From Doug Berman at Sentencing Law & Policy, news that Georgia is poised to put Troy Anthony Davis to death at 7 p.m. today.  Aside from all the normal reasons why the death penalty is problematic, there is one additional reason that usually touches a nerve, even with proponents.

In July 2007, the state Board of Pardons and Paroles stepped in and stayed Davis’ execution less than 24 hours before it was to be carried out. But on Monday, the board rejected pleas to reconsider its recent decision to deny clemency on grounds there is too much doubt as to whether Davis shot and killed a Savannah police officer.

Davis’ last hope to avoid his 7 p.m. Tuesday execution now appears to rest with the U.S. Supreme Court, where his lawyers have also asked for a stay of execution. Davis, 39, sits on death row for the Aug. 19, 1989, murder of Officer Mark Allen MacPhail. But since Davis’ 1991 trial, seven key prosecution witnesses have recanted their testimony.

Doubt of guilt is one of the fears that impacts even the staunchest supporter of the death penalty.    The Georgia Board of Pardons and Paroles says that it studied this case for a year, and determined that clemency is not warranted.  Is it?  Here’s the AP recap :

Davis was convicted of the 1989 murder of 27-year-old officer Mark MacPhail, who was working off-duty as a security guard at a bus station.

MacPhail had rushed to help a homeless man who had been pistol-whipped at a nearby parking lot, and when he approached Davis and two other men, he was shot in the face and the chest.

Witnesses identified Davis as the shooter, and at the trial, prosecutors said he wore a “smirk on his face” as he fired the gun, according to records. Jurors convicted and sentenced him.

But Davis’ lawyers say new evidence could exonerate their client and prove that he was a victim of mistaken identity.

Besides those who have recanted their testimony, three others who did not testify have said another man, Sylvester “Red” Coles confessed to the killing.

Coles testified against Davis at his trial. He refused to talk about the case when contacted by The Associated Press during a 2007 Chatham County court appearance on an unrelated traffic charge, and he has no listed phone number.

Prosecutors have labeled the witness statements “suspect,” and say the case is closed.

But for the fact that this is a death case, it would not have received anywhere near the level of interest it has.  Like it or not, society accepts the imperfection of the system to the extent that innocent people, or at least people who aren’t as guilty as the government says they are, go to prison. 

We haven’t a better way to distinguish the guilty from the innocent, and so we demand that a few take one for the team.  Sure, the old maxim that it’s better that 100 guilty men go free than one innocent man is imprisoned is often uttered, but the insiders know that we say this to pacify the masses, not because it’s true.  It makes people feel better about our imperfect system, and that’s really what our system of justice is all about.

But throughout our debate over the death penalty, the distinction is often made between those that society feels certain, absolutely positively certain, are guilty and “need killing” as my Texas friend explains to me, and those where the case is less clear.  The problem here is that this is one of those “less clear” cases.  So why are those who have the power to grant clemency toeing the line so closely?

Isn’t this one of those “theoretically too close to call” cases where death penalty advocates say execution is not the proper punishment?  The problem is that no matter where the line is drawn between those for whom death is views as the “right” punishment and those where guilt is too close to call, there will always be a government pushing the envelope to see how close to doubt they can come and still execute someone.  Oddly, it rarely helps when a case becomes a cause célèbre, as this has, since it seems like a challenge to state hegemony, and state’s hate to lose such challenges.

At 7 p.m. tonight, we may have an answer to whether the death penalty is reserved for those who are absolutely positively guilty, or just those we want to put to death anyway.  If the latter, then the discussion over the merits of the death penalty is a silly exercise in futility.

Update:  Stay Granted, at least for the moment.