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Dershowitz Challenges Scalia on Death Penalty, Catholocism
Thursday, August 20th, 2009Over at The Daily Beast, celebrity legal brain Alan Dershowitz tosses a provocative salvo in the direction of U.S. Supreme Court Justice Antonin Scalia. Earlier this week, the Court ordered (PDF) a federal judge to hold an innocence hearing for Troy Davis, a Georgia man convicted of murder and sentenced to death. Since Davis’ conviction, a number of eyewitnesses have recanted their testimony, casting new doubt on Davis’ guilt.
Joined by Justice Clarence Thomas, Scalia dissented from the order (PDF) arguing that the U.S. Constitution guarantees only a fair trial. Once that requirement has been satisfied, actual innocence is irrelevant, even if you can prove it, even if you’re scheduled for execution.
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 made a similar argument in Herrera v. Collins in 1993 (again with Thomas joining him). Though Justice Sandra Day O’Connor wrote in a concurring opinion that a majority of the court held the view that the Constitution doesn’t permit the execution of an innocent person, that wasn’t the holding in the case, so the Court has never explicitly ruled one way or the other.
Dershowitz begins his challenge to Scalia with a hypothetical:
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.”
Putting the legal issues aside, Dershowitz then gets intriguingly personal. He points to a 2002 essay Scalia wrote for the journal First Things in which Scalia explains that if the Constitution ever contradicted his Catholic faith, he would have no choice but to resign from the Court. Despite the Church’s general opposition to the death penalty, Scalia explained, he could justify upholding death sentences because the Church doesn’t outright prohibit capital punishment, it merely discourages it.
That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign. And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty (most of them would not be elected); if American Catholics running for governor had to promise commutation of all death sentences (most of them would never reach the governor’s mansion); if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty; or if American Catholics were subject to recusal when called for jury duty in capital cases.”
But as Dershowitz points out, to say there’s nothing immoral about capital punishment in principle is quite a different proposition than to say there’s nothing immoral about upholding the execution of a factually innocent person.
…whatever the view of the church is on executing the guilty, surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution. How could he possibly consider that not immoral under Catholic teachings? If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?
I suspect Scalia’s answer would be that his only moral obligation as a judge is to ensure that a defendant has been given a fair trial with adequate constitutional protections. Once legal guilt has been established, the moral decision of whether or not to carry out the execution of someone with a strong factual innocence claim falls on the governor or pardon board. Any governor, for example, would of course immediately pardon the man convicted or murdering his still-living wife.
But given the pace of exonerations we’ve seen over the last decade, subjecting a strong innocence claim to the whims of an elected official or appointed pardon board doesn’t feel like a particularly satisfying answer. Derschowitz seems to have cornered Scalia here, though. I’m not sure what other response he could give.
Any Catholic scholars out there want to take a crack?
Not a Catholic scholar, but I can see the logic in Scalia’s position: One simply assumes that the law as written is the be-all-and-end-all.
Once one makes that assumption, the law becomes performance art. “Justice” becomes irrelevant.
Unfortunately, Scalia’s right, Alan D ain’t. The question, “well what if you can prove you’re innocent” puts the cart before the horse, at least untill there’s a case where the question of factual innocence has already been legally resolved before the court makes its ruling. Untill then, the real question these folks are asking is “how many opertunities does the defense have to prove his innocence” and according to the Constitution, the answer is 1, the trial.
People like Scalia have elevated the tool (law) above it’s purpose (justice). Now they clean, shine and fawn on their shiny tool despite the fact that it no longer of any use for it’s purpose.
Anybody who having the power to stop it allows the execution of a known innocent to go forth is guilty of murder.
Of course, whether or not somebody is innocent is unknowable. If it weren’t, we wouldn’t need trials. What folks like Dershowitz are doing is using the hypo of “if at point X in the process of executing someone, we discover irrefutable evidence of innocence” to bootstrap a right to a review anything he claims is new evidence at any point in the process.
Now maybe there should be more reviews of the evidence than just the trial, but that right’s hard to find in the constitution.
Scalia’s argument also rests on the notion that the person has received a fair trial. As anyone who reads this blog regularly should know, while some of these exoneration cases rest solely on previously-unavailable DNA evidence, many of the original trials were not fair trials. In the case of Troy Davis, if the trial rested on eyewitnesses whose testimony was coached, manipulated, or suggested by police and they later come out and recant, no sane person could argue that he had his fair day in court.
I couldn’t have said it better. If a person comes before Scalia and he has the power to prevent this person from being killed, he has a Catholic obligation to do so (regardless of if the person is innocent or guilty). As far as I’m concerned (after 12 years of Catholic School), killing is always wrong unless it is in self defense.
There are some out there who will argue that there is such a thing as a justified killing or just wars, but I (and the priests who ran my school) never bought that idea. It comes from the antiquated “need” to punish those who have wronged us, something that Jesus and the New Testament CLEARLY oppose (they would have you turn the other cheek).
Well, as a lapsed Catholic (aren’t we all) I would say the idea of the death penalty has its lineage in hammurabi’s code and the old testament, and if you believe in JC then you accept that he is the fulfillment and redemption of the Old Testament which mean you would be against killing of any human life. But the Constitution is a secular document so I can see wear scalia’s coming from, but i think he weasels himself out of his faith/job conflict a little too conveniently.
