Scalia: Constitution Doesn't Recognize Claims of Innocence After Verdict

Via Left in Alabama, Justice Scalia had this to say about the Troy Davis case, in which he dissented from the majority which ordered Davis get a hearing on his innocence claim. Davis, you may know, has had one of the the most compelling claims of innocence in decades. According to Justice Scalia:

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.

Left in Alabama responds:[More...]

I'm starting to empathize with those tea-baggers who want their country back. Only we may not want the same country*. I want the one where it's "better that ten guilty persons escape than that one innocent suffer."

Perhaps Scalia needs to re-read the 1895 Supreme Court Decision in Coffin v. United States, that I explained here:

The Coffin case stands for the proposition that at the request of a defendant, a court must not only instruct on the prosecution's burden of proof--that a defendant cannot be convicted unless the government has proven his guilt beyond a reasonable doubt--but also must instruct on the presumption of innocence--by informing the jury that a defendant is presumed innocent. The Court stated,

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.

In tracing the presumption of innocence, the Court goes on to state:

It is stated as unquestioned in the text-books, and has been referred to as a matter of course in the decisions of this court and in the courts of the several States. See Taylor on Evidence, vol. 1, c. 5, 126, 127; Wills on Circumstantial Evidence, c. 5, 91; Best on Presumptions, part 2, c. 1, 63, 64; c. 3, 31-58; Greenleaf on Evidence, part 5, § § 29, &c.; 11 Criminal Law Magazine, 3; Wharton on Evidence, § 1244; Phillips on Evidence, Cowen & Hill's Notes, vol. 2, p. 289; Lilienthal v. United States, 97 U.S. 237; Hopt v. Utah, 120 U.S. 430; Commonwealth v. Webster, 5 Cush. 295, 320; State v. Bartlett, 43 N.H. 224; Alexander v. People, 96 Illinois, 96; People v. Fairchild, 48 Michigan, 31; People v. Millard, 53 Michigan, 63; Commonwealth v. Whittaker, 131 Mass. 224; Blake v. State, 3 Tex. App. 581; Wharton v. State, 73 Alabama, 366; State v. Tibbetts, 35 Maine, 81; Moorer v. State, 44 Alabama, 15.

Greenleaf traces this presumption to Deuteronomy, and quotes Mascardus De Probationibus to show that it was substantially embodied in the laws of Sparta and Athens. Greenl. Ev. part 5, section 29, note. Whether Greenleaf is correct or not in this view, there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration, as the following extracts show:

"Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day." Code, L. IV, T. XX, 1, 1. 25.

The noble (bivus) Trajan wrote to Julius Frontonus that no man should be condemned on a criminal charge in his absence, because it was better to let the crime of a guilty person go unpunished than to condemn the innocent." Dig. L. XLVIII, Tit. 19, 1. 5. "In all cases of doubt, the most merciful construction of facts should be preferred." Dig. L. L, Tit. XVII, 1. 56. "In criminal cases the milder construction shall always be preserved." Dig. L. L, Tit. XVII, 1. 155, s. 2. "In cases of doubt it is no less just than it is safe to adopt the milder construction." Dig. L. L, Tit. XVII, 1. 192, s. 1.

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, "a passionate man," seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, "Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Rerum Gestarum, L. XVIII, c.1.

The rule thus found in the Roman law was, along with many other fundamental and humane maxims of that system, preserved for mankind by the canon law. Decretum Gratiani de Presumptionibus, L. II, T. XXIII, c. 14, A.D. 1198; Corpus Juris Canonici Hispani et Indici, R.P. Murillo Velarde, Tom. 1, L. II, n. 140.

Exactly when this presumption was in precise words stated to be a part of the common law is involved in doubt. The writer of an able article in the North American Review, January, 1851, tracing the genesis of the principle, says that no express mention of the presumption of innocence can be found in the books of the common law earlier than the date of McNally's Evidence (1802). Whether this statement is correct is a matter of no moment, for there can be no doubt that, if the principle had not found formal expression in the common law writers at an earlier date, yet the practice which flowed from it has existed in the common law from the earliest time.

