The Madness of Antonin Scalia, Ctd

by Conor Clarke

Yesterday I wrote a fairly tepid defense of Justice Scalia's position on the execution of a potentially innocent man, Troy Davis. Perhaps, I ventured, his position was not "molded out of unalloyed craziness." I got a lot of emails about that: "No no," you all said, "the composition of Scalia's madness is really quite pure." And, you know what, that's probably right. But before I backpedal completely let me offer up the main responses I received, which fall into these two categories. First:

The Eighth Amendment prohibits the infliction of cruel and unusual punishment. The "liberal" argument goes as follows: it is both cruel and unusual to execute someone for a crime he did not actually commit.  Period.

Check. Second:

The problem with Scalia's quote, and by extension your post regarding it, is that Troy Davis did not receive a full and fair trial if, in fact, several of the witnesses did not tell the truth during that trial.

And mate.

I should add that I stand by the general point of my post, which was that procedural rights normally aren't things that stand or fall depending solely on the outcomes they generate. But I read the quotes above as making two good points about this. First, it's not clear Troy Davis's procedural rights were satisfied. Second, even if those procedural rights were satisfied, the outcome in this case is so deeply terrible that it calls into question the value of the original procedures.

I also enjoyed Alan Dershowitz's opening hypothetical on this.