MDGuy — that is a great point, and perhaps the best argument against the death penalty. That and giving the state the power to end life.
What’s amusing about all of this is that Scalia has, for decades, made a big noise about how he’s a minimalist, and originalist, and so forth, saying that we should be unafraid of purely applied law.
And yeeeeeeeetttt, he hasn’t in any significant case decided on the basis of the law against something that we know he disagrees with. It’s magic! The minimalist reasoning of the law always = what Scalia’s personal political and moral philosophies are! Wow!
The absolutely perfect example is Bush v. Gore. Scalia had spent many years and many buckets of ink saying (a) that it wasn’t SCOTUS’ business to leap into frays where state courts (a1) hadn’t done wrong in a manner justifying federal intervention, or (a2) where the feds disagreed with the outcome of the state courts and may have decided it differently, and (b) that most equal protection cases were BS on legs. Along comes Bush v. Gore, and Scalia violates all of those principles to come to the decision that he wanted, along with a neener-neener addition that nobody else other than George Bush got those rights in future. (Since when does SCOTUS issue a decision with a warranty sticker that says it isn’t precedent???)
I remember being astounded at one thing about Bush v Gore: recusal. O’Conner was on public record as saying that she wanted to retire, but couldn’t if a Democrat was elected to choose her replacement. Both Scalia and Thomas had family members high in the Bush campaign who would probably land jobs in the new administration. None of the three recused themselves. That famous poisoned 5-4 decision would have been 4-2 if they had even the tiniest smidgen of ethics.
Look, Scalia is what he is: a narrow-minded, ultra-right-wing catholic and whore for established right-wing power. He’s not libertarian, he’s not anything but an authoritarian conservative who is a reliable vote for everything that the GOP believes in. He’s not a judge, he’s an advocate who happens to have judicial authority to always decide in his own side’s favour.
I agree Scalia’s conclusions are abhorrent, but there *are* good reasons for limiting the scope of appellate courts to questions of law. Appeals courts have to have some sort of reasoning to stop every appeal from turning into a de-facto bench trial. The mess isn’t helped by the atrophy of the pardon process, which was intended to deal with such matters. Perhaps some kind of special court for factual claims might be a reasonable compromise, but I’m not really sure how you square the circle of stopping injustice while respecting the results of a fair (if indeed it was) trial.
With specific regard to capital punishment, the answer is much easier: the state can’t be trusted to sort the innocent from the guilty with the 100% accuracy necessary for executions to be morally defensible, even if death is a theoretically just punishment (and I certainly don’t rule out that it is in some circumstances).
My guess is Scalia would do what most people who claim religious faith while behaving in ugly ways contrary to that same faith do; cherry-pick out of their holy book passages that support what they want to do anyway, and ignore the passages that don’t support their world view.
You know, like that obscure biblical line “Thou shalt not kill.”
You don’t have to “find” a right in the Constitution in order to possess that right. The Constitution is not an exhaustive list of the rights retained by the people. Read the Ninth and Tenth Amendments sometime, as well as Madison’s original objections to the inclusion of a Bill of Rights.
Anyway, it ought to be self-evident that if someone facing execution is capable of proving their innocence, they ought to be allowed to do so, regardless of where they are in the criminal justice system, right?
I’m not a Catholic scholar, but I am a lawyer who is Catholic. I also have what I might politely call “issues” with both Scalia and Dershowitz…
I think Dershowitz is missing the point a bit, unfortunately. To paraphrase what another justice said in a speech, just because something is dumb or stupid doesn’t mean it’s unconstitutional. I’d extend that to being immoral (i.e. just because something is immoral doesn’t mean it’s unconstitutional – slavery was constitutional!). So Scalia’s right, and much as I excoriate him in other circumstances, one shouldn’t shoot the messenger for raising an unpleasant truth: the Constitution does not prohibit everything bad/evil/unwise/stupid, including the execution of the factually innocent (who have had constitutionally fair trials).
There is a tendency for people to want the constitution to stop anything “bad” or “stupid” and that is NOT what it does. I try not to fall into that trap, of mistaking that what I know/believe to be wrong or evil is constitutionally impermissible merely because I don’t like it.
Now, I do think that an argument could be made that executing a factually innocent (but legally guilty) person would be “cruel and unusual” but that’s another argument and I don’t think was considered here (technically, I think the arguments loses because if you execute a factually innocent person for murder the issue is whether execution for murder is cruel and unusual, since they were legally guilty of and convicted of murder).
The constitution permits many bad/stupid/evil things, and in some instances may prohibit good/wise/smart things (no obvious example springs to mind, for some it would be gun control but that’s not an uncontroversial example especially on a site like this!).
As an aside, it’s possible for someone to think e.g. Brown vs. BOE was wrongly decided as a matter of constitutional law, that segregation was permissible, but nonetheless be happy with the “wrong” decision as being “right” in a more important sense. That’s history, however, and on a going-forward basis, to appoint justices who substitute their own sense of right and wrong for what the constitution says/permits strikes me as very dangerous and very wrong.
it ought to be self-evident that if someone facing execution is capable of proving their innocence, they ought to be allowed to do so, regardless of where they are in the criminal justice system, right?
right!