Fortescue says: "Who, then, in England can be put to death unjustly for any crime? since he is allowed so many pleas and privileges in favor of life; none but his neighbors, men of honest and good repute, against whom he can have no probable cause of exception, can find the person accused guilty. Indeed, one would much rather that twenty guilty persons should escape the punishment of death than that one innocent person should be condemned and suffer capitally." De Laudibus Legum Angliae, Amos' translation, Cambridge, 1825.

Lord Hale (1678) says: "In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die." 2 Hale P.C. 290. He further observes: "And thus the reasons stand on both sides, and though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger, quod dubitas, ne faceris." 1 Hale P.C. 24.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem. How fully the presumption of innocence had been evolved as a principle and applied at common law is shown in McKinley's case (1817), 33 St. Tr. 275, 506, where Lord Gillies says: "It is impossible to look at it [a treasonable oath which it was alleged that McKinley had taken] without suspecting, and thinking it probable, it imports an obligation to commit a capital crime. That has been and is my impression.

But the presumption in favor of innocence is not to be reargued by mere suspicion. I am sorry to see, in this information, that the public prosecutor treats this too lightly; he seems to think that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman; and I was happy to hear from Lord Hermand he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a decree of conviction short only absolute certainty." (my emphasis)

The Coffin case was later overruled on other grounds, having nothing to do with these principles.

There's many who don't understand this simple principle and the history behind it. In February, 2000, Al Gore was interviewed in the San Francisco Bay Guardian. The article was called "15 Minutes of Al." It's no longer on line, but I quoted from it at the time:

When asked about his support of the death penalty in light of the rising number of innocents on death row, Gore said he is so strongly in support of the death penalty that he's willing to accept a few wrongful executions. Here's a portion of the interview.

"BG: What do you think about the Republican governor of Illinois calling a moratorium on the death penalty because there has been so much evidence that innocent people are on death row?

AG: Well, I support the death penalty.

BG: Well, so does he.

AG: I understand, and I also understand that the high-profile cases that have put a new spotlight on the error in capital convictions have put this issue in a new light. In Illinois, I don't want to make a judgment on what the circumstances are because I don't have the expertise. Nationally, I would not be in favor of a moratorium. The "Hurricane" notwithstanding.

BG: Are there people on death row elsewhere, or federal death row, who are innocent? Isn't that something we should be worried about?

AG: I would hope not. But I'll tell you this: I think that any honest and candid supporter of the death penalty has to acknowledge that that support comes in spite of the fact that there will inevitably be some mistakes. And that's a harsh concession to make, but I think it's the only honest concession to make, and it should spur us to have appreciation for habeas corpus, for the procedural safeguards for the accused, and for the fairness that's a part of the American judicial system and to resist efforts to take away the procedural safeguards. " (emphasis supplied.)

Between Scalia and Gore, it reminds me of what a friend of mine told me, whose job it was to recruit big firms to commit their lawyers to pro-bono work defending death row inmates with no counsel. She said that often, the lawyers' response to her plea to take one of these cases was to almost whisper to her, "Do you have an innocent one I can take?"

They never quite got that there's no way to know if someone is innocent when they didn't have competent counsel at trial, were identified as a result of an overly suggestive eyewitness procedure, had a confession beaten out of them, no DNA testing, were ratted out by a lying jailhouse snitch, may have an IQ below the level establishing mental retardation, or may be incompetent, delusional or otherwise severely mentally incapacitated. The question is not "did they do it?" but were they convicted following a a fair trial at which their constitutional rights were protected? Everyone is presumed innocent until a jury returns a verdict of guilty at the conclusion of a fair and impartial trial at which they are afforded their full panapoly of rights. If we can't trust in the credibility of the verdict, we can't trust in the integrity of the system that delivered it.

There is simply no excuse for executing someone who has a reasonable claim of innocence before providing him or her with a full and fair hearing on their claim. It's not what a civilized nation does, it's contrary to almost every constitutional right we have, from due process of law to the Sixth Amendment guarantee of a fair trial and effective assistance of counsel, to the 8th Amendment ban on cruel and unusual punishment. And it's certainly not justice.

