Readers probably remember that I am against the death penalty.   My main objection is that it effectively short-circuits appeal rights.  Sure, people sent to death row get a lot of appeals, but those appeals are relatively narrow in time, say over 8-10 years.  Would 10 years of appeals help a black man put wrongly on death row in Alabama in 1955?  It wasn't until 20-30 years later, or even 50 years later, that both society and technology have changed enough to free a lot of people in jail.  Just look at how many people the Innocence Project has helped to free, and how many are starting to be freed with DNA.

In this context, I found this statement (via Stephen Littau of the Liberty Papers) particularly frightening.

"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." "“ From the dissenting opinion by Justices Scalia and Thomas on the question of whether death row inmate Troy Davis should receive a new trial after 7 eye witnesses against him recanted their testimonies against Davis.

If innocence does not matter, what the hell does??


  1. Not Sure:

    "If innocence does not matter, what the hell does??"

    I think the answer is crystal clear- not having to admit that you (the government) made a mistake.

  2. James:

    well... errr... give... Scalia ... credit?... for sticking to his strict textualist view?

  3. Gorgasal:

    In addition, DNA evidence is running into problems:

  4. mahtso:

    I think you are miscontruing the issue (as are many others). As I understand it, there isn't proof that Mr. Davis is innocent, but rather a claim that he is "actually innocent." Justice Scalia detailed the number of times that Mr. Davis's claim (of actual innocence) has been rejected (not just by the Georgia Supreme Court, but also by a Federal Appeals Court, and the State Board of Pardons and Paroles).

    This is an issue of Federalism and whether or not a federal court should interpose itself in a state criminal matter. And for what its worth, Justice Scalia was of the opinion that if the Supreme Court wants the federal courts to be involved, it should have put the matter on its own docket, not send it to a District Court that (in Justice Scalia's opinion) has no authority to grant any relief.

  5. Cloudesley Shovell:

    You've touched upon the scariest part of the criminal law. A verdict of guilty will be affirmed on appeal if the evidence admitted at trial was properly admitted, and reasonable jury could have found guilt beyond a reasonable doubt on the basis of that evidence. Actual guilt is not required. Even if only one or two juries out of ten would convict on certain evidence, so long as those juries do not act unreasonably (in the view of the appellate court), the verdict will not be overturned. That's why guilty pleas are so sought after--it relieves the system and the players within it of that unspoken fear of sending an innocent person to prison.

    If you do further reading about this case, it's easy to see why the guilty verdict has been repeatedly affirmed (and why Scalia called further appeals sure losers). Probably one of the most harmful facts against Troy Davis is that almost immediately after the shooting, he fled to Atlanta, hundreds of miles away. Such conduct is always admissible as evidence of consciousness of guilt.

    I express no opinion about this particular case--that's for the jury and the various courts that have reviewed ALL of the facts. It will be interesting to see how this one will turn out.

  6. Sean:

    This is an old old quote that has been bandied about on the left side of the internet. I think the commenters above give a great context for it. It is essentially a comment upon epistemology-as-law. If actual innocence or guilt mattered, I doubt pleas would exist at all.

  7. Not Sure:

    "That’s why guilty pleas are so sought after–it relieves the system and the players within it of that unspoken fear of sending an innocent person to prison." - Cloudesley Shovell

    I think "the system and the players within it" are not so much concerned about sending an innocent person to prison as they are of being found the one(s) responsible for it happening.

    Guilty pleas are a great way to do this. "Admit guilt and you'll get 5 years with probation after 3, or go to trial and risk getting 20" provides an awfully strong incentive for an innocent person to admit guilt. And if the newly-minted convict later claims innocence and provides proof, the system/players can all say "But he admmited he did it- how were we to know?"

    Not to mention the fact that pleas mean less work for the system, what with avoiding the fuss of a trial and all. And an added plus on top of that is a steady stream of "customers" for the prison industrial system.

    Or maybe I'm just cynical- your call.

  8. NormD:

    Death penalty opponents are not opposed to killing defendants, they just want it to be accomplished by aging to death in prison.

    The fundamental problem is that we sometimes lock up innocent people and we make every effort to not do this. The justice system is as screwed up as our educational system of medical system. It should not cost so much and take so long to decide if a person is innocent or guilty and what the appropriate punishment is.

  9. Roy:

    Haven't been reading Coyote long enough to have good understanding of his take on capital punishment. But do recognize (and endorse) one feature that stands out in many of his posts: not mere acknowledgement that choices have costs, but insistance that this connection holds.

    Surely that connection must hold in attempting to achieve accurate convictions. Eg, as several have already noted, what drives plea bargining is cost control. Not morality, but money.

    Just as perfect medical care has costs, so does perfect justice: too much. Of course one must observe that in the case of least cost justice (say decisions by a coin flip), there might result not merely monstrous decisions, but monstrous costs to the group whose interests are served by they justice system they pay for.

    So the justice issue hinges on reaching a considered balance. True also regarding capital punishment.

  10. LoneSnark:

    In case everyone has forgotten, there is a channel for actually innocent people to get out of jail in the event that the appeals process fails to do so: it is called a pardon, and every governor in the nation is charged with wielding this power to prevent the miscarriages of justice so common in every judicial system that has ever existed.

  11. Dr. T:

    Almost everyone is getting this wrong. Scalia and Thomas correctly point out that the Constitution contains no remedy for redressing the conviction of an innocent person if the trial itself was fair. That does not mean that the innocent person must be imprisoned or killed. It just means that the Supreme Court cannot solve the problem. In some states a special appeals court can handle this type of issue. In all states the governor can issue a full pardon (as LoneSnark mentions above).