When you spell it out so clearly, it almost sounds so obvious it’s dumb.
Hey, guys, don’t complain about the lack of clean air because you stopped breathing. Don’t run around complaining about the heat while setting yourself on fire. Also, please don’t execute innocent people under the cover of the laaaawwww.
From a Catholic perspective, in Professor Dershowitz’s hypo, Justice Scalia would be in an analogous position to Pontias Pilate. Is there an official Catholic teaching on the moral status of Pilate’s decision? Even as a Catholic, I don’t know, although I have a guess.
“how many opertunities does the defense have to prove his innocence” and according to the Constitution, the answer is 1, the trial.
This is simply not factually accurate, inside or outside of the context of this discussion.
Anyway, Radley, I don’t think even your atttempt to come up with an argument for Scalia works, because he should not be allowed to say his actions don’t violate his faith simply because someone else might (or even most certainly will) bring about a just, catholic-consistent result *after* Scalia is done *not* following his faith. That just doesn’t float.
So really he’d probably have to hide behind the idea that in this case, we really don’t know if this person is guilty or innocent and flawed IDs are just as possible as flawed recantations.
That might make a little bit of sense, but clearly what Alan D. is calling him on is Scalia’s professed theory or rule which is that even if a person could convince the Court (or Scalia) that he was actually innocent then the Court and Antonin would be under no obligation to release him. Which is Catholically problematic.
Of course Scalia’s response at that point would be, in additon to what i said above, stating that he is just indicating what the Constiuttion says, and not what he would do before resigning. Luckily (he would continue) in this case, since actual innocence was not proven to his satisfaction he was not confronted with such a case which would test his faith, and he was able to vote as he did, and to state – for theoretical and abstract purposes – what the Constitution says.
No, it’s not self-evident, because your logic is circular. You say that your proposition that anyone ought to be allowed to prove their innocence is predicated on their ability to do so, but of course the only way to determine if they’re capable of proving their innocence is to give them the opertunity to do so.
So what you’re saying is that the Constitution guaranties anyone the right to attempt to prove their innocence at any point in the process, which is just wrong.
Putting an innocent person in jail for a week seems to me to be an incredibly horrible, unacceptable thing to have happen. SO executing an innocent person (or even a person with any reasonable doubt about his guilt) is just beyond the pale. Whether or not it is constitutional, any judge with the power to do so ought to feel a moral obligation to stop such an execution. Following the law and the constitution is great up to a point, but there is a reason why we need actual human beings to make judgments. The law can be just plain wrong sometimes.
Just a totally broken system.
When a leader on the Supreme Court is so lost in his own ideological asshole that he can’t see that while he might not have the power to free a man because of his innocence, he does have the power to free a man who wasn’t given fair opportunity to defend himself. Anyone able to subsequently prove their innocence was ipso facto not given that opportunity, and he is thereby under moral and legal obligation to exercise his power.
I do not understand why any other argument needs to be made or how anyone can torture logic to such an extent as to refute that argument.
I should mention I am otherwise a very open minded person. But when you insinuate that the founders of this country left such a glaring and obvious hole in their founding documents, when they were so obviously intent on guaranteeing the rights of the individual against the abuse of governmental authority, you piss me off mightily.
“…actual innocence is irrelevant…”
Minting new anarchists ever day.
A second comment (about 8 went up while I was typing my first one!) that deals a bit more with theology and ontology.
Still reading?
There is a Catholic concept called remote material cooperation with evil. To oversimplify, an example that was given by a priest was someone working as a pharmacist at a drug store or something, the store sells contraceptives etc. but that is not its primary purpose and more generally one is acting to help people so it’s not wrong to work in the pharmacy despite some of what it sells. Another example, if one votes for someone because they are pro-choice that’s wrong. If one votes for someone who is pro-choice because big picture (economy, jobs, issues of war and peace) you think they’re the “best” person, that’s not wrong. I mean, otherwise you’d have the ridiculous situation that voting for someone who e.g. favoured nuclear war with China to deal with the trade deficit but who was against abortion would be more moral than voting for someone who agreed with Catholic teaching in every way except on abortion. Working in an abortion clinic, by contrast, would be a problem.
I think similarly for e.g. a lawyer or judge, there may be some specific ills but so long as the system is not entirely evil (e.g. nazi “justice”) one can generally participate in it without a moral problem (that’s also been considered in any number of analyses from an ethical rather than moral approach to the law). I can be a lawyer and could be a judge despite the fact that the legal system sometimes results in wrongful convictions etc.
A couple of other thoughts: first, except on some very few (primarily dogmatic “inerrant”) issues of faith and morals, a “good” Catholic can disagree with the church, with the Pope, etc. Indeed, there is an obligation to follow one’s conscience (no “I was just following orders” excuse). So I know “good” Catholics including some priests who are pacifists, and by contrast those who believe that Afghanistan, at least, was a just war (at least as it started, in its execution is a more complicated issue). The official (from the catechism) Catholic teaching is that there IS such a thing as a “just war” under certain circumstances.
