Why Justice Scalia Wants to Execute the Innocent

by Conor Clarke

Let me take the bait and say that I think the liberals who are dumping on Justice Scalia for his dissent in the Troy Davis case (here's ThinkProgress and here's Adam Serwer of the American Prospect) are being a bit harsh. Davis was convicted of murder and sentenced to die, but now many of the witnesses who testified against him have recanted. So the Supreme Court, quite reasonably I think, ordered a federal district court in Georgia to look at the evidence once more. Scalia was not happy about this and dissented, writing:

This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.


Which, yes, certainly sounds like a terrible thing to say. But is this a crazy view? I'm not a lawyer and can't speak to whether the court has "never held" what Scalia says, or whether Davis actually had a "full and fair trial." I hope neither of these things is true. But if they are true, why would it be so surprising? Procedural rights (like the right to a lawyer or the right to avoid self incrimination) do not guarantee a specific outcome (like the correct decision in a case). It is possible to imagine a fair trial that respects everyone's rights but nonetheless reaches the wrong conclusion.

I think procedural rights are useful in large part because they prop up substantive considerations that our society values -- like guilt or innocence when guilt or innocence is deserved. But an alternate view of procedural rights -- or a view that says, simply, that it's not the role of the Supreme Court to decide these things -- doesn't seem like it's molded out of unalloyed craziness.

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