That's the title of an editorial in today's New York Times. LINK
We are relieved that the Supreme Court has ordered a lower court to reconsider the conviction of a Georgia death row inmate who may be innocent. In a shocking dissent, Justices Antonin Scalia and Clarence Thomas dismissed the idea that the courts have a duty to ensure that they are not putting an innocent man to death.
We hope that the Georgia court will see that justice is done. And that the other justices will make clear in future cases that the Constitution prohibits the execution of death row inmates who can produce convincing evidence that they are innocent.
And:
In their extraordinarily cold dissent, Justices Scalia and Thomas argued that the Supreme Court has never held that the Constitution prohibits executing an inmate who had a full and fair trial but is later able to convince a court that he is actually innocent. To the contrary, they argued that a federal law — the Antiterrorism and Effective Death Penalty Act of 1996 — prevents the courts from intervening on behalf of a death row inmate who claims to have proof of his own innocence.
This reading of the law is incorrect, as Justice John Paul Stevens ably explained in a separate opinion. It is also unconscionable. For the state to put a person to death is, in our opinion, always wrong. To do so in the face of clear evidence of innocence is barbaric.
There's more commentary on Justice Scalia's dissent at Daily Beast. Harvard Law prof Alan Dershowitz writes, "Scalia's Catholic Betrayal." Here's an excerpt from the beginning of his essay.
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. Unlike President Kennedy, who pledged to place his obligation to the Constitution above his commitment to his church, Scalia has insisted that in his view, “The choice for the judge who believes the death penalty to be immoral [according to the teachings of the Catholic Church] is resignation.”
University of Colorado at Boulder Law prof Paul Campos writes, "Scalia's Death Penalty Lunacy," also at Daily Beast.
In retrospect, the case against Davis, which wasn’t strong to begin with, has almost completely fallen apart. But Davis has a big problem: As an exasperated Scalia explained in his dissent from Monday’s extraordinarily unusual Supreme Court order directing a federal court to hold an evidentiary hearing on Davis’ claims, there’s nothing illegal about what has happened, and continues to happen, to Troy Davis. (The order is unusual because the court almost never entertains direct appeals by defendants in Davis’ situation.)
“This court,” Scalia pointed out, “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 court that he is ‘actually’ innocent.”
Scalia takes the position that, from a legal perspective, it no longer makes the slightest difference whether Davis is innocent of the murder he was convicted of committing, and for which, in all likelihood, he will be executed. If a defendant got a fair trial in state court, there’s nothing the federal court can do, Scalia argues, to reverse that verdict—even if new evidence comes to light that convinces the court to a moral certainty that the defendant is innocent.
Scalia represents an extreme example of a certain kind of judge that positively revels in coming to conclusions that are morally revolting but “legally” sound. Judges of this type like these sorts of cases because they demonstrate that law is a supposedly nonpolitical and intellectually rigorous practice, rather than a touchy-feely exercise in doing what strikes the judge as the right thing.
Earlier coverage of the Supreme Court order in the Troy Davis case begins with this post.
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