Dershowitz: Scalia's Death Penalty Remarks a "Betrayal" of Constitution and Church

Professor Alan Dershowitz, writing in the Daily Beast today calls Justice Antonin Scalia's remarks about the death penalty a betrayal of both the Constitution and the Catholic Church.

The Supreme Court justice’s shocking remarks about capital punishment are not just a distortion of the Constitution, says Alan Dershowitz, they’re also an outrage against his church.

My views on Scalia's remarks are here. To recap, Scalia wrote in his dissent in the Troy Davis case:

“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.”

Alan makes this analogy: [More...]

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.”

He then notes that Scalia is a devout Catholic, a subject Scalia has addressed over the years in the context of judging:

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.”

Even if, as Alan writes, Scalia interprets the Church's opposition to the death penalty as not applying in extraordinary cases, how can he justify the killing of one who might be innocent?

But 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?

It's Scalia himself who has brought religion into the death penalty argument.

Ordinarily I would not include a justice's religious views in a criticism of a judicial opinion, but with regard to capital punishment, it is Justice Scalia who has introduced the religious dimension. I am simply trying to hold him to his own published standards.

Alan is now challenging Scalia to a debate:

I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence.

Alan says the stakes are high for Scalia because if he loses the debate, then

it is clear that his constitutional views permitting the execution of factually innocent defendants are inconsistent with the teachings of the Catholic Church — then, pursuant to his own published writings, he would have no choice but to conform his constitutional views to the teachings of the Catholic Church or to resign from the Supreme Court.

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    I'd ask for a papal ruling (5.00 / 1) (#2)
    by ruffian on Wed Aug 19, 2009 at 04:46:13 PM EST
    but I believe the Catholic church would tie itself up in knots trying to back up the position of American politicians who oppose abortion but support capital punishment.

    I'd love to see Scalia resign because of this. I think he is more likely to leave the Church.

    Incorrect assumption that he would do either (none / 0) (#11)
    by rdandrea on Wed Aug 19, 2009 at 08:13:58 PM EST

    The whole entire "innocence" thing (5.00 / 1) (#3)
    by cawaltz on Wed Aug 19, 2009 at 04:58:28 PM EST
    is such a quaint notion./snark

    Scalia and Gonzalez, two birds of a proverbial feather.

    Let's jettison everything that actually makes us a civilized country. (rolling eyes)

    That's a clever argument (none / 0) (#1)
    by Bemused on Wed Aug 19, 2009 at 04:33:34 PM EST
      but Scalia's pretty clever himself. He'll probably first point out that his statement , while suggestive is not the holding in an opinion he has joined and it remains to be seen if he will be called upon to answer the question in a case before the court and how he will decide it until it is before him and briefed and argued.

     He could also distinguish -- to his own satisfaction, which is enough to win the challenge-- "authorizing" a killing from allowing a previously rendered verdict to stand based on the belief his court does not have constitutional authority to intercede and to do so would be unlawful.

    Can Dershowitz point to Catholic doctrine requiring Catholics always  to violate secular law to prevent an unjust death?

    And While I'm No Scholar of Catholic Doctrine (none / 0) (#9)
    by The Maven on Wed Aug 19, 2009 at 06:05:20 PM EST
    nor a lawyer, it seems that Prof. Dershowitz is perhaps improperly conflating two different meanings of the same word when he asks, "If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?"

    Based on my limited understanding, "innocent" when applied to the fetus means "without sin", as the taint from The Fall has yet to be attached.  In the second usage, it simply means free from any guilt associated with the commission of a crime as defined under the law.  The distinction between the two would appear to be more than sufficient for Justice Scalia to stand his ground in an absolutist sense.  I suspect that Dershowitz is very much aware of this, too, and merely relishes the idea of an opportunity to poke at Scalia.


    Excellent point, except (none / 0) (#10)
    by Inspector Gadget on Wed Aug 19, 2009 at 07:53:59 PM EST
    baby's are born sinners in the Catholic church. That is why baptism takes place as early as possible in their lives...to allow them to go straight to heaven should they die. Without baptism, they would die with original sin and have to spend time in purgatory or limbo (I forget the SOP of the church on that).

    and therein lies the distinction: (none / 0) (#12)
    by cpinva on Wed Aug 19, 2009 at 09:52:37 PM EST
    Excellent point, except baby's are born sinners in the Catholic church.

    in order for original sin to attach, you must be born first (or so the nuns taught me), the unborn dead don't qualify. this has been pretty much church doctrine since the whole original sin concept was developed.

    the church's position on capital punishment is well established: they're against it. that said, if scalia were truly an honorable man, he should immediately resign from the court.

    don't hold your breath everyone.


