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)

Singapore executes three drug mules over two days

Singapore hanged three people for drug offences last week, bringing the total number of executions to 17 this year - the highest since 2003. These come a week before a constitutional challenge against the death penalty for drug offences is due to be heard. Singapore has some of the world's harshest anti-drug laws, which it says are a necessary deterrent to drug crime, a major issue elsewhere in South East Asia. Anyone convicted of trafficking - which includes selling, giving, transporting or administering - more than 15g of diamorphine, 30g of cocaine, 250g of methamphetamine and 500g of cannabis in Singapore will be handed the death sentence.

Florida | After nearly 50 years on death row, Tommy Zeigler seeks final chance at freedom

The Winter Garden Police chief was at a party on Christmas Eve 1975 when he received a phone call from his friend Tommy Zeigler, the owner of a furniture store on Dillard Street. “I’ve been shot, please hurry,” Zeigler told the chief as he struggled for breath. When police arrived at the store, Zeigler, 30, managed to unlock the door and then collapsed “with a gaping bullet hole through his lower abdomen,” court records show. In the store, detectives found a gruesome, bloody crime scene and several guns. Four other people — Zeigler’s wife, his in-laws and a laborer — lay dead.

Louisiana death row inmate freed after nearly 30 years as overturned conviction upends case

A Louisiana man who spent nearly 30 years on death row walked out of prison Wednesday after a judge overturned his conviction and granted him bail. Jimmie Duncan, now in his 60s, was sentenced to death in 1998 for the alleged rape and drowning of his girlfriend’s 23-month-old daughter, Haley Oliveaux — a case long clouded by disputed forensic testimony. His release comes months after a state judge ruled that the evidence prosecutors used to secure the conviction was unreliable and rooted in discredited bite-mark analysis.

Oklahoma board recommends clemency for inmate set to be executed next week

A voting board in Oklahoma decided Wednesday to recommend clemency for Tremane Wood, a death row inmate who is scheduled to receive a lethal injection next week at the state penitentiary in McAlester.  Wood, 46, faces execution for his conviction in the 2001 murder of Ronnie Wipf, a migrant farmworker, at an Oklahoma City hotel on New Year's Eve, court records show. The recommendation was decided in a 3-2 vote by the Oklahoma Pardon and Parole Board, consisting of five members appointed by either the governor or the state's top judicial official, according to CBS News affiliate KWTV. Oklahoma Gov. Kevin Sitt will consider the recommendation as he weighs whether to grant or deny Wood's clemency request, which would mean sparing him from execution and reducing his sentence to life in prison without the possibility of parole.

Vietnam | Woman sentenced to death for poisoning 4 family members with cyanide

A woman in Dong Nai Province in southern Vietnam was sentenced to death on Thursday for killing family members including two young children in a series of cyanide poisonings that shocked her community. The Dong Nai People's Court found 39-year-old Nguyen Thi Hong Bich guilty of murder and of illegally possessing and using toxic chemicals. Judges described her actions as "cold-blooded, inhumane and calculated," saying Bich exploited the trust of her victims and "destroyed every ethical bond within her family."

Afghanistan | Two Sons Of Executed Man Also Face Death Penalty, Says Taliban

The Taliban governor’s spokesperson in Khost said on Tuesday that two sons of a man executed earlier that day have also been sentenced to death. Their executions, he said, have been postponed because the heir of the victims is not currently in Afghanistan. Mostaghfer Gurbaz, spokesperson for the Taliban governor in Khost, also released details of the charges against the man executed on Tuesday, identified as Mangal. He said Mangal was accused of killing members of a family.

Afghanistan's Taliban rulers carry out public execution in sports stadium

The man had been convicted of killing 13 members of a family, including children, and was executed by one of their relatives, according to police. Afghanistan's Taliban authorities carried out the public execution of a man on Tuesday convicted of killing 13 members of a family, including several children, earlier this year. Tens of thousands of people attended the execution at a sports stadium in the eastern city of Khost, which the Supreme Court said was the eleventh since the Taliban seized power in 2021 in the wake of the chaotic withdrawal of US and NATO forces.

Utah | Ralph Menzies dies on death row less than 3 months after his execution was called off

Judge was set to consider arguments in December about Menzies’ mental fitness  Ralph Menzies, who spent more than 3 decades on Utah’s death row for the 1986 murder of Maurine Hunsaker, has died.  Menzies, 67, died of “presumed natural causes at a local hospital” Wednesday afternoon, according to the Utah Department of Corrections.  Matt Hunsaker, Maurine Hunsaker’s son, said Menzies’ death “was a complete surprise.”  “First off, I’d say that I’m numb. And second off, I would say, grateful,” Hunsaker told Utah News Dispatch. “I’m grateful that my family does not have to endure this for the holidays.” 

Iran carries out public hanging of "double-rapist"

Iran on Tuesday publicly executed a man after convicting him of raping two women in the northern province of Semnan. The execution was carried out in the town of Bastam after the Supreme Court upheld the verdict, the judiciary's official outlet Mizan Online reported. Mizan cited the head of the provincial judiciary, Mohammad Akbari, as saying the ruling had been 'confirmed and enforced after precise review by the Supreme Court'. The provincial authority said the man had 'deceived two women and committed rape by force and coercion', adding that he used 'intimidation and threats' to instil fear of reputational harm in the victims.

Burkina Faso to bring back death penalty

Burkina Faso's military rulers will bring back the death penalty, which was abolished in 2018, the country's Council of Ministers announced on Thursday. "This draft penal code reinstates the death penalty for a number of offences, including high treason, acts of terrorism, acts of espionage, among others," stated the information service of the Burkinabe government. Burkina Faso last carried out an execution in 1988.