Official execution of an innocent man: Justice Scalia explains why it is not unconstitutional

Letters of Note:

In 1985, 24-year-old Kirk Bloodsworth was sentenced to death after being wrongly convicted of the rape, mutilation, and first-degree murder of a 9-year-old girl named Dawn Hamilton. He spent the next eight years in jail — two of which he spent on death row, awaiting execution — until, in 1993, he became the first such American inmate to be exonerated as a result of DNA profiling. In 2003, another DNA test linked the actual killer, Kimberly Shay Ruffner, to the murder; a crime to which he confessed a year later.

Between 2000 and 2009, the State of Texas executed 248 people, something Rick Perry has bragged about and GOP primary voters have cheered. Their names are here. While the vast majority were almost certainly guilty, scores of individuals sentenced to death by U.S. courts and subsequently placed on death row have been exonerated (some if them posthumously).

While most of the civilized world considers it unthinkable for a Democratic government to execute an innocent man, at least two justices of the U.S. Supreme Court — Scalia and Thomas — have written that there is nothing at all unconstitutional about it. Ian Millhiser:

Almost two decades ago, Troy Anthony Davis was convicted of murder and sentenced to die. Since then, seven of the witnesses against him have recanted their testimony, and some have even implicated Sylvester “Redd” Coles, a witness who testified that Davis was the shooter. In light of the very real evidence that Davis could be innocent of the crime that placed him on death row, the Supreme Court today invoked a rarely used procedure giving Davis an opportunity to challenge his conviction. Joined by Justice Clarence Thomas in dissent, however, Justice Antonin Scalia criticized his colleagues for thinking that mere innocence is grounds to overturn a conviction:

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.


About Guy N. Texas

Guy N. Texas is the pen name of a lawyer living in Dallas, who is now a liberal. He was once conservative, but this word has so morphed in meaning that he can no longer call himself that in good conscience. Guy has no political aspirations. He speaks only for himself.
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One Response to Official execution of an innocent man: Justice Scalia explains why it is not unconstitutional

  1. vance wittie says:

    It is tempting to jump all over Justice Thomas for this callous sounding statement. However, he is merely articulating the worldview of appellate attorneys and judges. The only reality is what is shown in the record. A person found guilty based on sufficient evidence in a fair trial is guilty regardless of what the metaphysical truth of the situation is. It has to be that way or there can never be any end to any case. The hard truth is that at some point process trumps justice and must be allowed to do so.

    Of course, it is the very limitations of the appellate process that provides one of the reasons why the death penalty should be abolished. If there is no constitutional right to a factually correct adjudication then we shouldn’t permit a punishment that is totally irrevocable

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