Scalia Says Innocence Doesn’t Matter In Execution Sentence

by Ben Hoffman

This guy never ceases to amaze me. From the man who gave George W. Bush the presidency, another WTF from Antonin Scalia!

On Monday, however, the Supreme Court took the atypical step of issuing a major ruling during its summer break, ordering a federal trial court in Georgia to review the case of death row inmate Troy Davis to decide whether new evidence, not available at trial, establishes Davis’ innocence.


Davis was convicted 18 years ago for the 1989 murder of a Savannah, Ga. police officer. Attorneys for Davis argued in their appeal that since that time, seven of the witnesses who helped to condemn Davis have recanted on their testimony.


Justice John Paul Stevens was joined by Justices Ruth Bader Ginsberg and Stephen G. Breyer in supporting the order to review the case. “The substantial risk of putting an innocent man to death,” Justice Stevens wrote in his opinion, “clearly provides an adequate justification for holding an evidentiary hearing.”

Scalia vehemently disagreed with Stevens. His opinion suggested a certain callousness on the question of whether the courts should care if the state puts an innocent man to death, but he was right when he said the Supreme Court has never ruled whether an individual’s “actual innocence” necessitates the involvement of a federal court in a state conviction. Scalia wrote in dissent, “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.” He also said that Davis’ appeal would be a “a sure loser” once it was examined again.

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