It's The State(s), Baby

Once the U.S. Supreme Court refused to intercede, late Wednesday night Troy Davis was executed for the 1989 slaying in Savannah of off-duty police officer Mark MacPhail. Unfortunately, Mr. Davis probably did not commit the murder for which he was injected with a lethal potion in Jackson, Georgia. In an editorial Tuesday The New York Times cited reports of "police misconduct, the recantation of testimony by a string of eyewitnesses and reports from other witnesses that another person had confessed to the crime."

Unfortunately, the editors then went downhill, arguing

This case has attracted worldwide attention but it is, in essence, no different from other capital case. Across the country, the legal process for the death penalty has shown itself to be discriminatory, unjust, and incapable of being fixed.

After suggesting the Davis case reflects inequities "across the country," the Times proceeded to identify the states of..... Texas, and its "numerous" errors in the case of the capital case of defendant Duane Buck. Texas, according to Wikipedia, "has executed over four times more inmates than Virginia (the state with the second-highest number of executions in the post-Gregg era) and nearly 34 times more inmates than California (the state with the largest death row population). "

Something is amiss in Texas, as the cases of Duane Buck, Cameron Todd Willingham, and probably others would indicate. So, too might problems come to light in Virginia, Florida, and certain other states were the media to glance at operation of the death penalty there.

The need to do that is obscured, however, when The New York Times wrongly implies that the problems in the Davis case are endemic to the penalty itself. Instead, the death penalty (except for the federal death penalty, extremely rarely applied) is imposed on a state-by-state basis according to the statute in that particular state, with the procedure (within the parameters of federal guidelines) varying by state.

Texas is far more prone than any other state to execute offenders in part because judges on the Texas Court of Criminal Appeals- which hears all direct appeals of death penalty sentences- are elected, rather than appointed. This renders those jurists more likely to uphold death sentences, which may make for an effective campaign issue among voters of the state, who overwhelmingly support capital punishment. Judges of lower courts in Texas also are elected and defense attorneys in capital cases may be appointed based more on political considerations (such as willingness to contribute to a judge's campaign) than on competence. In 2002, Times reporter Linda Greenhouse reported

The Supreme Court, acting in a case that has come to crystallize arguments over the adequacy of legal representation in death penalty cases, today let stand an appellate ruling that a Texas death row inmate is entitled to a new trial because his lawyer fell asleep repeatedly during his original trial.

The state apparently was unconcerned, Greenhouse reporting

The justices said nothing in rejecting the appeal filed by the Texas attorney general, John Cornyn, who argued that the appeals court decision had created an "arbitrary breach in the law" governing the effective assistance of counsel. The state's brief said the ruling, if allowed to stand, would invite myriad appeals by "imaginative" convicts trying to convert a lawyer's "impaired trial performance" into an automatic ticket for a new trial."

While 16 states and the District of Columbia have abolished capital punishment and others rely heavily on forensic science, especially DNA evidence, to determine guilt or innocence, the state of Texas has a relatively low bar to imposing a sentence of death. Perhaps other states also are not fastidious. In The Times' article of 2002, Greenhouse added

Just last week, in a death penalty case from Tennessee, the justices voted 8 to 1 in overturning a a federal appeals court's ruling that a defense lawyer's failure to make a closing argument at his clinent's sentencing hearing was a deficiency of such magnitude as to invalidate the death sentence.

In common with the case today, the Tennessee case, Bell v. Cone, raised an issue of how to apply the Sixth Amendment's guarantee of effective assistance of counsel: when is a lawyer's ineffectiveness sufficiently glaring that the defendant can be presumed to have suffered serious harm?

When considering state policies on taxes, transportation, abortion, same-sex marriage and almost everything else, attention is focused on that state. When we turn to consider capital punishment, a state prerogative, the urge to generalize from the specific, to view each state as identical, apparently is overwhelming.

There appears to be a pattern: North Carolina, Texas,Virginia, Tennessee, and Florida (which also executes many individuals) are all Southern states. A pattern does not causation make. Nonetheless, somebody should be asking whether there is a fatal flaw in the death penalty process in a particular state rather than assuming procedures are the same throughout a nation with widely divergent values, mores, and laws.

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