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    Idiocy (5.00 / 1) (#1)
    by Lacy on Wed Aug 19, 2009 at 06:41:23 AM EST
    The SCOTUS was established by the Constitution framers as the body to interpret the Constitution as it applies to US law.

    Scalia interprets the Constitution to supposedly say "Not to be interpreted".  

    More specifically, Scalia thereby interprets the Constitution as saying "Only Scalia can interpret the US Constitution".

    The proper interpretation of those facts is that Scalia's thinking is mentally defective.

    Dark ages (5.00 / 3) (#2)
    by mmc9431 on Wed Aug 19, 2009 at 07:23:40 AM EST
    The absolute coldness of this philosphy (particularly coming from someone sitting on the bench of the SC) is beyond my comprehension.

    What's equally troubling is that so many people in the country share that view. I really thought we had advanced from the days when the emperor would kill all 10 suspects so that he'd be sure that he got the "guilty" one.

    Well said... (none / 0) (#4)
    by kdog on Wed Aug 19, 2009 at 07:53:25 AM EST
    somewhere along the line we stopped evolving and started devolving.

    Like they said in the film "Bob Roberts"..."the times are changing back!".

    Next thing ya know we will see the return of debtors prisons...you know Scalia would be down.


    Joshua agrees with you (none / 0) (#5)
    by Militarytracy on Wed Aug 19, 2009 at 07:53:38 AM EST
    He says we are going through a dark ages too.

    He is a cold man, and (none / 0) (#6)
    by JamesTX on Wed Aug 19, 2009 at 08:08:12 AM EST
    his opinions represent the exact opposite of everything about our system that I came to understand in the course of my (non-legal) education. Basically, in non-legal terms, I was taught that America was founded on distrust of government and authority, and that our system kept the arbitrary power of government in check by giving defendants an advantage. Somewhere during the conservative movement, that idea was reversed and people started believing that conviction of the guilty was more important than protection of the innocent. Scalia and Roberts are the most powerful artifacts of that movement, and they will be with us for a long time after we have discovered our error. Many will suffer, and we owe them our best effort to use the other branches of government to correct our mistake.

    Well your post (5.00 / 2) (#3)
    by Bemused on Wed Aug 19, 2009 at 07:44:14 AM EST
     is basically a long non sequitur as regards Scalia's quote.

      The presumption of innocence does not exist at the habeas (or even direct appeal) level and never has. On habeas, the burden is on the petitioner and it's not the burden to persuade reasonable doubt exists. It's the burden to persuade there is a substantial probability the verdict was wrong--i.e., he is innocent.

      Certainly, I believe both state and federal (esecially since AEDPA) systems fail to afford mant petitionewrs proper procedural due process but that is a far different matter than theones you are conflating. Lack of access to counsel, arbitrary time limits, arcane jurisdictional rules, summary dismissals  or summary judgment without opportunity for meaningful discovery let alone hearing, etc, etc., are all fundamental defects in my opinion.

       I absolutely believe that "actual innocence" should always be grounds for vacating a conviction and that every petitioner should have a fair opportunity to establish it, but "actual innocence" is not the same practically or morally as an argument that is essentially some people belive there is reasonable doubt even though the jury didn't.

      As for Troy Davis, I think you do a grave disservice to the many people who have far more compelling claims of "actual innicence" than does he. Telling people this is the most compelling one in decades is likely to lead many to conclude many of the rest must lack almost any plausibility when that is not true. Davis has a better publicity machine and more prominent supporters but that is all.

      I think Davis and all other petitioners who can produce relevant facts creating reasonable questions of guilt or innocence deserve full opportunity to present their case. I do think that full opportunity must still require that the petitioner present persuasive affirmative evidence of "actual innocence" if the claim is based on an assertion of actual innocence.

      Now, people, may have other constitutional  grounds for claims they were deprived a fair trial and they may often ceexist with claims of actual innocence, but you mislead people when you imply that the presumption of innocence applies at the habeas level.

       If you are trying to make an argument that it SHOULD apply then you need to do far more than present out of context quotes that are not addressing that issue.


