According to Scalia there’s nothing wrong with executing an innocent man.

I’d like to think that I have a very well developed sense of fair play and I’ve been told as much over the years. This partially explains why I have no problems with things like capital punishment in cases where the question of guilt is beyond doubt. The problem, of course, is that the question of guilt is rarely beyond doubt so in general I come across as opposed to the death penalty to most people. If there is any question that someone might be innocent of the crime they’re facing the death penalty for then I much prefer to go with life imprisonment because that can be reversed whereas death cannot. That seems a decent trade off to me.

Supreme Court Justice Scalia, however, has a different standard of what’s fair. Not only does he not have a problem with executing what could potentially be an innocent man, he goes as far as to argue that such a death would not be unconstitutional:

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.

In short, as far as Scalia is concerned, so long as you are convicted in a full and fair trial then your actual innocence is irrelevant to the question of whether you should be executed. The fact that the courts are intrinsically a human institution and thus are as fallible as the humans that constitute them apparently holds no sway in his mind.

This goes against every instinct of fair play I have. I am literally dumbfounded in the face of that kind of argument. I shouldn’t be as Scalia has said a lot of stupid things in the past that will ensure I celebrate the day he steps down from the Supreme Court, but even for the likes of him that argument is simply stunning.

5 thoughts on “According to Scalia there’s nothing wrong with executing an innocent man.

  1. If evidence is brought forward that proves a convicted person is actually innocent, then the trial that produced the conviction was not, by definition, ‘full and fair’.  It is really sad when I have a better grasp of basic logic than a Supreme Court justice.

  2. Everyone’s passing this one around, but it’s not really what he’s saying.

    If you read the entire dissent he’s basically saying that the courts don’t have standing to declare a person innocent after the fact because the court’s authority doesn’t extend to establishing guilt or innocence as long as there’s been a proper trial. As a dissent opinion it’s possible it’s even written as a legal road map for future legislature activity to remedy the dissent by providing explicit authority to the courts to remedy an occasion where guilt and innocence is established outside of the current court process. His dissent really isn’t about anything but the USSC’s standing in the case. Scalia is probably still a bastard, but in this case he’s not a bastard in the way he’s being portrayed as.

  3. Gruntled atheist, in this matter, “full and fair” only applies to the rules of law, meaning as long as the rules were followed, the trial was “full and fair.” And it makes me sick to be this close to Scalia, so, just… Get what I am saying.

    Legacy, if MisterMook is correct, then Scalia is referring to a sort of loophole, or better, a missing link in the process which would allow the court to say, “Well, this isn’t our area, so… Good luck to ya. Now watch me hit this golf ball which is bigger than my own brain.” See?

    The law is all about rules. Scalia, much as I would like to boot him off the island, may have done something good for future death cases, which was call out an idiotic lapse in coverage of those rules.

    Or, he may have just been being a Scalia size dick. Give us something to look at, MisterMook?

    I’m with you, Les. I support the death penalty, but not our system of applying it.

  4. What Scalia was saying is that there’s no specific authority resting with the courts for pardoning someone who has been convicted of a crime. Appeals courts? They’re not for pardoning people, they’re for revisiting cases where a court has determined that a lesser court may or may not have misapplied the law. You don’t win an appeals because you prove yourself innocent, you win appeals because the lower court judge didn’t apply the law correctly. The law already has specific remedies for where the law has been applied correctly and there’s still an issue of guilt or innocence in the whole “pardon” thing that Executives have, and, just as a guess, I’m thinking Scalia was probably thinking of the USSC stepping on those sorts of toes, given his history, in this case.

    But yeah, I think his dissenting opinion in this case was more of a heads up for legislatures, intentional or not: We need a better legal mechanism for bumping convicted criminals of a certain degree of certainty and penalty back into the courts. A priori arguments and rules established by USSC rulings aren’t the same as posteriori legal thought – it’s certainly an area of the law that should get some more consideration and discussion than a couple of old men wearing bathrobes in public.

    As for myself, I consider the death penalty in terms of what results it’s supposed to accomplish. I think our whole legal system is flawed by attempting to throw harsher and harsher penalties at people for lesser and lesser offenses, but if public hangings and floggings were what shook things up and make the streets safe I’m not sure I’d have a declarative problem with the penalties for results.

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