Supreme Court Justice Antonin Scalia said "mere factual innocence is no reason not to carry out a death sentence properly reached." See Example(s)

Collected via e-mail and Twitter, February 2016

Did Antonin Scalia really say (or write), “Mere factual innocence is no reason not to carry out a death sentence properly reached.”





On 13 February 2016, Supreme Court Justice Antonin Scalia died unexpectedly on a hunting trip at the age of 79.

Shortly after his death, a quote of his began to make the rounds, purportedly excerpted from his opinion on a 1993 ruling, Herrera v. Collins. The issue in that case was whether an inmate could present new evidence to make a claim of habeas corpus, the ancient legal vehicle by which prisoners can seek relief from unlawful imprisonment.

Nine years after his conviction for shooting and killing two police officers, Herrera produced writs stating that he was innocent, and that his deceased brother had actually committed the murders.  Herrera’s last-ditch effort failed, but his case was then used by the Supreme Court in order to decide whether any inmate could use claims of new evidence to argue that their imprisonment violated their Constitutional rights. In other words, a claim of innocence based on newly discovered evidence — according to this decision — didn’t provide grounds for habeas corpus relief.

Justice Scalia is often quoted as having commented on this decision (in part):

Mere factual innocence is no reason not to carry out a death sentence properly reached.

In this instance, what’s important is not exactly what he said, but what he meant.

However, Justice Scalia’s words regarding that decision are often quoted out of context, leaving readers with the mistaken impression that he believed it was perfectly acceptable for our legal system to execute people whom we knew to be innocent. In the fuller context, what he was actually expressing was that once a person had been fairly convicted and sentenced in court, and had exhausted all his possible avenues of appeal, a last-minute claim of innocence was not by itself sufficient grounds for further delaying the carrying out of the sentence.

Scalia concurred with the court’s 6-3 Herrera v. Collins decision that a claim of innocence should not serve as the sole grounds for habeas corpus relief, stating in his written opinion that sufficient legal relief already existed for people presenting new evidence of innocence (not that factual innocence was irrelevant) and that ruling otherwise would impose an unmanageable burden on lower courts to review newly discovered evidence:

We granted certiorari on the question whether it violates due process or constitutes cruel and unusual punishment for a State to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be “actually innocent.” I would have preferred to decide that question, particularly since, as the Court’s discussion shows, it is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. In saying that such a right exists, the dissenters apply nothing but their personal opinions to invalidate the rules of more than two thirds of the States, and a Federal Rule of Criminal Procedure for which this Court itself is responsible. If the system that has been in place for 200 years (and remains widely approved) “shocks” the dissenters’ consciences, perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of “conscience shocking” as a legal test.

I nonetheless join the entirety of the Court’s opinion, including the final portion, because there is no legal error in deciding a case by assuming arguendo that an asserted constitutional right exists, and because I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. 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.

My concern is that in making life easier for ourselves we not appear to make it harder for the lower federal courts, imposing upon them the burden of regularly analyzing newly discovered evidence of innocence claims in capital cases (in which event such federal claims, it can confidently be predicted, will become routine and even repetitive). A number of Courts of Appeals have hitherto held … that newly discovered evidence relevant only to a state prisoner’s guilt or innocence is not a basis for federal habeas corpus relief … I do not understand it to be the import of today’s decision that those holdings are to be replaced with a strange regime that assumes permanently, though only “arguendo,” that a constitutional right exists, and expends substantial judicial resources on that assumption. The Court’s extensive and scholarly discussion of the question presented in the present case does nothing but support our statement in Townsend, and strengthen the validity of the holdings based upon it.