    Scalia (none / 0) (#7)
    by Steve M on Wed Aug 19, 2009 at 08:19:00 AM EST
    is not arguing that the burden should be on the petitioner, a notion with which few people would disagree, but that even a petitioner who can PROVE his innocence has no federal constitutional claim and thus can't even get in the courthouse door with a habeas petition.

    I do not believe Jeralyn is arguing that a convicted habeas petitioner should be entitled to a presumption of innocence.  Rather, I understand her to be making an argument that, based upon our legal system's longstanding emphasis on protecting the innocent, a claim of actual innocence surely must be cognizable under the Constitution.

    I understand why the Supreme Court has been reluctant to officially recognize this claim, because it would encourage every single prisoner to file a new habeas petition.  But the day when they declare the Constitution doesn't care whether an innocent person was convicted would be a sad one indeed.


    I think you underestimate Jeralyn (5.00 / 1) (#9)
    by Bemused on Wed Aug 19, 2009 at 08:47:36 AM EST
      She is quite capable of making compelling and cogent arguments when facts and principles to support her position exist. She is also rather adept at muddying the waters to obscure the flaws in her arguments when she is passionate about something but lacks those facts and principles.

      I agree, as I said, that a claim of "actual inocence" should be considered cognixzable under the Constitution. I also believe that arbitrary procedural bars that preclude rairsing such claims must be deemed unconstitutional. There must be substantive  relief available and reasonable procedural processes to petition for relief.

      Davis will be afforded that. but, based on what i have read his claims seem far from comelling period, let alone one of the most compelling decades. I think he has met a threshhold entitling him to a full evidentiary hearing. Beyond that, i would say that unless he has something a great deal more persuasive than 7 of the 9 witnesses now tell different stories. You should believe the liars are telling the truth now as opposed to then is not affirmative evidence of innocence.

      Affirmative evidence is, say, the blood serology testimony at my trial has not only been exposed as false, but subsequent DNA testing shows the blood or semen comes from a different person. That raises a substantial probaility I am not guilty and no rational truier of fact would have voted to convict me if it had that evidence.

      A corroborated confession from a third-party can also be compelling evidence of actual innocence. A credible alibi witness who is located long after the trial could be. There are other examples possible, but the fact prosecution witnesses recant is not affirmative evidence of innocence.

      Here, it is even more dubious than often is the case because they all claim pressure from the cops. given that a cop was killed that is undoubtedly true, but does little to support the notion that thepressure would be to convict Davis if he didn't do it as opposed to the now fashionable claim it was Coles. If witnesses told the cops it was Coles what earthly reason would the cops have to coerce them into fingering Davis and letting Coles walk?



    My question to you is (none / 0) (#11)
    by Steve M on Wed Aug 19, 2009 at 09:52:25 AM EST
    how do we recognize actual innocence as a federal constitutional claim, without making the federal courts into a second round of appellate courts for every person convicted in state court?

    we get rid of AEDPA (5.00 / 1) (#14)
    by Jeralyn on Wed Aug 19, 2009 at 11:05:31 AM EST
    as TChris and I have repeatedly argued. And federal courts are supposed to be a  "second round of appellate courts for persons convicted in state court" with constitutional claims. The 8th Amendment ban against cruel and unusual punishment works for me. As does ineffective assistance of counsel and the 6th amendment right to a fair trial and the 5th amendment guarantee of due process, as I said above.

    But, put your lawyer hat down. This is a post about Scalia's philosophy not the Troy Davis case per se, and is merely designed to remind people of the history of the presumption of innocence -- in all cases -- and that while the phrase may not appear in the Constitution, it has been the bedrock of our criminal justice system for over 200 years and is the hallmark of a civilized society. If ancient Greece and Rome could recognize that it is better than x number of guilty people go free rather than one innocent person be put to death, we should be able to continue to recognize it now -- whatever road map you use to get there.


    Uh, no (5.00 / 1) (#18)
    by Bemused on Wed Aug 19, 2009 at 12:21:14 PM EST
     Those grounds are distinct constitutional claims conceptually different from actual innocence claims and should be kept so. (Sometimes it's wise to keep that lawyer hat on!).

