On September 23, 2008, Troy Davis came within two hours of being executed. He was at least temporarily saved when the United States Supreme Court granted a last-minute stay to give it time to decide whether to review his case. But Troy is not out of the woods. If the Supreme Court decides not to take his case, he will once again face execution.

Troy Davis has steadfastly maintained his innocence for all of the many years he has been imprisoned on Georgia’s death row. An African-American, Davis was convicted of the murder of a white, off-duty Savannah Police Officer named Mark MacPhail in 1991. Not a shred of physical evidence links him to the crime. No murder weapon has been found. Nine non-police witnesses testified against him at trial, but all but two of these witnesses have either recanted their testimony or gave contradictory statements prior to Troy’s trial. Some of the recanting witnesses now assert that they were coerced by police to say that Davis was the murderer. One of the witnesses who did not recant was seen acting suspiciously the night of Officer MacPhail’s murder and has been heard boasting that he killed an off-duty police officer.

As extraordinary as it seems, despite the collapse of the case against Troy Davis, and despite the pleas on Troy’s behalf by such leading figures of moral authority as Pope Benedict XVI, former president Jimmy Carter and Nobel Peace Prize-winner Desmond Tutu (PDF), the State of Georgia still wants to execute him.

This deeply troubling case illustrates four truths about our capital punishment system.

First, it is fraught with error. In the past 35 years, 130 innocent death row inmates have been exonerated and released after years on death row, and eight men have been executed even though there were serious questions about their guilt. In other words, the system can’t reliably determine who is guilty, let alone who deserves the death penalty. And, despite popular myths, DNA is no panacea to the scourge of wrongful convictions and executions. It is available in only 10 percent of all murder cases.

That’s Troy Davis’ biggest problem. He cannot convince some death penalty supporters that he is innocent because there is no DNA evidence available to conclusively exclude him as the culprit. These supporters of capital punishment defend his conviction and death sentence by citing the flimsy evidence presented at his trial. But then they turn around and demand that Troy Davis prove his innocence with unassailable, irrefutable evidence.

That’s not how our capital punishment system should work. When it comes to the death penalty, innocence should never have to be proven beyond a shadow of a doubt. We must not execute a human being if there is any legitimate chance that he is innocent.

Second, our judicial system can no longer monitor and control the use of capital punishment. Courts and legislators have made it so difficult for death-row inmates to challenge their convictions and death sentences that the system is unable to correct its own mistakes. It has become like an 18-wheeler barreling down a mountain, with no run-off lanes to stop it.

Third, the death penalty is infected by economic discrimination. It’s a poor man’s penalty. It is about poor people receiving death sentences because their lawyers were too overworked and underfunded to properly represent them.

Some politicians love to go around proclaiming their support for capital punishment but then they turn around and refuse to pay for a fair system. Capital defenders are given grossly inadequate time and resources to adequately defend their clients. We are seeing that again today with the funding crisis in Georgia’s system of providing lawyers for poor people. Fourth, the death penalty discriminates on the basis of race. Study after study in state after state, including Georgia, has demonstrated that, everything else being equal, a defendant is about three to four times more likely to get a death sentence if he kills a white person than if he kills a person of color. And the combination most likely to get the death penalty is a black defendant convicted of killing a white victim.

As former Supreme Court Justice Harry Blackmun declared: “race continues to play a major role in determining who shall live and who shall die.”

In short, the Troy Davis case is a no brainer. The State of Georgia must not execute him. After all, as Justice Blackmun also once said, the execution of an innocent man comes perilously close to murder.

The HDIM is Europe’s largest human rights conference, and the most significant OSCE event addressing human rights and democracy in Europe, North America and Central Asia. For two weeks, more than 1,000 government representatives, human rights defenders, scholars, members of civil society and journalists examined the processes and extent to which member countries of the OSCE have implemented their commitments to human rights and democracy.

The ACLU’s opening statement on the unfair trials held at Guantánamo Bay, Cuba, triggered an audible buzz from the U.S. delegation’s perch at the meeting. The ACLU statement delineated the inadequacy of the Military Commissions Act (MCA), signed into law by President George W. Bush in October, 2006, and noted its lack of "basic substantive and procedural protections codified in the U.S. Constitution, the Geneva Conventions, and numerous international human rights treaties ratified by the U.S." The statement strikes at the incredible inclusion of secret evidence, hearsay evidence and evidence obtained through torture that the MCA allows, and the imbalanced allocation of resources between the prosecution and defense. The statement calls for a special attention to the U.S. failure to meet international juvenile justice standards in its detention, treatment and prosecution of Omar Khadr and Mohammad Jawad who were under 18 at the time of their transfer to and imprisonment at Guantánamo and face charges before a military commission.

