Thursday, September 22, 2011

No Justice for Troy Davis

Despite the best efforts of thousands advocating on his behalf, the State of Georgia ended the life of Troy Davis last night. Considering the numerous evidentiary problems in the case, the standard of reasonable doubt about his guilt has long since passed. You'd think that even death penalty advocates would see it as in their interest to make sure no one is executed under such circumstances, but if you thought that, you'd be wrong.

This morning Matt Yglesias draws our attention to a 1993 opinion by Justice Scalia, whisch asserts:
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.
The rest of the opinion is rife with Scalia's characteristic snarkiness, including this gem:
If the system that has been in place for 200 years (and remains widely approved) "shocks" the dissenters' consciences, post, at 1, perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of "conscience shocking" as a legal test.
Now I'm no legal scholar, but as I recall the Constitution, it seems like there's some sort of prohibition on "cruel and unusual" punishment. I know that Justice Thomas, for one, makes use of that "and" to argue for allowing punishments that are cruel, but not so unusual. But this case should probably satisfy both requirements. After all, as Scalia wrote in that same opinion:
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.
Perhaps the justice needs to recalibrate his faculties for estimating probabilities.

1 comment:

  1. The death of Troy Davis is an immense personal sadness for me, as more by accident than design, I had had an intermittant correspondence with him over the last several years. I wouldn't claim any extraorinary closeness but I would say that we were friends, given the constraitns of the situation and I feel this less as a legal travesty than a simple, personal loss. I did a blog post about the last day of his life here, one of several I've done in recent days, should anyone be interested.