A shocking dissent by Scalia and Thomas

Two US Supreme Court Justices claim that there is no constitutional right for the innocent not to be executed.

On 17th August, two of the most senior judges in America expressed their view that it was not necessarily unconstitutional to execute a man who has been proved to be innocent. Justice Antonin Scalia, writing a dissenting opinion for himself and Justice Clarence Thomas, claimed there was “considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable”.

Happily, however, despite the horrifying stance of Justices Scalia and Thomas, the Supreme Court has now ordered a federal judge in Georgia to consider the innocence claims of Troy Davis, who faces execution after 18 years on death row.

The Court instructed the Georgia judge to “receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis'] innocence.” Grave doubt has been cast on the guilt of Davis, who convicted in 1991 of the murder of a police officer, after seven of the nine witnesses at his trial recanted their evidence.

'Fool’s errand?!'

According to Justice Stevens, “the substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing”. This risk, however did not appear to be sufficient justification for Scalia, who labelled considering the new evidence a “fool's errand”.

Justice Scalia’s controversial view is that the US Constitution does not forbid the execution of a person who is able to convince a habeas court that he is ‘actually’ innocent, as long as he has been previously convicted in a full and fair trial. This, in effect, means that a person has no constitutional right to a reprieve from execution even if later evidence categorically proves they are innocent.

If this view was to find favour with the majority, incontrovertible proof (such as a DNA test) that your client is innocent would no longer be the Holy Grail for capital defence lawyers. As long as the prisoner had a full and fair trial when first convicted, it would not matter what evidence came to light during the ten or twenty years which most prisoners spend awaiting execution.

‘Actual innocence’

In his argument, Scalia expressed doubt as to the concept “that capital convictions obtained in full compliance with the law can never be final, but are always subject to being set aside by federal courts for the reason of ‘actual innocence’.” Many of those working in the field of capital defence would hope that a death sentence is never final until the absolute last moment of execution – and many people have been saved with only minutes to spare.

It is important to bear in mind that this discussion is not a mere academic point of constitutional law. As DNA and forensic technology improves every year, more and more evidence of miscarriages of justice comes to light. CCTV tapes are unearthed, new witnesses found, or a new defence team will explore previously overlooked angles of defence. The prospect of new evidence of innocence being found years later is real. Such new evidence does not undermine the original trial process – it simply allows the criminal justice system to correct errors, without assigning blame.

It is vital that this evidence can be put before a judge, even if there was no procedural flaw in the original trial which entitles the prisoner to an appeal. The idea that evidence of innocence should give way to technical niceties is shocking to any reasonable person. Executing innocent people can never be fair, even if their original trial was.