    Also, Dershowitz's wife analogy (none / 0) (#4)
    by Bemused on Wed Aug 19, 2009 at 05:00:59 PM EST
     is pretty weak. Facts proving the wife is alive establish no crime was committed. If no crime was committed it's not really  a question of guilt or innocence as it in the "some other dude did it cases."

      The question to be answered in "actual innocence" cases is not whether thre was a basis for the proceedings ( a crime) but whether a person can -- after failing to do so at trial establish actual innocence.

    Well (none / 0) (#5)
    by Steve M on Wed Aug 19, 2009 at 05:08:38 PM EST
    is that a distinction without a difference?  Do you state a claim of a federal constitutional violation simply by arguing that no crime was actually committed?

    I don't think that one (none / 0) (#6)
    by Bemused on Wed Aug 19, 2009 at 05:19:23 PM EST
     is ever getting to the federal habeas level. It seems pretty obvious that if the sate court did n ot promptly rrelease the person the governor would issue a pardon.

      However, I do think that,  if necessary, a far more unassailable case of a federal constitutional violation exists whre uncontrovertible facts absolutely prove no crime was committed.

      I like reductio ad absurdum arguments myself and use them sometimes, but Dershowitz'z effort here is weak precisely because logc does not dictate this result follows from Scalia's argument.


    I don't get it (5.00 / 1) (#7)
    by Steve M on Wed Aug 19, 2009 at 05:28:02 PM EST
    Consider two scenarios: in one, a murder was committed, but the evidence clearly establishes I didn't do it; in the other, the evidence clearly establishes there wasn't a murder at all.

    Why do I have a "far more unassailable" constitutional argument in the second case than in the first?  If it's clear that I didn't commit a murder, why do I have a weaker constitutional claim to be released just because there was, in fact, a murder?


    Right... (none / 0) (#8)
    by BigElephant on Wed Aug 19, 2009 at 05:43:04 PM EST
    You either committed said crime or you did not.  The notion that there was a crime committed or not exists in its own bubble as, in the example of murder, death doesn't imply a crime was committed -- therefore until the trial completes there is no distinction between no crime being commmitted vs a crime you didn't commit.

    Alan's argument seems to rest on pretty solid ground, IMO.  I'll go even one further that if Scalia was technically correct then the problem rests in our consititution (or other legal mechanisms that would permit such behavior).


    I think (none / 0) (#14)
    by Bemused on Thu Aug 20, 2009 at 07:58:38 AM EST
     when we look at the purpose of the writ of habeas corpus-- to allow a person in confinement to compel his imprisoner to show cause for the confinement, the fact it is a legal impossibility for there to be cause (because no crime exists) presents a stronger case for lack of cause than does the the claim that the evidence shows a person other than the prisoner committed a crime which did occur.  regardless, of the strenght or weakness of the evidence concerning who committed it the crime, it is not a legal impossibility for any particular person (including the prisoner) to have committed the crime.

      How can it possibly not be a violation of due process to imprison a person when it is legally impossible for him to be guilty?

    Yes, you argue how can it not be a violation of due process to imprison a person when the evidence shows factually that he didn't do it? I agree with you it should be considered a constitutional violation. And, I suppose if we agree that is as strong a  case as possible then other cases including "legal impossibility" can only be as strong but not stronger.

       The thing is it seems not everyone not agrees that   case presenting  person sentenced where he has evidence proving "actual innocence" of a crime which did occuer is as strong a case as possible of a federal constitutional violation.  



    Scalia makes his own rules (none / 0) (#13)
    by BobTinKY on Thu Aug 20, 2009 at 07:57:35 AM EST
    to suit whatever he wants to accomplish.

    see Bush v. Gore.

    He'll be as creatively originialist (or not) to get wherever he wants to go.  I am sure it is no different with church doctrine.

    Troy Davis case? (none / 0) (#15)
    by diogenes on Thu Aug 20, 2009 at 05:59:19 PM EST
    If the man is INNOCENT, as in DNA evidence innocent, then the governor can pardon him.  That is why there is the power of executive pardon.
      If the man wants a new trial years later because some witnesses say that they perjured themselves in a capital murder case in the early 1990's and have better memories today, that's a somewhat different matter.