellowship, a witness to genuine peace in a violent world." With respect to the passage in question, Grimsund argues that Jesus's death and resurrection exposed and disempowered the idolatrous aspects of earthly authority such that the Christian's submission to Empire pays it respect on the one hand, given God's establishing its being and subsequently messing around with that being in the cross. On the other hand, the Christian stands apart from Empire in the sense that the Christian does not revere earthly authority and does not hesitate to actively albeit nonviolently oppose it when it conflicts with God's directives. (Grimsund probably winds up here by reading Romans 13 through Colossians 2:15 with Yoder here.)

      In other words, the lack of qualification on Paul's part regarding how the government is supposed to the "wield the sword" is predicated on his disinterest in telling governments what to do. Paul is focused on telling Christians how to live the gospel regardless of any activity of any government. Paul's advice in Romans 13 doesn't comment on the state of affairs when Christians rise to a position of political power such that they can affect the machinations of government. Hence, Yoder's claim that the problems for both church and society really arise with Constantinianism, with Christian control of and deformation by the power of Empire.

      If we want to continue biblically, I believe the next best step is to look back at Old Covenant directives and how the New Covenant tweaks those. In the Old Covenant, we find both capital punishment and retributive justice recommended for the designated parties within the nation of Israel who are also supposed to be following after God at that time; that's a fact. In the New Covenant, we find an absence of carry over in the case of the former and the explicit reversal of the latter, cf. Jesus's treatment of the "eye for an eye and a tooth for a tooth" rule from Exodus 21, Leviticus 24, and Deuteronomy 19 in Matthew 5 to the end of not resisting people who attempt to inflict evil upon you. Obviously, I'm sketching a response rather than fleshing one out entirely here, but I would assert a drift from capital punishment and retributive justice.

      Moving back to jurisprudence, I think those two "pay offs" of the death penalty in deterring would-be perpetrators and slaking public outrage are intertwined. Picking up my own term at this point, I suppose a more redemptive form of justice would look for different ways to effect deterrence rather than fear of horrific reprisal while also trying to channel public outrage towards more productive ends. Indeed, forms of public outrage that threaten the body politic suggest a critical lack of commitment to redemptive justice! But saying any more on these points here would result in virtually another post, and I want to pay you respect and thanks for your comment by erring on the side of brevity even if my rejoinder winds up being far from completely compelling.

      Gracias una vez más, mi amigo.


  3. Gustavo Maya
    Sep 22, 2011 @ 16:09:43

    Thanks for your thoughtful response. My reference to Mennonites was actually an acknowledgment of a program that my undergraduate university has ( – my undergrad is Mennonite and is deeply influenced by Yoder and the general Anabaptist pacifist stance. I also want to point you to an article written by Jeff Stout called "The Spirit of Democracy and the Rhetoric of Excess" published in the Journal of Religious Ethics. There he makes comments directed at Hauerwas' nonviolent stance that implicate Yoder's interpretation of scripture. At one point, Stout says, "The widespread notion that Yoder’s work settles this matter strikes me as wishful thinking. I admire some of Yoder’s writings immensely—in particular, the reflections on the public role of the people of God in For the Nations (Yoder 1997). It seems to me, however, that his biblical exegesis has been treated by contemporary theologians in a remarkably uncritical way." In a few short pages, Stout issues a powerful critique of the idea that the biblical God is essentially nonviolent. So far, I'm unaware of Hauerwas or other pacifists offering an effective response, although that's not to say that there isn't. These comments are not meant as knock down arguments; their merely meant to demonstrate that the work of Yoder and Hauerwas on this subject are not the final word and that their reading of scripture can also be problematic. If you don't have access to a journal database that subscribes to the Journal of Religious Ethics, let me know, and I'll email you a copy if you'd like to read Stout's challenge to Hauerwas and other nonviolent interpretations of scripture.


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