    Scalia and Thomas are taking much heat over this, but only because the media (through ignorance or dislike of strict constructionist justices) is not reporting accurately.

  12. rxc:

    I had a lawyer friend explain to me once the difference between the American system of justice, and the one that works here in France. In the US, the system is structured to ensure that the process is fair, and "truth" is a secondary consideration that is supposed to emerge from the process. Here in France the system is structured to determine the truth, and they are allowed to examine all those bits of evidence that would be otherwise thrown out in the US, because they were not gathered "fairly".

    This does not mean that the French always come to the correct conclusion, but to point out that in the US, "truth" is not the goal, fairness is, and guilt and innocence emerge from the fairness of the process, without consideration of all of the "facts" in the case. I think this is what is causing this problem, because the trial in this matter was determined to be fair, so the result can only be corrected by the state governor now, not by the legal process, which worked just as expected.

    If we start to insinuate all the facts into the legal process now, that could become a slippery slope where all sorts of evidence that is now excluded (think about illegal searches) could then be included in the proceedings, with dire consequences for defendents. I read a lot of legal blogs, and it is amazing to me how many important court decisions arise out of questions regarding the inclusion of evidence into a trial, ant not the actual guilt or innocence of the accused. US courts have set up an amazingly byzantine set of rules about what can and cannot be admitted, especially with regard to vehicles, and the case discussed here highlights this situation quite well.

  13. Gil:

    Well, so what NormD? There are plenty of people in jail who deserve to be there. Of course, you might ask: what of the person who was found innocent after 30 years in prison? Such a person has lost a good portion of their life (especially their prime earning years), is this not similar to a wrongful execution?

    On the other hand, is this akin to the concept of 'limited liability'? Suppose the question of a person going to prison for life or getting executed is ultimately up to a jury - if the jury got it wrong should they be ultimately held accountable? Should those twelve be the ones responsible to compensate the innocent person? The Constitutional clause seems to provide 'liability insurance', especially to the jury, if they convict an innocent person.

  14. Henry Bowman:

    Well, I suspect that Scalia and Thomas are correct in their interpretation of the Constitution. Which probably means that a rather thoughtful amendment is in order.

  15. Kevin Spires:

    Typical type I vs type II error trade off. We will convict people who are innocent, but also let many people go free that are probably guilty. The U.S. system, with a presumption of innocence and a "reasonable doubt" standard already tilts the justice system towards letting far more people go free who are probably guilty than it convicts people who are innocent. Which is higher - the number of executions (much less the # of innocents executed) or the number of released convicted murderers who murder again?

  16. NormD:


    You are misunderstanding me. I am saying that many people who are opposed to the death penalty are not opposed to putting someone in prison for life, which is just Execution by Prison. They think that the ultimate travesty would be to execute an innocent person but I am sure we have executed many innocent people by having them die in prison.

    I am APPALLED by the inefficiency of our legal system where innocent people can be locked up by for years while the legal system slowly grinds away. People deserve swift, fair justice where the law comports at some level with our inner compass of what is right and wrong.
    If a person is guilty of a heinous crime, I have no problem with executing them, as long as we are damn sure they are really guilty.

    Our justice system resembles an odd religion with priests and acolytes and obscure religious texts.

    I listened to an interview with the author of the new book Three Felonies a Day who claimed that many of our laws are so overbroad that a prosecutor can charge any American with multiple felonies for doing things that no one has any idea are illegal (wire fraud, conspiracy, mail fraud)

  17. me:

    Fantastic illustration of the difference between the American "innocent until proven guilty" and the original latin "in dubio pro reo". The former can be seen (and has been interpreted by SCOTUS) as "once you've been convicted, that's it" by applying a lower standard of "proof", whereas the latter takes a clear stand on behalf of individual rights over state powers: "if there's any doubt, we'll leave you alone".

  18. Gil:

    Yeah, yeah, NormD. It's unfortunate if an innocent person get convicted but it's also unfortunate if a criminal gets set free. The only solution to stop innocent people being convicted is to not have a justice system at all. Besides those 'many people' believe that when a person is in jail for life there's a chance the case can be reopened as the innnocent person can be set free (which has happened).

  19. epobirs:

    The Innocence Project is a bit less talkative about those who claimed innocence but turned out to be entirely guilty when DNA evidence was brought into play.

    The blade cuts both ways.

    If you want better quality of justice, press for better quality of evidence and procedure. We have vastly more murders walking the streets than innocents in prison. Especially when you consider that most innocents in prison only got there because they had a history of guilt for other offenses that drew suspicion toward them.

  20. markm:

    "Scalia and Thomas correctly point out that the Constitution contains no remedy for redressing the conviction of an innocent person if the trial itself was fair."

    And they define a "fair" trial to include one where the prosecution has bribed and intimidated the witnesses. Seven of the witnesses against Troy Davis have recanted since.

  21. mahtso:

    "And [Justices Scalia and Thomas] define a “fair” trial to include one where the prosecution has bribed and intimidated the witnesses. Seven of the witnesses against Troy Davis have recanted since."

    I did not notice that when I read Justice Scalia's Dissent; could you provide me a page number so I'll be sure to see it when I re-read that Dissent?

    How much credence can be given to what people who say they lied under oath (at a murder trial, no less)are saying now? Are they lying now or were they lying then or both?