Scalia: Death penalty is OK–for innocent people
From Alan Dershowitz, via In All Things, via The Deacon’s Bench:
I never thought I would live to see the day when a justice of the Supreme Court would publish the following words:
“This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”
Yet these words appeared in a dissenting opinion issued by Justices Antonin Scalia and Clarence Thomas on Monday. Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”
It would be shocking enough for any justice of the Supreme Court to issue such a truly outrageous opinion, but it is particularly indefensible for Justices Scalia and Thomas, both of whom claim to be practicing Catholics, bound by the teaching of their church, to do moral justice. Justice Scalia has famously written, in the May 2002 issue of the conservative journal First Things, that if the Constitution compelled him to do something that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court.
Now, I realize that the death penalty is not intrinsically immoral (though I think the past few Popes have made it clear that under modern conditions it is unnecessary to protect society and therefore is practically immoral), but, as Dershowitz writes,
[W]hatever the view of the church is on executing the guilty, surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution. How could he possibly consider that not immoral under Catholic teachings? If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?
If Justice Scalia thinks he is some modern-day equivalent of St. Thomas More, he is sadly mistaken.
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I saw this earlier and was appalled. Of course, where there is Scalia, there’s bound to be Thomas.
And with this decision, how can anyone say abortion is not justified by the Constitution, if it has not been determined that one can kill the innocent? Seriously, it’s just a trial between the mother and her child, with the mother the last court of appeal, subsidiarity in action. This of course show why abortion and death penalty decisions are inter-connected, and the arguments for one or the other lead to arguments for both.
Why, Henry, that isn’t politically expedient, as we would then need to take a deeper look at class and socio-economic biases, something the typically middle class and white front of the “pro-life” movement does not want to face.
I’m no lawyer but isn’t Dershowitz’ example pretty stupid? The opinion specifies ‘a full and fair trail’ — if the man convicted of killing his wife then shows up with his wife alive, how on earth would the original trial have been ‘full and fair’?
Better example would be producing evidence explicitly making it clear the convicted could not have done the crime.
RM
So many Catholics don’t realize that Scalia typically adheres to positivism in his constitutional jurisprudence (except when he’s inventing rights like the right to an unclouded election victory). In the 1980s, I deeply admired him. Then he started believing his own press, as it were, and the results, while always entertaining in some way, have been less edifying.
The lot of you:
There is gubernatorial pardon power for a reason.
But of course Scalia does believe that the constitutionally abortion is permissible – it’s just that states can (and should) regulate it. It seems pretty obvious that the constitution doesn’t forbid all bad things. What does it forbid? Maybe we should read it to see, and not assert that because some things are really bad (which they certainly are, they are unconsitutional.
Zak: do you honestly believe that the Founding Fathers intended to allow demonstrably innocent people to be executed?
Scalia is one sick dude.
While I hate Scalia’s love of the death penalty, I’m not sure Dershowitz is right. Usually, the standard for review is that there needs to be new evidence that was unavailable at trial. In this case, there wasn’t so there shouldn’t be an appeal allowed. A wife who was actually alive but that information was not known at trial would be grounds for an appeal.
I believe this rule is in place to attempt to curb excess appeals i.e. so that people can’t try a case and then apply for appeals based on evidence that they chose not to present, forcing expensive re-trials.
While I don’t know if I agree with Scalia’s assessment of this case (I don’t know enough, as m new law school professors keep demonstrating to me) I don’t think he’s arguing for what Dershowitz says he’s arguing for.
It might be helpful to actually read Scalia’s dissent in full (it is only 6 pages). I think it puts this is some context
http://www.scotusblog.com/wp/wp-content/uploads/2009/08/Scalia-opin-Davis.pdf
Again the question is what is “claims of Innocence” Are we now saying that It can go all the way up the State system and then Federal Courts will do the trial all over again. In large parts these are not “fact finding” bodies
Scalia also makes a good point here
“Today, without explanation and without any meaningfulguidance, this Court sends the District Court for theSouthern District of Georgia on a fool’s errand. That court is directed to consider evidence of actual innocence which has been reviewed and rejected at least three times, and which, even if adequate to persuade the District Court,cannot (as far as anyone knows) form the basis for any relief. I truly do not see how the District Court can discern what is expected of it. If this Court thinks it possible that capital convictions obtained in full compliance withlaw can never be final, but are always subject to being set aside by federal courts for the reason of “actual innocence,” it should set this case on our own docket so that we can (ifnecessary) resolve that question. Sending it to a district court that “might” be authorized to provide relief, but then again “might” be reversed if it did so, is not a sensible way to proceed.”