To pick on Nando, if someone is killing your child are you not allowed to use deadly force because it’s not self-defence? That’s an example that’s come up in discussions with a moral theologian about some consequences of pacifism. What if they’re attacking a stranger (the Good Samaritan shows up earlier…) is force which may be deadly justified? I’ve had some discussion with pacifists over the role of police and using military force to e.g. prevent genocide, and have to say that while impressed with the force of their personal convictions and their personal “goodness” and efficacy in some situations, I think that in other situations their pacifism would be tantamount to passively washing their hands and allowing evil to operate unchecked.
Wouldn’t a trial by which an innocent person is convicted be inherently unfair?
(Just sayin’…)
But when you insinuate that the founders of this country left such a glaring and obvious hole in their founding documents, when they were so obviously intent on guaranteeing the rights of the individual against the abuse of governmental authority, you piss me off mightily.
Slavery was a pretty big hole. Giving the non-voting slaves 3/5 representation was an acknowledgement of this hole. To justify the argument, Jefferson wrote that black people should be free, but weren’t smart enough to really take care of themselves.
Jefferson is one of my heroes for many reasons, but let’s not pretend he was a saint.
Just because it’s in the Document, doesn’t make it right. Even if Scalia is correct about the Law, he should have the man-nuts to admit the travesty of executing an innocent person.
My problem with Scalia’s opinion is that the court system, in theory, is supposed to weed out the factually innocent. If somebody can prove himself factually innocent, post conviction, logically speaking, the defendant has just proven that the court system failed. Therefore, the trial was flawed, as it did not do what it was supposed to do, and thus, reversal would be warranted, because the defendant did not get a fair trial. A fair trial would have used the correct evidence. In order to convict a factually innocent person, something had to have gone wrong in the system itself, whether it be false testimony, mistaken testimony or the failure to present DNA evidence.
Scalia is taking out the position that the court system is never wrong. Therefore, somebody does not have the right to prove that it was wrong, because the court system is never wrong. This is circular reasoning, which is, sadly, all too common in Scalia’s approach to law. He starts out with the assumption that, if the trial is conducted according to procedure, the trial was “fair”. And if it was “fair” then it could not have convicted a guilty verdict. Scalia’s mistake is assuming that a trial conducted according to procedure is fair, and that nobody ever lies on the stand, no samples ever get mixed up, and people don’t misremember.
This is not surprising, given his belief in new professionalism.
I would almost call him an optimist, if it weren’t for the fact that he also believes torture isn’t cruel and unusual punishment (including suspending a prisoner from a pipe and whipping him), the government has the power to detain indefinitely, and our schools are prisons. I actually believe he’s a sadist. Which would make sense coughopusdeicough.
Oh, and as somebody above stated, a political hack. It really is odd how it’s only things he personally disagrees with that are ripe for “judicial activism”.
I believe the reason the courts have been placed under such moral pressure to deal with actual innocence claims is that the executive branch in this country has totally abrogated their delegated responsibility of issuing pardons and commutations. It personally disgusts that me that a governor could fear losing votes by choosing to pardon a plausibly innocent person or by choosing not to commute the sentence of a guilty individual who had changed in prison. (e.g. Stanley “Tookie” Williams or Karla Fay Tucker)
We empower our executive to show mercy, and then elect the merciless to public office. Have mercy on us.
ktc2 “People like Scalia have elevated the tool (law) above it’s purpose (justice). Now they clean, shine and fawn on their shiny tool despite the fact that it no longer of any use for it’s purpose.”
I know its gotten a lot of thumbs up but I’ll say it anyway-that’s brillinat ktc2!
THE SIMPLE PROOF THAT SCALIA IS WRONG FROM A CONSTITUTIONAL STANDPOINT:
The Supreme Court just said so two days ago.
And since The Supreme Court is the final arbiter on the constitution, it follows that Scalia’s dissenting view is incorrect. How about that logic, Scalia? Sounds like something you might come up with.
Pontius Pilate famously recognized that Jesus was being set up, but chose to follow the law and political expedience. At the very least, he chose to wash his hands of the whole affair. Scalia doesn’t even have the decency to do this.
I agree that the LAW may say one thing, JUSTICE another. But if Scalia is happy to go on record as stating that he would resign if there was a conflict, then he needs to man up and take on Dershowitz.
Omar: Good point. But they chose to keep slavery out of the constitution entirely, purposefully. It takes huge balls to argue from a originalist perspective that innocent people can be executed. That that somehow comports with his sense of fairness is mind boggling. I don’t understand why anyone would even want to think that way..sorry drifting off.
Scalia lost me with “fair trial”.
As to his Catholicism, so what? It’s a religion. It’s not based on any fact, nor recognized by law in the US. He can say it means whatever he wants.
It seems to me that this highlights the difference in the way lawyers and judges see the law vs the way the rest of us think of “justice”.
For lawyers and judges it is “did we follow all the forms correctly?”.
For everybody else it is “right vs wrong” and did “right” win.
Won’t somebody please think of the Bar Association?
;)
@#28 | Mark Robbins
I don’t understand why anyone would even want to think that way.