The formal response by the U.S. delegate mildly noted that the U.S. took note of the ACLU statement and that the issues raised by the ACLU are subject to debates in the U.S.; debates which consider pending legal cases before courts. He vaguely noted that there is accountability in the U.S., and that free press and independent courts check government actions. Several independent attendees at the meeting acknowledged the American statement as an attempt to gloss over the legitimate concerns of human rights organizations like the ACLU and the international community as a whole.

Freedom House representatives took advantage of this gathering to present their first-ever book written on an individual country (the United States) as a follow-up to a similar report they conducted on freedom in America about 20 years ago. Freedom House is known for its annual reports on freedom around the world in which countries are rated based on their record on civil and political rights. Freedom House’s statement attempted to counter increasing international frustration with U.S. policies and defend what is left of America’s damaged standing in the world. A former journalist from Moldova asked at the event what right the U.S. has to export democracy to the rest of the world.

The ACLU delivered a second statement on the state of capital punishment in the United States, highlighting the problems within a system that has exonerated 130 wrongfully accused death row prisoners in the last 35 years, provides inadequate counsel and access to the courts for indigent defendants, is fraught with procedural barriers that prevent death row prisoners from receiving adequate reviews of their cases, and is mired in racism — as found by the American Bar Association in a three-year study calling for a moratorium on executions.

Following this, the ACLU and Amnesty International packed the room in a joint round-table discussion entitled "The End of the ‘War on Terror’? The Future of Counterterrorism and Human Rights in the OSCE Region." Five U.S. delegates attended the meeting, with one representative gently reiterating the same points made at the Freedom House event a day earlier about America’s strengths in its independent judiciary and free press. These are no doubt American hallmarks and played a vital role in exposing secret government programs and thus checked its power, notwithstanding the repeated attempts by the U.S. administration to restrict dissenting speech and investigative reporting, as well as the government’s unsuccessful attempt to strip courts of their Habeas jurisdiction.

A special guest and speaker who agreed to join the ACLU and Amnesty International was Dr. Adam Bodnar from the Polish Helsinki Foundation for Human Rights. Dr. Bodnar spoke about the ongoing investigation that was ordered by the Polish Prime Minister regarding reports by the media and human rights groups about secret U.S. detention facilities that operated on Polish soil. In 2007, the Parliamentary Assembly of the Council of Europe’s report (PDF)
affirmed that "there is now enough evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania."

A recent report by The New York Times sheds more light on the CIA black site, including the revelation that Khalid Sheik Mohammad was waterboarded 100 times while in CIA custody in Poland.

The presence of the American Civil Liberties Union at this high-level conference on international human rights and democracy was warmly welcomed by members of the OSCE and HDIM participants from foreign governments, civil society groups and media. Most other human rights organizations and non-governmental organizations attending the gathering have historically been from locations east of Vienna. The general feeling of the week’s proceedings made it abundantly clear that the next U.S. president’s administration will have to work diligently to re-establish America’s credibility to speak on human rights on any international platform.

In Maryland, the Urban Institute study of March 2008 noted that it costs the state three times more to try a death penalty case than a non-death penalty case. The report stated that "an average capital-eligible case resulting in a death sentence will cost approximately $3 million, $1.9 million more than a case where the death penalty was not sought."

…Since 1977 we’ve carried out over 1,100 executions in this country to the tune of what is conservatively estimated over $1 billion…

That money has only purchased a system that doesn’t work. In the last 3 decades, 129 individuals have been released from death row because they were innocent. That’s one exoneration for every 9 executions. Would you buy a car that failed to start one time out of 10?

Jack points out that there are approximately 3,300 men and women on death row right now. That’s billions of dollars to execute these prisoners. The death penalty is a morally and fiscally bankrupt policy, and it’s time to abolish it.

First of all, a huge thank-you to everyone who signed the petition to save Troy’s life. The ACLU received nearly 50,000 signatures: add to those efforts by Amnesty and other death penalty abolition orgs, and more than 200,000 people have petitioned for Troy to receive a new hearing.

But he’s not out of the woods yet.