This part seems to be left out of most of the criticism I have seen. Also why not just stop at Execution. What about convictions for armed Robbery or any other claim. In effect Scalia is asking how in the world would this work. Good question.
If one reads what Scalia wrote in context here, it is clear that Scalia is not arguing about whether it is constitutionally ok to execute an innocent person. (It should be noted that convincing a federal habeas court of one’s actual innocence is not the same thing as actually being innocent.) This dissent from Scalia is fundamentally an argument about who should decide the claim of innocence in this case.
Scalia notes that the Georgia Supreme Court rejected the defendant’s actual innocence claim on its merits, and the claim had also failed to persuade every judicial and executive body that considered it. If Scalia thought that whether the actual innocence claim had merit was simply irrelevant, why would he even bring that up?
Under the Constitution and federal and state law, in questions over whether a claim of actual innocence concerning a state conviction has merit, someone has to have jurisdiction. This dissent seems to establish that Scalia thinks that since the claim of actual innocence here is not a question about constitutional or federal law, then the state courts and authorities should be allowed to decide it, but that’s about all the dissent claims.
“This part seems to be left out of most of the criticism I have seen. Also why not just stop at Execution. What about convictions for armed Robbery or any other claim. In effect Scalia is asking how in the world would this work. Good question.”
So the virtue of the death penalty is that it is, inarguably, the final word?
It provides a clear, irreversible verdict, when the weak-minded would prefer to natter on about “truth” and “innocence”?
Yikes!
It seems to me that an important point is overlooked. It is not up to the defendant to prove their innocence. It is up to the prosecutors to prove their guilt.
If the living wife could turn up, who was the corpus delicti?
A true maxim of the courts: Do not expect to find justice in court; expect to find the law.
How embarrassing — it was the 5 Catholic justices who voted in favor of the death penalty.
Darcy that is correct
One of the problems is that on botth the righ and left both sides look at Judicial rulings in some partisan framework. It is a lot more complicated than that. I bet dollars to donut that few that have frequented this thread have read the majority or the monority opinion
This is one reason why people on the the left or right have very little to say about Judicial opinions. They don’t even have a basic framework to start with because everyone is an expert. It is all so depressing
It seems to me that an important point is overlooked. “It is not up to the defendant to prove their innocence. It is up to the prosecutors to prove their guilt.
If the living wife could turn up, who was the corpus delicti?
A true maxim of the courts: Do not expect to find justice in court; expect to find the law.”
Despite what the original poster is saying this is not what Scalia is talking about. Again my GOD I wish people would read the Opinions. I know I have legal training but these Opinions are not that cloudy for the non legal mind.
“How embarrassing — it was the 5 Catholic justices who voted in favor of the death penalty.”
For those that might be confuseed it should be noted that three Catholic Justices voted with the majority in this case. Whether they were right or wrong is a matter of debate. But the fact that it is not even mentioned in the comment section shows well the unfortunate hackish view that people on all sides have toward the courts
jh,
But isn’t the problem that this opinion seems to privelege legal procedure over the question of innocence?
As long as the process was followed correctly, we can execute with clear consciences?
One of the basic arguments against the death penalty is that the law is not perfect, and we should err on the side of mercy.
Scalia. . . to my legally untrained mind. . . seems content with procedural correctness.
No?
“Scalia. . . to my legally untrained mind. . . seems content with procedural correctness.”
I think Scalia is saying is the Court is jumping ahead without giving a overall basis for it and going to some remedy that is based in nothing for the future.
Where is the jurisidiction for the Federal Court to take “claims of Innocence” Heck why not a City Court or some other juridiction
I am just saying looking at the Dissent in the whole makes it at least appear to me what Scalia is getting is a tad less extreme that is beieng presented here.
I mean if people are going to take Scalia to raks they better offer som ejustification how a Federal Court can hear “claims of innocence” and what is the standard and procdedure
And as Scalia notes how shall this standard apply to other non Federal color of law claims. Especially in a era when the FEDS are making a Federal Crime under the sun of everything and getting overstressed.
Fellows,
To take this (and Dershowitz’) view of Scalia’s statements, you also have to assume he’s both amoral and a bit of a moron, and that he’s not even sufficiently politically astute to hide it.