Cognitive dissonance.
Scalia is making excuses – long technical excuses for why things are the way they are and why he shouldn’t have to be responsible for making the Change.
The people with power will always find reasons why they need to keep power.
And how do you determine who is right and wrong? If it isn’t by following the process, then it’s chaos.
For the non-lawyers, this is part of the debate between “substantial” vs “procedural” rights.
Scalia is arguing from the point of “procedural due process:” is there a mechanism in place that ensures that innocent people are not convicted? In the abstract, this makes a lot of sense because its just not possible to delve into the metaphysics of right and wrong for each case, etc. Also, making law on the fly is problematic because it creates all sorts of problems. Scalia is concerned, rightly so, about too many judges overturning centuries of law to get at things they think are right in one instance only to have the unintended consequences make things worse. Fr’instance, SCOTUS killed Jim Crow laws, but the affirmative action laws harm people like New Haven firefighter Frank Ricci.
The PROBLEM, however, is that Scalia automatically assume that the all the “procedural due process” case law results in a substantive due process: a fair and just result. It overlooks the well-documented problems of prosecutorial misconduct, testilying, police planting evidence, etc etc, that are rife in the system. If the procedures are so great, how come it results in a so many bad outcomes.
the criminal justice process is a system. Like all systems, garbage in = garbage out. The blame here is on the legislature and the executive, not the courts.
“And how do you determine who is right and wrong? If it isn’t by following the process, then it’s chaos.”
I agree that there must be a process. It is only that in the real world you get exceptions to rules all the time. Just because you think you followed the rule or recipe does not mean you always get the correct result.
If you thought you were using sugar and ended up using salt I bet your cake doesn’t taste the way it is supposed to and saying well I followed the recipe doesn’t make the cake taste better.
If you have an obvious signal such as the cake tasting wrong or the supposedly dead wife showing up, then obviously something went wrong.
Scalia would have us eat the salty cake and like it.
Laws and Catholic teachings are simply ink on paper and written by humans, the difference being the former is sometimes claimed to be divinely inspired, and the latter is almost all claimed to be divinely inspired. The problem with people is searching for some combination of characters (aka laws, statutes, bible passages, etc.) that one claims “gives them the authority” or “morally absolves” them of making a decision or ordering an action, all in the name of assuaging the guilt they feel in their heart and know in their mind. It’s like the little voice that says “what you are doing is wrong” but one covers their ears and yells “NONONONO LALALALALA”.
What ever happened to common sense and doing what we all know to be right, regardless of what some phrase says that was written by a human? Murder is wrong, no matter what your beliefs are, and The State doesn’t have the moral authority to murder people. It’s even more apparent when The State makes mistakes and has a legal system that is corrupt beyond belief by the active parties (cops/prosecutors/judges).
America is at that awkward stage, it’s too late to work within the system, and it’s too early to shoot the bastards.
In Christmas of 1998, Pope John Paul the Second asked America to cease using the death penalty, calling it “both cruel and unnecessary.” He had the hope that a new Millennium would see the end to the practice. So, I call bunko on the idea that it was just “discouraged.”
http://www.vatican.va/roman_curia/secretariat_state/documents/rc_seg-st_doc_20010621_death-penalty_en.html
I agree with seeker6079, particularly in his/her use of Bush v. Gore as the definitive proof that Scalia is as results-oriented as the judges he condemns.
The essential problem with Scalia (and Thomas, and Roberts, and Alito – all Catholics, by the way), is that he views the protection of the process as the goal, and not the quality of the results which that process produces.
Most non-lawyers would be astonished at the number of procedural rights we take for granted now, but which were Constitutionally protected only because thoughtful judges and justices saw that the criminal courts could no longer operate under medieval rules which Scalia would uphold irrespective of their effect on outcomes.
One of my favorite examples is the right to testify in one’s own defense. Seems simple enough, and certainly it must be listed somewhere in the Bill of Rights, right? Wrong. Up until 1961, in Georgia a defendant could make an unsworn statement, but he or she was deemed incompetent to provide sworn testimony at his or her own trial because of obvious bias. Ferguson was charged with murder, and his attorney was denied the right to examine him when he made his unsworn statement.
The Supreme Court struck down that rule in Ferguson v. Georgia, in an opinion written by Justice Brennan which Scalia would openly deride if he had been on the Court. (Among other sins, Brennan surveyed the development of the common law and concluded that it was the consensus of virtually the entire English-speaking world – including foreign countries! – that defendants were competent to testify.)
Scalia, quite simply, does not care at all about the results, just that the procedures adopted ages ago be adhered to scrupulously. (At times, this benefits defendants, as in decisions regarding the Confrontation Clause; typically, this approach does not.)
I think his jurisprudence reflects his Catholic upbringing, and the connection between the two explains why Bush II chose two Catholics for the bench, too. Then again, I’m a Presbyterian.
Nino, the poor little hack.
He wants us to read his sage wisdom about execution and ignore the life, liberty and happiness action spelled out in clear text.
Darn, as many times as I’ve read Founder’s documents, very few passages authorize the Republic to execute anyone.
Must be them damned activist Supreme Court justices who’ve authorized federal execution for such a wide range of crimes, including “drug kingpins”.
