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Justice Scalia Pardoned

by Jay Marshall Wolman

From time to time, I read the blog “A Public Defender” by the pseudonymous Gideon.  Today, in the wake of Justice Scalia’s death, he decided to post a dyslogy highlighting the concurrence in Herrera v. Collins.  Gideon summarizes it as follows:

In other words, in Scalia’s opinion, our Constitution would let stand the execution of an innocent man who has received all the due process our society deems adequate and there is nothing that Federal courts can or should do to stop such an execution.

An anonymous commenter also highlighted Justice Scalia’s dissent in In re: Davis:

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 habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

Gideon and the anonymous commenter appear to paint Justice Scalia as having been indifferent to the lives of the actually innocent.  He was not:  as the majority in Herrera wrote, with which Justice Scalia concurred:

Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. …This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution–not to correct errors of fact….This is not to say that our habeas jurisprudence casts a blind eye towards innocence. …[T]his body of our habeas jurisprudence makes clear that a claim of “actual innocence” is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits….Executive clemency has provided the “fail safe” in our criminal justice system. … It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after discovered evidence establishing their innocence….Our federal habeas cases have treated claims of “actual innocence,” not as an independent constitutional claim, but as a basis upon which a habeas petitioner may have an independent constitutional claim considered on the merits, even though his habeas petition would otherwise be regarded as successive or abusive. History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.

The question for Justice Scalia (and the Court) was not whether we should execute those who may be actually innocent, but only whether the judiciary, through the Great Writ, could stop an execution in its tracks to adjudicate whether a person proven guilty beyond a reasonable doubt is actually innocent.  His opinion was one of law–that the writ of habeas corpus was not the proper vehicle.

What Gideon overlooks is the sentence that immediately followed the one he highlighted in bold print:

With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.

It must not be forgotten that the judiciary is not judge, jury, and executioner–the latter is reserved to the executive branch, the branch that possesses the powers of clemency and pardon, a branch that is accountable to the people and the political process.  If an innocent person is put to death, it is not the fault of the judiciary, but rather the executive who turned a blind eye to evidence of actual innocence and the polity who elected that executive.  And, it has been 23 years since Herrera–if Congress felt the Supreme Court unfairly foreclosed a judicial remedy in the case of actual innocence, why hasn’t there been a law creating a judicial pathway, such as an amendment to Fed.R.Crim.P. 33(b)(1) eliminating the deadline to seek a new trial?  When Lily Ledbetter was found to have brought her claim for unequal pay too late, Congress immediately responded.

Justice Scalia wrote what the law is, and those condemning him should show how he was wrong about the extent of the writ of habeas corpus, which by and large they do not. And, those condemning him should be condemning executives and legislatures that do not make it easy for someone to prove actual innocence.  If you care about innocents being executed, focus your energies on those pulling the trigger–the executives.  Convince them not to carry out the execution.  Campaign against those who would execute those you believe are actually innocent.  Blaming a judge for interpreting the bounds of existing law doesn’t make the convict any less dead.

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