Skip to main content

State Killing: Scalia Doesn't Care Whether You're Innocent, You Get Executed Anyway


In the middle of Justice Scalia's dissent in Troy Davis's case, a dissent that Clarence Thomas joined in, we have this remarkable, astonishing, shocking sentence:

“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 court that he is ‘actually’ innocent.”

I cannot believe that they wrote this in a Supeme Court opinion. And I'm not alone in thinking I would never, never, never see something like this in a published opinion.

Let's begin with the trial. The State of Georgia tried Troy Davis for murder and it got a conviction. And that conviction was upheld on appeal. In fact, there was nothing the matter with the trial, nothing wrong at all according to the appeals courts except one small thing. The jury convicted an innocent man.

Troy Davis was convicted of the capital murder of Mark MacPhail, an off-duty police officer who as then working as a security guard. You might think that convicting an innocent person was a serious problem with the trial. Unfortunately, Davis's persistent claims that he was innocent of the crime weren't enough to convince anyone. It was only later on, after the trial, after the appeals, that the ugly circumstances in the case emerged.

There were nine witnesses to the crime in which MacPhail was killed. Anthony Davis was apparently in a pool hall with a lot of other people. A man named Sylvester Coles was beating a homeless man outside; people including Davis emerged from the pool hall to see what was happening. MacPhail came to the aid of the person being beaten and was shot and killed. At trial Sylvester Coles was the prosecution's star witness. Seven other people said Anthony Davis committed the crime. The gun was never found. There was no physical evidence of any kind. That was the trial testimony, and it lead to a conviction and the death penalty. And to several affirmances on appeal.

And then, and then, and then, ut oh. Seven of the eight witnesses who claimed under oath and at trial to see Davis shoot MacPhail gave affidavits that their testimony at trial was false and they recanted their testimony. And some said that Coles was the actual killer and not Davis and that police coercion forced them to testify against Troy Davis instead of the real killer.

So Anthony Davis sits on death row. And he's facing execution. And the case goes to the Supreme Court. The majority, thank goodness, sent the case back to federal court for a hearing. Good. But Justices Scalia and Thomas dissented. And it's their dissent that makes me cringe.

Why? Evidently, in Scalia/Thomas World, if the state tries and convicts the wrong man, one who is actually innocent, and there's no Constitutional error committed in the trial according to the state courts, there's no constitutional problem with the state's killing him. Even if he's innocent. In other words, it's 100% legal, 100% ok to kill an innocent person. Law Professor Paul Campos explains:

Scalia takes the position that, from a legal perspective, it no longer makes the slightest difference whether Davis is innocent of the murder he was convicted of committing, and for which, in all likelihood, he will be executed. If a defendant got a fair trial in state court, there’s nothing the federal court can do, Scalia argues, to reverse that verdict—even if new evidence comes to light that convinces the court to a moral certainty that the defendant is innocent.

Scalia represents an extreme example of a certain kind of judge that positively revels in coming to conclusions that are morally revolting but “legally” sound. Judges of this type like these sorts of cases because they demonstrate that law is a supposedly nonpolitical and intellectually rigorous practice, rather than a touchy-feely exercise in doing what strikes the judge as the right thing.

What, after all, could be more nonpolitical and intellectually rigorous than executing an innocent man, simply because “the law” requires that result? In a perverse way, such bloody logic is a kind of advertisement for the supposed objectivity of the legal system, since we can assume that no sane decision maker would reach such a decision voluntarily. (The great legal historian Douglas Hay explained the 18th-century English practice of sometimes acquitting obviously guilty men on absurd procedural technicalities, such as incorrectly calling the defendant a “farmer” instead of a “yeoman,” in similar terms: “When the ruling class acquitted men on such technicalities they helped embody a belief in the disembodied justice of the law in the minds of all who watched. In short the law’s absurd formalism was part of its strength as ideology.”)

For more details on this case, and the recantations, see this.

I have written extensively about the barbarism that lies behind state killing. But I have never before seen anything quite like this statement from Justices Scalia and Thomas. It used to be a fundamental part of the law that it was better to let 99 guilty people go free than to convict 1 innocent person. In fact, the system of criminal justice in this Country was built on this very platform. But now, we have two Supreme Court justices writing that the death penalty can be upheld even when the person executed is innocent, that innocence just doesn't matter. Forget about the fact that if you're killing an innocent person, the person who actually did the crime hasn't been convicted.

That is chilling and simply disgraceful.

And it's another strong reason for ending state killing entirely. The machinery of death is an embarrassment to a civilized nation. Arguments like Scalia's and Thomas's reduce us to barbarians. And we're going to have evil, immoral arguments like these as long as there's a death penalty. That and we're going to continue to make it possible to kill innocent people.


Source: The Dream Antilles, August 20, 2009

Most viewed (Last 7 days)

Florida executes Michael Tanzi

Florida on Tuesday executed a death row inmate described by one local detective as a "fledgling serial killer" for the murder of a beloved Miami Herald employee. Florida executed Michael Tanzi on Tuesday, 25 years after the murder of beloved Miami Herald employee Janet Acosta, who was attacked in broad daylight on her lunch break in 2000.   Michael Tanzi, 48, was executed by lethal injection at the Florida State Prison in Raiford and pronounced dead at 6:12 p.m. ET. 