Here’s what we know: The Supreme Court will decide whether to hear Troy’s case on Monday, September 29. Troy’s "death warrant" expires on noon on September 30, but a new warrant can be obtained from Georgia courts. If the Supreme Court turns down the case, they will lift the stay of execution, but it is unclear when.

If the Supreme Court turns down the case, only officials in Georgia will have the power to stop the execution.

So what can you do? Write a letter to the editor of your local paper by using our handy online tool. It even has talking points to help guide your letter-writing.

According to John Holdridge, Director of the ACLU’s Capital Punishment Project (CPP), Troy’s lawyers have asked the U.S. Supreme Court to decide whether the Constitution prohibits the execution of a death-row inmate when there is substantial evidence that the inmate is innocent. Troy’s lawyers have also asked the high court to review the Supreme Court of Georgia’s decision not to grant Troy a hearing at which he could present the evidence that he is innocent.

To learn more about this case, Christopher Hill, State Strategies Coordinator for the CPP, blogged about it on Daily Kos. You can also listen to him talk about the case on Westwood One.

September saw the 130th innocent individual released from death row after having been wrongfully convicted. Will Troy Davis join the ranks of the other men and women who have been killed by the state in spite of compelling evidence of their innocence?

In Gideon v. Wainright, the Supreme Court explained the importance of this right, stating, “[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” The right to counsel protects all of us from being subjected to criminal prosecution in an unfair trial. But nowhere is this right more important than when the accused faces the death penalty.

Unfortunately, the Sixth Amendment’s promise of counsel for all, including the poor, often remains unfulfilled in capital cases. The Supreme Court has affirmed that this right includes the right to an effective lawyer, but all too often, defense attorneys involved in capital cases prove inept, ineffectual, underfunded, and overmatched by the State’s attorneys. Some of these attorneys have even been drunk or asleep at trial.

Courts overturn death sentences on a weekly basis. An extraordinary number of these reversals are granted because the death sentence was a result of egregiously incompetent defense lawyering. In fact, studies show that nearly 70 percent of death sentences are overturned during the appellate process, and a large proportion of these reversals are due to a finding that the condemned received poor and ineffective representation at trial.

Not every capital crime results in a death sentence; most do not. But the greatest predictor of who will live or die is not the severity of the crime or the accused’s criminal background. It is, instead, the quality of the lawyer for the accused. Capital defendants represented by quality counsel rarely receive a death sentence (and wealthy people virtually never do). Shamefully, the whims of local governments and states determine whether, in a particular location, an unprepared and underfunded lawyer or a trained and funded institutional defender will be available for an indigent defendant.

For example, a capital defendant in North Carolina will generally receive vastly superior representation than a capital defendant who may be accused of an identical crime in Alabama. The difference is that activists and attorneys in North Carolina insisted that the legislature make indigent capital defense a priority. Unfortunately, our allies in Alabama have not been as successful yet. In fact, this disparity exists in the state known for its eagerness to use its death chamber, Texas. A defendant in west Texas will (as of recently) have quality representation by an institutional lawyer, while defendants in other parts of Texas will not.

Making matters worse, obtaining relief based on ineffective trial counsel depends on whether the condemned inmate has an effective lawyer representing him during his post-conviction appeals. Here, again, the quality of post-conviction counsel varies wildly and can be downright abysmal. For example, the ACLU has documented numerous cases where lawyers in Florida failed to meet mandatory filing deadlines for their death-sentenced clients’ petitions. The Supreme Court has not recognized the Sixth Amendment right to counsel beyond an initial direct appeal. This means that there is no guarantee that the condemned will eventually receive a good lawyer capable of convincing the reviewing court that the death sentence was a result of poor lawyering in the first place.

The death penalty is the ultimate infringement on a person’s civil liberties. While the ACLU’s Capital Punishment Project favors the abolition of the death penalty for many reasons, we understand that it may not happen right away. Therefore, since capital punishment continues, we would hope that the next President would use the power of the federal purse (i.e., federal funding for criminal justice-related programs) as an incentive for states to provide fully-funded quality institutional defense organizations to ensure the promise of the Sixth Amendment and, in turn, the right to a fair trial. The same can be done to ensure adequate lawyering for post-conviction cases. Nothing less than the adequate counsel our Constitution guarantees is acceptable when the ultimate punishment is at stake.

An African-American, Davis was convicted of the murder of off-duty Savannah Police Officer Mark MacPhail in 1991. No physical evidence links him to the crime, and he has steadfastly maintained his innocence. Nine non-police witnesses testified against him at trial, but all but two of these witnesses have recanted their statements. Some claim that they were coerced by police to say that Davis was the murderer.