What a bloodthirsty, brain dead bunch of Maroons.
TAO
I recognize the need for a fair process with checks on abuses. I agree that, without a recognizable system, the result would be chaos and a complete lack of justice.
However, if it becomes obvious that the process has led to an error and there is no systemic way to correct that error, then the system is flawed. The failure of the executive to exercise the clemency powers does not remove that error, it only compounds it.
I am not sure of the various forms of clemency, but in many cases accepting clemency involves a tacit admission of guilt – which someone who is completely innocent may be reluctant to accept.
(Although I remember Dreyfus’ famous remark when some of his supporters urged him to refuse a pardon for exactly that reason: “Je n’etait jamais un Dreyfussard.”)
Then Aresen is right and moreover Scalia shoud quit.
Or how about this one:
Technological advancement. Years ago test didn’t exist to determine who the semen, blood, etc. belonged too. Now we have it. ShelbyC is innocent, but since his (her>) trial is already over, lets kill him anyways.
If this is true, the sytem is fundamentally broken. Executions, in some cases at least, are murder. Its pretty much inescapable logic.
I think the real problem here is that Scalia’s view depends on a criminal justice system in which all parties are truly dedicated to finding the truth and seeing justice done. In a world where everyone did their level best to find the right guy, present real evidence, and sees every defendant as innocent until proven guilty.
Unfortunately, that is not the real world. The real world has cops that perjure themselves on the stand and manufacture evidence.
Scientific analysis that is flawed and filled with false positives or non-definitive results which the court accepts as absolute fact.
DA’s that prosecute people for the news coverage.
A system that tries to deny people their day in court by threatening to try them on more severe charges if they don’t plead guilty to lesser charges.
Judges that give out different sentences based on race.
Judges that give drunken, woman beating cops probation saying “If I thought putting him in jail would stop other people from getting drunk and beating women, then I would. But it won’t” like that was somehow part of their job.
And courts that not only fail to inform juries about the fact that they absolutely do get to judge the LAW as well as the accused through jury nullification, but in fact they lie and tell juries that they have to convict, even if they disagree with the law.
Our system could survive its flaws. It cannot survive the people to whom that system is entrusted. Given the fact that the people in the criminal justice system are as dirty as anyone, absolutely all benefit of the doubt should go to the accused, not to the system.
I disagree. I’ve been reading his opinions on criminal justice matters for many years, and I don’t discern in them any belief that the participants in the justice system desire to find truth or do justice. (Moreover, it would be manifestly erroneous to think that defense counsel had that goal in the majority of cases.)
I agree with Scalia. The court administers a fair trial. If the trial was fair, there are still avenues to deal with those cases that slip through the cracks. There’s a reason we separated judges from questions of fact.
Besides, if witness testimony can be recanted after the trial, and this proves innocence, is this really the burden we want to place on all of our witnesses? The lifelong threat of witness intimidation?
Presumably, the death penalty could have been outlawed in the original Constitution’s drafting. Given that the death penalty was administered when the Eighth Amendment was drafted, you have a hard time convincing me that the system does not possess that power, impliedly so.
errr …. “cruel and unusual punishment”?
Is there anything vague about that?
This is really simple. Would he be willing to go to St. Peter with his case? I have a feeling that legalese and hair-splitting don’t go over well at the pearly gates.
It’s his soul… and I am sure Satan is working hard to get him in the line up down south anyway.
What would be really excellent would be the Pope to smite him with a letter of threat of excommunication and rebuttal of his position. It would be pretty hard to argue against that.
Any reasonable person would say that the purpose of the justice system is to prosecute the “guilty” and to protect the “innocent”. Any refusal of the rights of the demonstrably innocent to regain complete freedom is only based on the practicality of the process. It is clear that there are many practical ways of improving the process such that fair trials occur much more frequently.
The point about Death Penalty is not whether the Catholic Church approves it or not. The point is that for Catholics forgiveness is a big value: that´s why John Paul II met with the guy that almost killed him. If you execute a guy he
simply can´t *repent*.
I do agree that Catholics shouldn´t support abortion, but I also think that they shouldn´t support capital punishment and unjust wars.
And unless there is something that makes torture acceptable under Judaism Dershowitz should keep his mouth shut.
Andre, as a former Catholic, I believe that a true Catholic supports capital punishment just like a just war — for the purpose of preventing the harm of other people, innocent or not. For example, if locking a particularly brutal killer up in a prison did not prevent this person from killing again and there were no other feasible options, then capital punishment is completely acceptable to prevent the further unprovoked loss of life.
In principle, I do not oppose the death penalty. If someone willfully kills another person for a purpose other than the need to do so in self-defense, then they have forfeited their right to live.
However, there are several problems in practice, not the least of which is prosecutorial misconduct.
The most important problem is establishing guilt absolutely – not “beyond reasonable doubt” – absolutely. If there is any degree of doubt, even an unreasonable one, then the possibilty exists of executing an innocent person. That is what I cannot accept about the death penalty and why I oppose it in practice.