Is that likely?
I mean, even if you don’t care for his politics or his jurisprudence, is that explanation of his words really probable? Near the close of his trial in “A Man For All Seasons,” Thomas More argues, “but is it probable…?!” in much this same way. Given a snippet of evidence explicable in two ways, if one way requires one to assume absurd improbabilities, the other is the better way.
So I judge that the more reasonable reading of Scalia’s opinion is given by Darcy and JH.
As for those who view Scalia’s jurisprudence as mere advocacy for the Republican party: That’s one possible explanation, and there is another possible explanation. Both fit the evidence equally well…but the second explanation has this additional argument in its favor: That it is the explanation Scalia himself gives.
Scalia states is interested in interpreting the words of the Constitution according to the intent of the authors of those words, as those words were defined at the time of authoring. He observes, for instance, that the death penalty was not unused at the time, but that abortion was illegal, and neither item was controversial among the founders. Hence his desire to interpret the words of the founders in a way that would not be out-of-character with their authors.
Which is why, given the choice between “he is a thuggish partisan hack with no conscience” and “he is a believer in framer’s intent” I opt for the latter theory. (And I further assume that Republican politicians selected him for higher offices because the framer’s intent philosophy lines up nicely with their desire for conservative jurisprudence.) Both theories explain the evidence of his opinions alone, but only the latter is consistent with the rest of reality.
“Actual innocence” is a very specific term. Scalia is writing about a situation in which a defendent has a valid trial but later tries to get a court to throw out the results. A court can overturn a conviction if it is shown that the trial was unfair. A court can overturn a conviction if the defendent pleaded guilty and based his defense on diminished capacity, or pleaded not guilty on the basis of justification, only to have evidence emerge that the defendent was actually innocent. The only thing a court can’t do is overturn a fair trial in which a defense of actual innocence was rejected by the jury. This is known as the principle of finality, and without it, jury trials would mean nothing. You can’t ask the appeals courts to re-rule on every matter of fact, just the matters of law.
The only thing a court can’t do is overturn a fair trial in which a defense of actual innocence was rejected by the jury.
That is insane. You are telling us that a verdict of “guilty” must be sustained if new evidence is discovered which was unavailable at the previous trial through no fault of prosecutors or defenders?
Hmm. I read the quote a couple of times and admit, I wasn’t sure it was being interpreted correctly. But then I read the actual piece by Dershowitz, and I think that the much more disturbing quote was at the bottom of the first page. Does the Justice actually think that Catholics should support policies contrary to the Church’s teaching in order to gain political influence?
This quote on andrewsullivan.com yesterday just about sums it up regarding Scalia:
Scalia’s Constitution does not guarantee a man who has been convicted and sentenced to death–but who is actually innocent–a review of his case. It is certainly true that the Constitution provides no absolute guarantee of justice. But Scalia’s view effectively puts an expense meter on the justice process. Once the process has run through certain steps, that’s it. In his view, it really shouldn’t matter that subsequent evidence establishes that the conviction is mistaken. It’s more efficient simply to implement the decision and execute the innocent man.
How anyone here can call Scalia a Catholic is absolutely beyond me: just as with abortionists, for him, life is a COMMODITY, which courts have a right to ajudicate regardless of guilt or innocence. He’s just as much a godless positivist as any of the left-wing pro-abortionists that most of the Catholic Fundos here like to demonize. I don’t see the difference…
I didn’t explain myself well. Lower courts can consider whether new evidence would have been likely to change the outcome of the original trial. Higher courts only consider matters of law. Dershowitz knows this.
He also knows that the case didn’t involve a supposed dead victim strolling into court. It involved affidavits from several witnesses at the trial that they had lied. That’s not necessarily new evidence, as the jurors had the opportunity to appraise the witnesses during the trial. The “new” evidence isn’t necessarily new, and it doesn’t necessarily exculpate the convicted man. For the Supreme Court to open this new avenue for ALL cases, not just capital punishment cases, is to potentially double the cost and time for all defendents and prosecutors.
For the Supreme Court to open this new avenue for ALL cases, not just capital punishment cases, is to potentially double the cost and time for all defendents and prosecutors.
Ah, the “cost” and the “time”! Reminds me of Janet Reno’s explanation of why she “had” to order the massacre of the Branch Davidian children: because a protracted siege would have “cost too much.”