One of the witnesses who did not recant was seen acting suspiciously the night of Officer MacPhail’s murder and has been heard boasting that he killed an off-duty police officer.

In 2007, Davis was one day away from being executed, but the Georgia Board of Pardons and Parole voted to give him a 90-day stay because of the injustice in his case – an injustice that moved death penalty proponent Judge William Sessions, former Director of the Federal Bureau of Investigation, to write the Board of Pardons and Parole on Davis’s behalf.

Subsequently, the Georgia Supreme Court agreed to hear Davis’s motion for a new trial, but then denied the motion on technical, procedural grounds. Dissenting, Chief Justice Leah Sears wrote (PDF):

…I believe that this case illustrates that this Court’s approach to extraordinary motions for new trials based on new evidence is overly rigid and fails to allow an adequate inquiry into the fundamental question, which is whether or not an innocent person might have been convicted or even, in this case, might be put to death.

The Troy Davis case is yet another example of our criminal justice system’s inability to ensure beyond reasonable doubt that only the guilty are convicted at trial and sentenced to death. In the last 35 years, 129 innocent people have been released from death row. Five of the exonerees are from Georgia. In many cases, people have been released because of law enforcement misconduct. In two of the five Georgia exonerations, evidence was withheld from the defense.

It is understandable that when a police officer is killed his fellow officers desperately want the culprit convicted. It is unacceptable when those officers intimidate witnesses to ensure a conviction. In Davis’s case, an illiterate man signed a statement he could not read because he was threatened with criminal charges.

The Troy Davis case also is an example of a less obvious problem with our criminal justice system – that the ever-increasing number of procedural hurdles erected by courts and legislators to deny death-row inmates relief and expedite their executions has seriously eroded the system’s ability to correct its mistakes.

Troy Davis cannot prove his innocence to all naysayers because in his case, as in 90 percent of all murder cases, there is no DNA evidence that can be tested to exclude him as the culprit.

Nevertheless, given the serious questions about his guilt, Troy Davis must not be executed. Act now: Write Georgia’s State Board of Pardons and Paroles and ask them to commute Troy’s death sentence.

Sen. Tydings is profoundly concerned about the risk of executing an innocent person. And he believes he speaks from personal experience. He used to represent Walter Correll, who was executed in 1996 for a crime that Sen. Tydings still believes he didn’t commit. (Correll was also mentally retarded and, six years too late for him, in 2002 the United States Supreme Court declared the death penalty a disproportionate penalty for those living with mental retardation.)

Sen. Tydings is also concerned about the failure of death penalty states such as Maryland to provide defendants with competent counsel and a fair trial as mandated by the United States Constitution. And, again, he has good reason to be concerned: each year for the last 36 years an average of three demonstrably innocent persons has been condemned to death in the United States.

Sen. Tydings concludes his remarkable commentary: "The penalty for conviction in capital cases should be changed to life imprisonment without the possibilityof parole until we are willing or able to provide the resources to stop these frightfully tragic miscarriages of justice."

Rachel passed away in Wayne, Maine, where she was raised and later she and her husband, Richard McAlee, built a vacation home. Her last moments were spent surrounded by family and friends.

Although Rachel was a staunch abolitionist, her career took her in many directions, always where she could be of service to her fellow person. At the time of her death Rachel was on the staff of the U.S. House Committee of the Judiciary where she covered issues of crime, terrorism and homeland security. Rachel also taught at the Howard University School of Law.

Her service to the ACLU was not solely in the Capital Punishment Project. In fact, she served as Legislative Counsel for the ACLU’s Washington Legislative Office and Executive Director of the ACLU of Alaska. Rachel’s dedication to the cause of death penalty abolition could be seen in not only her ACLU work but she was also the Director of Alaskans Against the Death Penalty and Chair of the National Coalition to Abolish the Death Penalty.

Rachel’s public service career started early. Prior to law school she was a human rights monitor in Guatemala with the Sanctuary Movement. An internship during her studies at Northeastern Law School took her to Alaska and upon receiving her Juris Doctor degree she returned to work as counsel for the Alaska Public Defender Agency. She earned a Masters from Temple University School of Law.

