Scalia, Executions, and Actual Innocence

This morning Seth Jolly passed along a link to Mark Cuban’s blog post about Antonin Scalia’s dissent on the Supreme Court’s Troy Davis opinion that a lower court should allow evidence of Davis’ innocence to be brought forward.

Like many people, Cuban is shocked that it’s not illegal to execute innocent people in this country and, not wanting to tackle the very controversial question of whether we should even be executing guilty people, he proposes a constitutional amendment to protect the innocent (or perhaps to allow for evidence of possible innocence to be presented).

Cuban is also shocked that Scalia (and Clarence Thomas, who went along with Scalia as I believe he always does) would suggest that evidence of possible innocence doesn’t need to be considered. In an email exchange, Seth agreed that - at the very least - it’s surprising that Scalia would use the language he did, namely that innocence doesn’t really matter. Here’s the language:

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.

Scalia is a smart man and this is exactly the sort of argument you have to expect him to make. The reason that Scalia doesn’t mind dissenting here isn’t that he thinks no one will care that poor people (and especially poor black people) can’t even get a fair shake when they’re innocent - though many who already agree with him on most issues might not care. The reason is that the procedure is what matters to him…and to people who think he’s a great Supreme Court Justice.

Basically, if the proper procedures were followed and someone was found guilty and sentenced to death and had the sentences affirmed and re-affirmed by lower courts, then there’s no reason for the Supreme Court to step in later…even in a case where someone might actually be innocent.

Now I think this is ridiculous. I think it’s a no-brainer that actual innocence must trump procedure. But I’m not someone who reads the Constitution the way that Scalia does, nor am I someone who thinks the law is sacrosanct or that justice and the law are one and the same. I hold that constitutions and laws have been (and can be) wrong: morally wrong, not simply procedurally improper. So, I disagree with Scalia as always because, to my mind, decisions about justice have to involve ethics and can’t be entirely procedural. This dissent is just another example of why following proper procedure can lead one into a moral quagmire, one where the Scalia argues that the Supreme Court - the court of last resort for death row inmates - shouldn’t concern itself with possible innocence as long as lower courts have followed proper procedures to affirm guilt.