      With those claims you have to show error and prejudice. The prejudice to be shown  is NOT and shouldn't  be that the  person was convicted despite being innocent. Such claims only (only isn't a good word because even this is a high burden)that  the proceeding was flawed due to a constitutional error that was not harmless, i.e, that the court believes the result (regardless of guilt or innocence might have been different absent the error).

       If we are going to recognize "actual innocence" (as I believe we should then it kind of follows that the standard for it has to be focused on the question of probable innocence. Questions of fair trial are not the same as questions of a trial producing the wrong result. some cases will have both types of claims but each type of claim must be assessed using standards that make sense for it.



    Well (none / 0) (#22)
    by Steve M on Wed Aug 19, 2009 at 01:13:55 PM EST
    by rephrasing my question you are essentially assuming the conclusion.  Of course habeas is effectively a second round of appeals for people with federal constitutional claims - because we don't trust the state courts to provide the final word on those claims.  But my question is whether we want to make habeas a second round of appeals for everyone who seeks to dispute their guilt.

    I think Troy Davis has enough evidence of innocence to entitle him to an evidentiary hearing, and I think the Supreme Court made the right call.  I'm just wondering how we could structure a system where people like Davis get their day in court, without declaring that every single defendant who wants to relitigate the facts of their case gets a new evidentiary hearing.


    But (none / 0) (#24)
    by jbindc on Wed Aug 19, 2009 at 03:32:22 PM EST
    Does a convicted felon enjoy the "presumption of innocence"?  Isn't Scalia's point that after adjudication of a case, the Constitution does not recognize a presumption of innocence? The way I remember it, and how some here have stated, the burden is now on the convict to prove his innocence (or at least, prove there is enough evidence for an evidentiary hearing),right?

    I do not believe (none / 0) (#25)
    by Steve M on Wed Aug 19, 2009 at 03:47:14 PM EST
    that anyone in this thread is arguing that a convicted felon enjoys a presumption of innocence.

    Scalia's quote, though, suggests that even if the convicted felon can prove he is innocent, the Constitution contains nothing to prevent him from being executed.  That's another thing altogether.


    Well, I think Jeralyn (none / 0) (#27)
    by Bemused on Wed Aug 19, 2009 at 04:12:44 PM EST
     despite your valiant effort at rescue put forth that argument. Why else the advice to Scalia to read Coffin or the nutshell version the history of the presumptiomn as at trial. Clearly, if  that was not her intent that's some really bad writing and she's usually  not a bad writer.

      I agree   Scalia implies he does not believe executing a man who has shown actual innocence violates the federal constituion, even if he does do it obliquely by saying the "court has never...".

      It obviously follows from the premise that one does not present a constititutional violation in such circumstances that a person can have no right to the means of proving something that would not be cause for a remedy if proven.

      That brings us back to your question about judicial resource considerations if we do recognize actual innocence as a distinct federal ground. Again, I think the costs are real but more than substantially outweuighed by the intersts of justice. What good is a substantive right if we deny the procedural rights needed to obtain it?

      The last question is what do we believ constitutes justice and what minimal safeguards need to be present to maintain faith we do the best job we can to provide it. There will always be wrong results in any system reliant on humans, but sometimes we have to pay a lot to minimize a small number of mistakes just because while the number is small the enormity of each is incalculable.

      Killing is much different than doing anything else-- even if you are not religious (and I'm not), you should see not only the value of every human life but ask whether others should ever decide the value of someone else's life-- even if tht someone else is a stone cold killer himself. If you believe killing some killers is justified you should at least demand we be as certain as it is possnble to be he is one.



    right (none / 0) (#28)
    by Jeralyn on Wed Aug 19, 2009 at 04:20:42 PM EST
    the post is about the origin of the phrase, "It's better that x number of guilty people go free than one innocent person be put to death."

    I was quoting Left In Alabama who wrote:

    I'm starting to empathize with those tea-baggers who want their country back. Only we may not want the same country*. I want the one where it's "better that ten guilty persons escape than that one innocent suffer."

    It's about how important the concept of innocence is.  I just wrote a new post on Alan Dershowitz's column today in which he wrote:

    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.