She wrote and lectured tirelessly to abolish capital punishment. Her first book, Don’t Kill In Our Names: Families Of Murder Victims Speak Out Against the Death Penalty was published in 2003. The book told the stories of family members of murder victims who believed that revenge through the death penalty was not the way to honor their loved ones. In 2005, Rachel authored one of the first investigations on the experiences of the families of the executed, Capital Consequences: Families of the Condemned Tell Their Stories.

While teaching us all how to live a full life with cancer she wrote her first novel, Tales Of The District: Life In The Nation’s Capital In A Time Of Terror, which was published in late 2007.

Rachel was also the primary author of Broken Justice: The Death Penalty in Virginia (2003), Broken Justice: The Death Penalty in Alabama (2005), Not in Our Name (1997), and The Forgotten Population: A Look at Death Row in the United States Through the Experiences of Women (2004) and many similar publications for organizations such as the ACLU, the American Friends Service Committee and Murder Victims Families for Reconciliation.

Those of us who were privileged to work with Rachel know that she rarely took credit for her endeavors, was patient with those who failed to keep up with her pace, and was an excellent colleague as well as a good friend.

It is typical of Rachel that in lieu of flowers she asked that those wishing to send a memorial please make a donation to the National Coalition to Abolish the Death Penalty. She may be gone but her spirit lives on in all those who continue to advance her work of abolition of the death penalty and social justice. As they say in Guatemala on the passing of a friend, Rachel King, Presenté!

In Franz Kafka’s novel, The Trial, the main character is prosecuted and executed for an unnamed crime. We like to think that this kind of absurd surrealism only happens in literature. But something similarly absurd is occurring in the U.S. death penalty system.

Texas planned to execute Jeffery Wood tonight for murder even though he did not kill anyone nor did he intend that anyone be killed. He was not even in the building when the person he was convicted of killing was murdered. The fact that a judge has stayed his execution for last-minute assessment of his mental competency doesn’t detract from the absurdity that he’s still on death row.

Wood and Daniel Reneau drove to a convenience store which they had planned to rob. Reneau got out of the car by himself, walked into the store, and shot and killed Keeran. Reneau was executed for robbery and murder in 2002.

Wood was convicted under Texas’s Law of Parties. Under the Law of Parties, people can be executed even if they didn’t kill anyone. This exists in other states as the felony murder rule.

Another surreal aspect to Wood’s case: In 2007, the Board of Pardons and Parole recommended to Texas Governor Rick Perry that he stay the execution of Kenneth Foster. Like Wood, Foster was also tried under the Law of Parties because he was the driver when a murder was committed. Also like Wood, Foster neither killed nor intended to kill. Governor Perry commuted Foster’s sentence stating that it was unfair that he was tried with the person who actually committed the murder.

In Wood’s case, however, the Board of Pardons and Parole inexplicably and unanimously voted against commutation. Thankfully, a court stepped to stop the execution and order a mental evaluation. This does not mean the process in not any less absurd. In fact, it proves the point. A jury once found Wood incompetent to stand trial in the first place. He was later found competent but he refused to allow his lawyers to put on a defense. He was hours from an execution just to get back to where he was when the court process began.

The Kafkaesque is not limited to Texas. A similarly bizarre execution just occurred in Mississippi. Dale Bishop was executed for a murder. Unlike Wood, he participated in the murder, but he was not the actual killer. What is surreal is that the actual killer is serving life in prison.

These cases provide further evidence that not only is the death penalty fraught with error and basic unfairness, but it is the height of absurdity.

The judge’s order outlines several of LeGrande’s delusions such as his belief that he will receive a pardon and billions of dollars from the state. Although he has been ruled mentally incompetent to be executed, LeGrande is still under a death sentence.

LeGrande’s case highlights the injustice involved in subjecting defendants who are mentally ill to capital trials. Some mentally ill defendants choose to defend themselves because they mistrust the lawyers assigned to represent them. In LeGrande’s case this led to him making statements to the jury that ensured a death sentence. Mentally ill defendants have also refused to work with psychiatrists because they either do not believe they are ill or they do not trust the people hired to assist them.

The Supreme Court of the United States has not banned the execution of the mentally ill. In Panetti v. Quarterman, the Court held that a mentally ill person cannot be executed if he does not understand the reason for his execution. In the absence of a Supreme Court ruling, states have considered bills to exempt the mentally ill from death sentences. Such bills were brought up in Indiana and Washington but have not yet become law. LeGrande’s case makes it clear that it is an unjust exercise to subject people suffering with mental illness to the death penalty.