South Carolina | Man who ambushed off-duty cop to face firing squad in second execution of its kind

Mikal Mahdi, 48, who was found guilty of killing an off-duty police officer and a convenience store worker, is the second inmate scheduled to executed by South Carolina's new firing squad A murderer who ambushed and shot an off duty police officer eight times before burning his body in a killing spree is set to become the second person to die by firing squad. South Carolina's highest court has rejected the last major appeal from Mikal Mahdi, 41, who is to be put to death with three bullets to the heart at 6pm on April 11 at the Broad River Correctional Institution in Columbia. Mahdi's lawyers said his original lawyers put on a shallow case trying to spare his life that didn't call on relatives, teachers or people who knew him and ignored the impact of weeks spent in solitary confinement in prison as a teen.

Lethal Injection, Electric Chair, or Firing Squad? An Inhumane Decision for Death Row Prisoners

South Carolina resumed executions with the firing squad killing of Brad Sigmon last month. Mikal Madhi’s execution date is days away. The curtain shrieked as it was yanked open to reveal a 67-year-old man tied to a chair. His arms were pulled uncomfortably behind his back. The red bull’s-eye target on his chest rose and fell as he desperately attempted to still his breathing. The man, Brad Sigmon, smiled at his attorney, Bo King, seated in the front row before guards placed a black bag over his head. King said Sigmon appeared to be trying his best to put on a brave face for those who had come to bear witness.

Afghanistan | Four men publicly executed by Taliban with relatives of victims shooting them 'six or seven times' at sport stadium

Four men have been publicly executed by the Taliban, with relatives of their victims shooting them several times in front of spectators at a sport stadium. Two men were shot around six to seven times by a male relative of the victims in front of spectators in Qala-i-Naw, the centre of Afghanistan's Badghis province, witnesses told an AFP journalist in the city.  The men had been 'sentenced to retaliatory punishment' for shooting other men, after their cases were 'examined very precisely and repeatedly', the statement said.  'The families of the victims were offered amnesty and peace but they refused.'

South Carolina executes Mikal Mahdi

Mikal Mahdi, 42, was executed for the 2004 murder of 56-year-old James Myers A man facing the death penalty for committing two murders was executed by firing squad on Friday, the second such execution in the US state of South Carolina this year. Mikal Mahdi, 42, was executed for the 2004 murder of 56-year-old James Myers, an off-duty police officer, and the murder of a convenience store employee three days earlier. According to a statement from the prison, "the execution was performed by a three-person firing squad at 6:01 pm (2201 GMT)," with Mahdi pronounced dead four minutes later.

Louisiana | Lawyers of Jessie Hoffman speak about their final moments before execution

As Louisiana prepared its first execution in 15 years, a team of lawyers from Loyola Law were working to save Jessie Hoffman’s life. “I was a young lawyer three years out of law school, and Jessie was almost finished with his appeals at that time, and my boss told me we needed to file something for Jessie because he’s in danger of being executed,” Kappel said. Kappel and her boss came up with a civil lawsuit to file that said since they wouldn’t give him a protocol for his execution, he was being deprived of due process, and the lawsuit was in the legal process for the next 10 years.

USA | Why the firing squad may be making a comeback

South Carolina plans to execute Mikal Mahdi on Friday for the murder of a police officer, draping a hood over his head and firing three bullets into his heart. The choice to die by firing squad – rather than lethal injection or the electric chair – was Mahdi’s own, his attorney said last month: “Faced with barbaric and inhumane choices, Mikal Mahdi has chosen the lesser of three evils.” If it proceeds, Mahdi’s execution would be the latest in a recent string of events that have put the spotlight on the firing squad as a handful of US death penalty states explore alternatives to lethal injection, by far the nation’s dominant execution method.

I spent 16 years in solitary in South Carolina. This is what it did to me. | Opinion

South Carolinian Randy Poindexter writes about the effects 16 years of solitary confinement had on him ahead of South Carolina’s planned execution of Mikal Mahdi , who spent months in solitary as a young man. For 16 years, I lived in a concrete cell. Twenty-three hours a day, every day, for more than 3,000 days, South Carolina kept me in solitary confinement. I was a young man before I was sent to solitary — angry, untreated and unwell. I made mistakes. But I wasn’t sentenced to madness. That’s what solitary did to me. My mental health worsened with each passing day. At first, paranoia and depression set in. Then, hallucinations and self-mutilation. I talked to people who weren’t there. I cut myself to feel something besides despair. I could do nothing as four of my friends and fellow prisoners took their own lives rather than endure another day of torturous isolation.

Arizona | The cruelty of isolation: There’s nothing ‘humane’ about how we treat the condemned

On March 19, I served as a witness to the execution of a man named Aaron Gunches, Arizona’s first since 2022. During his time on death row, he begged for death and was ultimately granted what is likely more appropriately described as an emotionless state-assisted suicide. This experience has profoundly impacted me, leading to deep reflection on the nature of death, humanity, and the role we play in our final moments. When someone is in the end stages of life, we talk about hospice care, comfort, care, easing suffering and humane death. We strive for a “good death” — a peaceful transition. I’ve seen good ones, and I’ve seen bad, unplanned ones. 

Execution date set for prisoner transferred to Oklahoma to face death penalty

An inmate who was transferred to Oklahoma last month to face the death penalty now has an execution date. George John Hanson, also known as John Fitzgerald Hanson, is scheduled to die on June 12 for the 1999 murder of 77-year-old Mary Bowles.  The Oklahoma Court of Criminal Appeals on Tuesday set the execution date. The state’s Pardon and Parole Board has a tentative date of May 7 for Hanson’s clemency hearing, executive director Tom Bates said.