Scalia says Constitution Does Not Forbid Execution of Innocent

An article today reported on a most unusual order from

the United States Supreme Court during its recess.

"The Supreme Court, over two Justices’ dissents, on

Monday ordered a federal judge in Georgia to consider

and rule on the claim of innocence in the murder case

against Troy Anthony Davis (In re Davis, 08-1443)

The Court told the District Court 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.” His original trial was

18 years ago.

"The action was highly unusual, because Davis had

filed what is called an original writ of habeas corpus

— that is, a plea for his release, filed directly in the

Supreme Court rather than in lower courts.

Such claims rarely succeed. Justice Scalia noted

in his dissent that the Court had not taken a

similar step “in nearly 50 years.”

Scalia also wrote in his 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. 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.

The Constitution does not talk about executions

at all; the 8th Amendment simply prohibits

cruel and unusual punishments. It certainly

could be forcefully argued that executing an

innocent was in fact cruel and would not be

acceptable to the vast majority of the population.