Last night the governments of two States executed convicted criminals. Texas executed a man who was clearly guilty of the crime; Georgia executed a man who may not have been guilty. Both executions, though, were perfectly legal.

And that’s the problem. It’s absurdly easy to convict a person of a capital crime because it’s absurdly easy to convict a person of any crime. Even though the U.S. Constitution provides accused criminals with a number of safeguards, the fact is those safeguards have been gradually eroded over time—eroded by the courts, eroded by politicians who want to appear tough on crime, eroded by the 24 hour news cycle which feeds off conflict and fear, and eroded by the popular entertainment media that promotes the illusion that lots of criminals are released because of ‘technicalities.’

Our justice system—which is actually a pretty good system—is grounded in the notion of the presumption of innocence. Jurors are to assume the accused is innocent; it’s up to the State to prove they’re guilty, and to prove it beyond a reasonable doubt. But research shows that most jurors (and, in fact, most citizens) tend to believe a person who has been brought to trial is probably guilty of something. That tendency is exacerbated in capital cases because of death qualified juries.

It’s a little-known fact that the process of jury selection in death penalty cases is slightly different than in regular cases. To sit on a death penalty case, a juror has to believe death is an appropriate punishment for some crimes. There’s a certain logic to that; the argument is that a person who opposes the death penalty would be less likely to vote for a conviction. But that same logic applies in the reverse; research demonstrates that a person who believes in the death penalty is generally more likely to vote for conviction.

So a defendant in a capital case is facing a jury that is more likely to convict. From that point on, the cards are stacked against him.

Yes, there is the lengthy appeals process—but what most people don’t realize is that appeals only address points of law, not points of fact. The original jury are the triers of fact; the appelate courts are triers of law. Innocence or guilt are no longer an issue; the only issue argued in the appeals process is this: were the rules of evidence and the dictates of the law followed during the trial? If the answer is yes, then the trial is considered fair—even if the verdict turns out to have been incorrect. It’s not about the verdict; it’s about the process.

It appears in the case of Troy Davis, the letter of the law was followed. The jury, given the evidence they received, reached a fair verdict. The fact that the evidence was flawed or faulty is irrelevant to the appeal process.

It wasn’t always this easy to conduct a legal execution. Proponents of the death penalty often cite the Bible as support—and it’s true, there are any number of crimes in the Old Testament that are punishable by death (including, by the way, adultery and breaking the Sabbath and persistent disobedience to one’s parents). But in practice, it was incredibly hard to impose the death penalty. In order to sentence a person to death a majority of a Sanhedrin (23 men selected for their wisdom and sagacity) had to vote in favor of it. There had to be two direct witnesses to the crime; those witnesses couldn’t be related to each other or to the accused (or the victim); the witnesses had to be men—and men known to the community for their virtue; both witnesses had to be able to see each other at the time of the crime; and both witnesses had to warn the offender that he was committing a capital crime.

In effect, it was almost impossible to condemn a person to death under the way the laws of the Old Testament were practiced. The reason for that was simple. They believed that to take a life as punishment was the prerogative of their God, and to usurp that prerogative was to dishonor God.

I don’t believe in God. But I believe they had the right idea. I don’t think the government ought to be in the business of killing its own citizens, BUT if the State elects to do that, then there ought to be no room for error.