Wednesday, August 19, 2009

Scalia Puts Form Over Substance - Innocence isn't a Defense

An apparently innocent man is about to be executed. But even if he can prove his innocence, Scalia says that innocence isn't a defense (from Time):

In his dissent, Scalia wrote, "This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."
Basically, as I understand this, Scalia is saying that in the Supreme Court processes, innocence is not a defense against being executed.

Yes, the rules of law and the procedure, GENERALLY, need to be the way to go. This is true in all 'rational' organizations, that is, organizations based on the idea of the rule of law. The intent is to make sure that people are all treated fairly. People in the same circumstances should get the same treatment. Officials shouldn't arbitrarily decide who gets benefits and who doesn't.

But systems are just systems. When it is clear that the system has failed - a student's application was turned down because the system wasn't designed to account for her atypical situation - it's time for humans to step in, use their judgment to show that the intent of the rules is being subverted by the rules.

And when it comes to executing an innocent man, it would seem more than obvious, except to people who are so wrapped up in the process that they miss the whole purpose of the process.

Here's one overview of the whole story from Time.

[This is a post I normally would spend a lot more time on to make sure I have my facts right. But my image of Scalia is such that I believe this outrageousness and I've checked several sources (albeit briefly) that I'm just going to post.]

Update, August 20: I put the bracketed note above because I know that Scalia, however much I might disagree with him, is very smart, and that there must be more to the case. My son sent me a link to a commentary on this at Obsidian Wings by an attorney who gives more background. While he seems to support my conclusion, there is some legal precedence involved that does make it a little more complicated. Partly he's saying Scalia's view follows someone named Bator who argues that guilt and innocence are ultimately unknowable and so our proxy for the truth here is the jury's verdict. But this argument was made before DNA offered us another test of truth. There's a lot more. You can read the whole analysis at the link. Here are a few quotes:

The Court’s “original habeas” jurisdiction is one such exotic source of authority. To give you an idea of just how obscure it is, the Supreme Court had not exercised its original habeas jurisdiction since 1925. You have probably heard about Supreme Court “habeas” cases, but those are all cases that were decided by a lower court and that the Supreme Court has adjudicated pursuant to its certiorari jurisdiction.

The explosion of Warren-era habeas litigation provoked several conservative critiques, including a particularly influential article by Professor Paul Bator. Bator’s position remains the modern “conservative” (or “federalist”) paradigm for habeas adjudication. Bator argued that “ultimate truth” is unknowable. What we mean by “guilty,” Bator argued, is that some quantum of reliable procedure has produced a legal determination that someone has committed a crime. Bator’s point really an epistemic one [Ah yes, the post the other day on the need to study philosophy talked about epistemology which studies 'truth' and how we know it] involving the limits of human inquiry – that the criminal justice system ensures correctness by proxy of reliable procedure.

Here’s the rub. Under that paradigm, the question of whether someone is “actually innocent” is incoherent, because it presumes a god’s-eye view of guilt that is not tethered to the judicial processes that produce that verdict. Those subscribing to Bator’s paradigm (including Scalia) argue that the freestanding innocence question is not “whether a state may constitutionally execute an offender known to be innocent,” but “whether an offender, whose guilt has been determined beyond some threshold of certainty, has a constitutional right to a federal forum to retest his conviction when guilt seems less probable.”. . .

Bator's argument has several problems. First, Bator’s critique is persuasive only within a certain band of uncertainty, and we don’t always operate in that band anymore. When the only thing that a freestanding innocence claim demanded was consideration of new (often stale) witness testimony, then one could persuasively argue that federal habeas review created incremental procedure without a corresponding incremental benefit.

That argument is dated in the era of DNA evidence. DNA evidence, while not that panacea many seem to think it is, brings us as close to “ultimate knowability” as we can come. . .
Second, one of the central but implicit conceits of the Scalia/Bator argument is that state and federal process produce equally accurate results. State postconviction review and clemency – so the argument goes – render concerns about executing innocent offenders moot. That position is virtually indefensible, especially in capital cases. We know that innocent people are convicted of crimes, both as a matter of statistical certainty and with respect to specific defendants (Timothy Cole). State judges are elected, often running with “tough on crime” platforms. Allowing a murder to go unpunished is a cardinal sin in many jurisdictions. For a murder conviction to be set aside on state postconviction review, an elected judge would have to let a convicted murderer go free. In many states, the postconviction judge reviewing the conviction is the same judge that presided over the convicting court. State court systems sometimes include separate civil and criminal supreme courts. A state criminal supreme court faces even more intense political pressure to be “tough on crime,” because criminal matters are its docket’s exclusive subject matter.
The whole discussion is at Obsidian Wings.

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