In this instance, Scalia is absolutely correct. A federal court has just intruded in a state matter by calling it an “emergency”. They don’t know if Davis is guilty or not and it’s not their freakin job to decide those kinds of issues. The only question they should have ever considered is whether or not he had a “fair” trial and that wasn’t even part of the argument.
The Davis case has gone through the legal system, it’s now up to the people of Georgia to decide his fate. A federal court is trying to squash the rights of millions of voting residents and people around here are cheering it on.
This case exemplifies the problem I have with the death penalty. One the one hand Davis is by no means “innocent”, the states argument is he killed the cop because he thought the cop recognized him from a shooting he committed at an earlier party. On the other hand, on a cop killing case, I’m betting the prosecution did everything it could to get a conviction and I wouldn’t put it past many prosecutors to push the limits of their ethical boundaries. We’ve all seen it happen with Frederick and Maye.
The only thing I do know is, if the courts have decided he got a fair trial then it’s up to the people of georgia to get it sorted out not the feds under the guise of an “emergency”.
Scalia mentions a “free trial”. When seven of nine eyewitnesses recant their testimony it leads one to believe that the trial was not, in any sense, “free”. I really don’t give a shit about his Catholicism on this point.
Yeah, in place of “free” put in the word “fair”. Yeeouch.
“A federal court is trying to squash the rights of millions of voting residents and people around here are cheering it on.”
So… if millions of voting residents want to kill an innocent man, it’s ok?
Under Georgia law, he is not innocent. Let’s be upfront: something bad is happening, and some libertarians now want to toss out federalism. how does that make them any better than liberals who want to cram (insert dream policy here) down the throats of the states?
Really? What was unfair about it, then?
#51: Forgiveness is a virtue, when it is exercised by the person who was wronged. It is not virtuous to “forgive” someone for wrong done to a third party (one may pass on the wronged party’s statement of forgiveness, but in that case it is the wronged party, not the messenger, who is forgiving).
#3 and others: It is not the job of an appeals-court judge to examine evidence and judge its credibility. Very seldom will there be indisputable evidence of anything. Even if a woman claiming to be a “murder victim” shows up in court, one won’t know without judging credibility whether the person was who she claims to be. Something may seem to be “slam dunk” proof of innocence, but that doesn’t always mean it is. There’s a fine line between protecting the innocent and allowing the guilty to game the system; if defendants are entitled to a stay any time they introduce new evidence, there’s a possibility of defendants perpetually gaming the system by disclosing new bits of evidence little by little.
BTW, out of curiosity, suppose the following were established facts: (1) Mr. John Doe killed a woman who was identified as his wife Jane; (2) Mr. Doe was prosecuted for the murder of Mrs. Jane Doe, convicted, and sentenced to death; (3) it was subsequently established that Mrs. Jane Doe was in fact still alive, and the decedent (whom Mr. Doe murdered) was in fact Alice Smith. Should Mr. Doe be executed?
If their testimony was perjured any verdict based upon it would seem to be invalidated, IMO. I’m far from an expert about this sort of thing, but I really don’t think “federalism” requires letting states censor the media, ban guns — or execute innocent people.
“how many opertunities does the defense have to prove his innocence” and according to the Constitution, the answer is 1, the trial.
Are you kidding, this is the second comment, which I’d expect people to read, and the only response to it is at #15 which misses the real core error in that statement.
A defendant at trial is presumed innocent, they don’t have to prove anything, it is the duty of the state to prove beyond a reasonable doubt that the defendant committed a crime.
When people obviously concerned enough about civil liberties to read this blog, including a couple of lawyers, forget the basic right to presumption of innocence, is it any wonder a bunch of mindless drones on a jury will follow the procecutor like a dog after a meatball?
Now, if Scalia were writing honestly, that would read:
Speaking only for myself, I call myself a federalist, but I’ve never thought states should have the power to violate basic civil rights. Go at it through the 14th Amendment, or through the Privileges or Immunities Clause, but yeah, if Mississippi decided to to ban interracial marriage or legalize lynching tomorrow, I’d be fine with the federal government intervening, and I wouldn’t feel I’ve violated my federalist principles. Likewise if a state isn’t willing to institute adequate safeguards to protect against executing an innocent person.
Radley: “…but yeah, if Mississippi decided to to ban interracial marriage or legalize lynching tomorrow, I’d be fine with the federal government intervening…”
Me to. One other thing: How ’bout if Mississippi decides to bring Dr. Hayne back, we send in the US Marshals’ Special Operations Unit. That would look a bit like justice to me ;)
As an underling,before he was a SCOTUS, Scalia lost every Supreme Court case he argued.
Matthew 12 addresses people like Scalia who elevate the letter of the law above the spirit of the law to deny people the ability to do good:
Anyone doubt that Scalia would have ruled against Jesus based on procedure?
a trial could not have been fair if an innocent person was executed.
I think Scalia may be right.
And that, in my opinion, is enough reason for a moral people to abolish the death penalty (if they didn’t already have enough reasons).
[...] a comment on a Radley Balko post about Troy Davis: …the state can’t be trusted to sort the [...]
I want to throw out Federalism and replace it with Anarchy. Think of it as a free market in government.
I have no use for the Constitution. It doesn’t have anything to do with morality or right and wrong.
