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Executing the Innocent

Supreme Court Justice Antonin Scalia seems to think that being innocent is not enough reason to not be executed, as long as the trial was “full and fair”. In the case in question, seven of the nine witnesses who identified Troy Anthony Davis as the man who shot police officer Allen MacPhail have changed their story, and several of them have even now implicated one of the remaining two witnesses.

But according to Scalia:

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.

Luckily, Scalia was in the minority. Was this what Obama was talking about when he said he wanted more empathy on the Supreme Court?



  1. Sammy wrote:

    I have read and re-read and then repeated several times to try and see if there could be any other interpretation of what Scalia said. I’ve searched to make sure this isn’t a partial quote or a quote taken out of context.

    Even my arch conservative co-worker had to admit it seemed as if he’s saying exactly what it appears he’s saying: Once a decision is made, it’s final and that’s that, regardless of the truth.

    It’s just this kind of rigid dogmatic thinking that I despise, whether it be leftist or right-wing.

    Thursday, August 20, 2009 at 11:06 am | Permalink
  2. dnono wrote:

    Alan Dershowitz (who I normally disagree with) has a piece on this Scalia statement in the Daily Beast

    Thursday, August 20, 2009 at 2:06 pm | Permalink
  3. Sammy wrote:

    The Dershowitz analogy of a “murdered” wife who ends up actually being found alive is brilliant, and possible, considering a body is necessary for a homocide conviction. I know the Supreme Court is not supposed to deal with what-ifs, but I do wonder who Scalia would answer this scenario.

    Thursday, August 20, 2009 at 4:03 pm | Permalink
  4. starluna wrote:

    This sort of extreme formalism is classic Scalia. The only time he isn’t such a stickler for procedure is when there is an outcome he prefers that strict adherence to his formalist principles doesn’t allow.

    Thursday, August 20, 2009 at 7:19 pm | Permalink
  5. think wrote:

    Sammy, in the instance where a ‘murdered’ wife is later found alive do you actually think a prosecutor’s office wouldn’t move sua sponte to vacate the conviction?

    Mr. Dershowitz’ example isn’t practical.

    Saturday, August 22, 2009 at 6:21 pm | Permalink
  6. starluna wrote:

    Think – perhaps the same prosecutor who would not provide DNA evidence so that a convicted rapist, using his own resources, could test it.

    See District Attorney’s Office v. Obsorne.

    Saturday, August 22, 2009 at 8:19 pm | Permalink
  7. Sammy wrote:

    Think – No, it may not be practical, but neither is the “I made my decision and it’s final no matter what the truth is” strict dogma of Mr. Scalia.

    Saturday, August 22, 2009 at 9:41 pm | Permalink
  8. Erin wrote:

    I don’t think his point is that innocent people should be executed. Rather, he is expressing a naive belief that the courts are an infallible method of getting at “truth”, and they should not be undermined by submitting to second-guessing after the fact. So I don’t find his remarks scary. I do, however, find them silly, as they fail the common sense test rather spectacularly. If prisoners can be released from jail based upon new evidence, surely they can be released from death row.

    Tuesday, August 25, 2009 at 11:51 am | Permalink