    And a good question it is. (none / 0) (#12)
    by Bemused on Wed Aug 19, 2009 at 10:37:54 AM EST
      Resources are not unlimited and some restrictions have to exist. I'd say there is a great deal of truth to concern that allowing "too much" access to the courts for "frivolous" calims could have the effect of diverting resources from more meritorious claims.

      That said, "actual innocence" claims are a narrow subset of all claims for relief from wrongful convictions. Not every person, or even a substantial plurality,  convicted by a jury will be able to make even a preliminary showing of "actual innocence," but I do believe actual innocence claims deserve a different review than other constitutional claims-- particualrly with respect to bars on successive petitions and statutes of linitations.

      At the first stage, an application should require the person to recite specific facts he asserts he could prove that if true would raise a substantial probaility  of his innocence, and the support for those facts in terms of describing the anticipated evidence(not presenting just describing). He must also show that he has exhausted state remedies and was  procedurally  denied an opportunity to present these facts in the state court or that the state court was clearly wrong in deciding on the merits. The government should have opportunity to respond if it desires.

     If the court determines either the asserted facts if true would not create a substantial probability of innocence  or that the description of the evidentiary support does not persuade there is a strong possibility such evidence actually exists or could actually be presented in admissible form, then a dismissal would then be warranted.  The vast majority of cases would justly conclude here and I don't think the burden would be appreciably greater than it is now with pro se petitions.

      If however, the court finds the asserted facts would establish a substantial probability of innocence if true and there is a reasonable basis for believing they might be true, then the next step would be to allow for discovery, investigation  and the appointment of counsel if needed. the majority of the work at this stage would not burden the courts that much beyond costs of counsel and investigation.

       Then summary judgment would be warranted unless the petitioner can now now produce evidence in the form of depositions and affidavits and exhinbits that if credited would establish a strong probability of factual innocence. If he can't do that then judgment against him should be entered. If he can do it then he should get a full evidentiary hearing, and if he meets his burden of persuading the court that credible evidence establishes a substantial probaility of innocence then he should get a new trial.

       The bottom line is that relative to the total number of criminal actions, the number where credible claims of factual innocence exist following conviction by jury trial is a tiny percentage. Yes, that still represents a large enough number ro increase the burdens on the court but if our courts are not available for this then they are failing to fulfill the most fundamentla reason for their existence.


    guess you missed (none / 0) (#13)
    by Jeralyn on Wed Aug 19, 2009 at 10:51:53 AM EST
    that I called it "one of the most compelling" not "the most compelling" and had you followed the link, you would have gone to TChris' post explaining why.

    If you are taliing about this (none / 0) (#16)
    by Bemused on Wed Aug 19, 2009 at 12:09:17 PM EST

      I read it and see not a single solitart description of anything that would eveidence let alnoe compelling evidence. I see the PR machine and prominet suporters I mentioned as being the only thing in Davis' case that is "compelling."

      Perhaps evidence  exists and you can explain IT rather than spin and defelct with reference to bishops and ex-presidents, but all I have seen is a bunch of stories here and elsewhere acting as if the recantatins provide evidence of innocence when there appears to be little basis for making that claim.



    Putting a demonstrably innocent man to death... (5.00 / 1) (#8)
    by magster on Wed Aug 19, 2009 at 08:28:56 AM EST
    is "cruel and unusual punishment".  I thought Scalia was a self-proclaimed "plain meaning" kinda Justice.

    That's a plausible theory (none / 0) (#10)
    by Bemused on Wed Aug 19, 2009 at 08:56:28 AM EST
      but I think due process is the more likely ground for the entitlement to relief.

       I don't think the cruel and unusual punishment clause has ever been juxtaposed with the concept of innocence.  No punishment whatsoever should be considered contitutional if a person is "actually innocent."

     I also think it would be less than ideal because not all cases of actual innocence have to involve death or even long sentences and if we start down the road to saying sentences should be constrained by subjective views of the degree of certainty of guilt and thus limited where less certainty exists, the flip side is to provide arguments for harsher ones (including death) where certainty is very high.