Noting that I don’t care about the Constitution probably means little to most of you here. Your problem is that very few others–especially those in government–care about it, either. It’s useless.
I was born in May of 1968. I would say it is knowable that I am innocent of perpetrating the Holocaust. :-P
I think the majority of citizens hopes the courts are seeking justice not procedure. It’s comforting to know that the Supreme Court in this decision did just that. So it worked correctly. Scalia was in the very small minority, he was seeking procedure. Scalia is like the guy who believes he’s going to heaven because he goes to church every Sunday and follows all the rules. But maybe, just maybe you have to break a few rules to get to heaven, or at least ignore a few.
We citizens of the UnUnitedSecurityStatesofTerror (UUSST) are stuck with Big Tony for life? There’s got to be some recourse available when an “Annointed One” becomes ….unfit for everything freedom stands for.
No, Scalia is like one of those churchgoers who supports the full plank of moral laws in the church while ignoring the 1st and 2nd laws: love the Lord and love your neighbor as yourself.
Wouldn’t people lying in your trial make it an unfair trial? And wouldn’t putting to death someone who can have their innocence proved be ‘crual and unusual’ punishment?
“Of course, whether or not somebody is innocent is unknowable.”
I bow only in the direction of the known, the unknown, and the knowable. I concede that there are things that are unknowable to me now, and that there will be things unknowable to me until the day I die. I refuse to concede that I should allow an innocent person to die because his innocence is “unknowable”.
It is better to allow the guilty to go free than to punish the innocent. The guilty can be caught and punished at a later date, but the innocent cannot be unpunished.
“BTW, out of curiosity, suppose the following were established facts: (1) Mr. John Doe killed a woman who was identified as his wife Jane; (2) Mr. Doe was prosecuted for the murder of Mrs. Jane Doe, convicted, and sentenced to death; (3) it was subsequently established that Mrs. Jane Doe was in fact still alive, and the decedent (whom Mr. Doe murdered) was in fact Alice Smith. Should Mr. Doe be executed?”
Not for the murder of Jane Doe. He didn’t kill her, the facts above just established that. Should he be executed for the murder of Alice Smith? Maybe, If his new trial for this crime finds him guilty of it (as you imply that it will). Is he gaming the system by pointing out that while he is a murderer, he didn’t kill the person he is accused of killing? Yes, he is, and so what. It is the prosecution’s job to get it right, and he is innocent until proven guilty. In any event, what if he didn’t kill anyone? Should he then be executed because he was found legally guilty? What if facts one and two are correct, but there is no decedent? What if twelve people decide that he should be punished for a crime he quite provably didn’t commit? Jesus H. Christ in a chariot-driven sidecar, how many bullshit legalisms do the “good guys” get to hide behind in the name of defending the law while complaining that the “bad guys” are the ones “gaming the system”? Which ones are the “good guys” in this situation? If any judge knowingly allows an innocent person to be executed and hides behind the law while doing so, well, its been said before and I’ll say it again, that judge is a murderer, and a coward to boot.
Assuming you weren’t being sarcastic….
How about 7 people didn’t report the truth at the time of the trial?
is it not possible that they aren’t telling the truth now?
No?
M in Harlem says
I have been told that: at the time the Eighth Amendment was passed, the term “cruel and unusual punishment” referred to punishments dreamed up by judges that were in no way part of the law. The law specified prison or a fine, and the judge dreams up having the guy wear girl clothes and allow people to throw mud pies at him.
Sure, but then that raises the point…how do you tell? If you can’t then you can’t really call any trial fair…ever. Thus, the argument resting on a fair trial rests on a false premise.
So try again. Really, this isn’t that hard to figure out. A little bit of basic logic and a rudimentary understanding of probability should get you this far.
What motivation would they have to admit perjury for the fun of it?
TAO
I consider you a friend, on this forum and elsewhere, but it seems to me that your arguments are tending towards a contention that the formalitiesof a trial are more important than the outcome.
Due process is certainly important in preventing injustice, but if a there is strong reason to believe that an injustice has been committed while all the forms of due process have been observed, then it is incumbent on those who have the power to do so – including the SCOTUS – to see that the matter is corrected.
Many of the people that the innocence project has exonerated on evidence that proved their innocence beyond reasonable doubt had already exhausted all the legal forms of appeal.
To insist that the formal process must rule would be to insist that these people must always bear the stigma of being deemed guilty of a crime, even if clemency or a pardon is granted.
Damn HTML tags.
Scalia has morals? That is funny…..
CIII
I disagree with you entirely. It is definetly not a catholic problem for two reasons. One…Judges don’t kill people. Two…the governor has the power to commute the sentence…anytime he feels like it. If it is obvious he is innocent get the governor to commute the sentence. I would say it would be a sin for the governor not to commute the sentence in this case….judge…has nothing to do with it since the man was already sentenced.
[...] and Clarence Thomas didn't even think Davis should have been able to appeal before a single judge. Scalia said that the U.S. Constitution guarantees only a fair trial, but that actual innocence is irrelevant: [...]
[...] Radley Balko found that Alan Dershowitz is also bewildered about Scalia’s anti-innocence position. [...]