Never one to avoid a lively debate, Harvard law prof Alan S. Dershowitz (previous posts here) lays the wood to Supreme Court Justices Antonin Scalia and Clarence Thomas in this Daily Beast op-ed over the extent of their rationalizations to avoid restricting application of the death penalty:
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.”
You know, he’s got a point. As noted earlier here, Justices Scalia and Thomas’ rigid reasoning sure do lead to some dubious decisions.
For some reason, my instinct here is to halfway defend Thomas and Scalia. How is the Supreme Court supposed to let them go? They’ve had due process, right? So why not let the political branches right the obvious wrong.
Again, assuming due process as in the hypo, nothing else in the Constitution seems to compel a different result.
I don’t seriously suggest that’s how I would vote. Unlike Scalia, I wouldn’t put a man’s life at stake so I could school the executive and legislative branches on the Constitution. I would do what Scalia and Roberts did. But there’s a bullheaded elegance to their consistency which is admirable in other areas.
Scalia reminds me of Killer Keller with this choice of procedure over justice.
If this is all we expect then we really don’t need judges, just a few computers to render the decisions and some clerks to hand out the papers.
Come, now, Tom. Professor Dershowitz has a pretty lame argument if he’s got to present a red-herring example like this one to prevail. Out of one side of his mouth, he speaks of a constitutionally unflawed trial, and then out of the other gives us a murdered wife who turns out not to be dead. The constitutionally unflawed murder trials I’m familiar with include airtight due process – which in a murder case would include an identified body (most likely dead). This sort of air-headed navel-gazing is what I would expect in the hallways of the Harvard Law School, but I’m surprised you would have an appreciation Dershowitz’s (flawed) point.
In any case, I read Scalia’s statement to say that, if a defendent could prove himself innocent, it was the habeas court’s job to do the exonerating, not the Supreme Court’s job.
I think you and the good professor are mistaking appropriate originalist interpretation of the constitution for “rigid rasoning”.
Steve, unfortunately, your interpretation of what Scalia wrote is not what he wrote. What he said is that the Constitution does not forbid 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 ëactuallyí innocent. I don’t understand how that could be anything other than a frightening deference to the exercise of among the most draconian levers of state power.
If you think ‘innocence’ trumps process, do you think ‘guilt’ should likewise trump process, where procedural deficiencies (ill-obtained evidence, biased jurors, etc.) are ignored if the defendant is indeed guilty? If the latter, then let’s keep Skilling in jail, because even though the prosecutors screwed up, Skilling ‘obviously’ did something wrong?
I believe Scalia to be saying that if the country values process over result, if we are indeed a country of laws, then we have to be willing to accept the occasional bad result.
Disagree? Or do you want to selectively decide which standard you wish to apply in different cases?
Steve, but doesn’t Scalia’s point beg the question? Should process trump innocence when the process is intrinsically flawed, as most death penalty cases are?
Provide excellent defense attorneys for defendants in death penalty cases. Allow those attorneys comparable resources to defend the case as the state uses in prosecuting it, and then provide for an automatic appeal of death penalty sentences handled by appellate experts in the field.
If that were the process, I could understand the tolerance of the occasional mistake in a death penalty case,although I suspect that neither you nor I would ever feel comfortable about such an error. But sadly, that is not close to the process.
It would be interesting to read how you explain how you can complain of the rigid reasoning of Scalia, Thomas, Roberts, and Alito and yet support only politicians who will appoint more of their ilk to the Court
how is the process intrinsically flawed? and if it’s flawed in death penalty cases, where there are more protections and reviews for defendants, then by extension, doesn’t it have to be flawed in every criminal case?
John D, I don’t know how you can conclude that I “support only politicians who will appoint more of their ilk to the Court.” I cannot recall supporting a political candidate on this blog. For your information, I am independent politically and generally split my votes between the candidates of the two major political parties evenly.
Steve, in my prior comment, I outlined some of the ways in which the system for trying death penalty cases is flawed, particularly in cases in which the defendant is indigent. It is true that similar systemic flaws exist in cases involving less draconian penalties, but at least in those cases we are not ceding to the state the power to kill the defendant as the penalty.