      I'd rather leave c&U to assessments of punishment (although much more frequently found than traditionally) and premise relief in innocence claims on due process.


    Gore's comment (none / 0) (#15)
    by coigue on Wed Aug 19, 2009 at 11:32:43 AM EST
    about mistakes is shocking.

    Well, (none / 0) (#19)
    by Bemused on Wed Aug 19, 2009 at 12:32:14 PM EST
     it might not have been a prudent thing to say, but is honest. Denying that mistakes are inevitable would show either fantastical denial or dishonesty.

       That he is willing to accept "mistakes" that result in the government killing innocent people because he believes the benefit of killing some guilty ones outweighs that is pretty mainstream unfortunately. It's shocking only if you assumed things about Gore that his record has never suggested.



    but is honest (none / 0) (#29)
    by coigue on Thu Aug 20, 2009 at 11:54:46 AM EST

    I don't find it shocking (none / 0) (#20)
    by Steve M on Wed Aug 19, 2009 at 01:05:31 PM EST
    I find it commendable, which is not to say that I find Gore's support for the death penalty commendable.  But I also think Scalia has made valid comments along the same lines (I refuse to commend Scalia on general principles).

    Consider this statement: "If we're going to have a system that sends people to prison for the rest of their natural life with no parole, we have to accept that the system will make some mistakes."  It's the same argument, and I would agree with it as well.  We hope, of course, that if we sentence someone to life in prison that we'd at least be able to correct our mistakes before the person dies - but it's a virtual guarantee that we won't be able to do so in all cases.  Some innocent people will die in prison.

    Of course, we don't have to "accept" it in the sense that it doesn't trouble us.  Whether or not we have the death penalty, of course we're going to try and make our system as accurate and error-free as possible.  But if the system is less than perfect, are we going to send people to prison even though we know that some of them are innocent, or are we going to say "imprisoning innocent people is unacceptable, so we're not going to imprison anyone at all until we can say with confidence that our system is perfect."  As a society we have obviously chosen the former course.

    Executing an innocent person is horrible, of course.  But sending an innocent person to prison for life is also horrible.  Sending an innocent person to prison for 20 years is also horrible.  Are those outcomes MUCH less horrible than executing an innocent person?  Not in my book, really.


    It's the same argument (none / 0) (#26)
    by Bemused on Wed Aug 19, 2009 at 03:48:06 PM EST
      but although you can't give the lifer his years served back you can release him(and compensate him monetarily if appropriate) if the actual innocence claim is proven.

      Once a person is dead, there is no even imperfect remedy. Of course, it's not now  as if the time between death sentence and execution is brief or  that substantial judicial resources are not expended. The person sentenced to death probably has a better chance of getting his conviction overturned than does a person sentenced to life or a long term of years precisely because the law does afford him "more due process" than others but there is a reason for that.

        On the question of judicial economy, I'd throw out another thought -- how much time and money is spent seeking, resisting and ruling on whether to grant evidentiary hearings compared to the amount that would be expended if they were given as a matter of course after a reasonable preliminary showing?



    I think it is much less (none / 0) (#30)
    by coigue on Thu Aug 20, 2009 at 11:56:15 AM EST
    horrible, because dying in prison is a type of natural death, not imposed by the state.

    The numbers game (none / 0) (#21)
    by diogenes on Wed Aug 19, 2009 at 01:07:22 PM EST
     Indeed, one would much rather that twenty guilty persons should escape the punishment of death than that one innocent person should be condemned and suffer capitally." De Laudibus Legum Angliae, Amos' translation, Cambridge, 1825.

    Hundreds of people have been executed in the US since 1974.  Can anyone name one innocent person who was executed as yet?  Hardly "one in twenty".
    How many people will one hundred murderers who are released due to being found "innocent" at trial kill upon being released to civilian life?

    not that it really matters much (none / 0) (#23)
    by Bemused on Wed Aug 19, 2009 at 01:23:51 PM EST
    but whether it's 10, 20, 100 or any number, it's not likely meant as a literal statement.

      It's not meant to express  "better that x number of guilty go free than one innocent be condemned, but if x+10 guilty people go free for every wrongly condemned  that's the correct proportion."