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.

2006-2011 archives for The Daily Dish, featuring Andrew Sullivan

The Blacksmith: A Short Film About Art Forged From Metal

"I'm exploiting the maximum of what you can ask a piece of metal to do."

Join the Discussion

After you comment, click Post. If you’re not already logged in you will be asked to log in or register.

blog comments powered by Disqus

Video

Riding Unicycles in a Cave

"If you fall down and break your leg, there's no way out."

Video

Carrot: A Pitch-Perfect Satire of Tech

"It's not just a vegetable. It's what a vegetable should be."

Video

An Ingenious 360-Degree Time-Lapse

Watch the world become a cartoonishly small playground

Video

The Benefits of Living Alone on a Mountain

"You really have to love solitary time by yourself."

Video

The Rise of the Cat Tattoo

How a Brooklyn tattoo artist popularized the "cattoo"

Just In