Supreme Court

Supreme Court Grants Cert to Hank Skinner


The Supreme Court has granted certiorari to Hank Skinner, a Texas death row inmate who is trying to get access to DNA evidence that he claims will clear his name.

The Court has already ruled that there is no constitutional right to post-conviction DNA testing, but Skinner's claim is that he's entitled to the testing under federal civil rights law.

Interestingly, it was Justice Scalia who first stayed Skinner's execution in March. Scalia has written in a couple of opinions now that the U.S. Constitution does not prohibit the government from executing an innocent person.

I wrote about Skinner's case in February.

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  1. the U.S. Constitution does not prevent the government from executing an innocent person.

    “Prevent” or “Prohibit”? That may prove to be useful to know, one of these days.

    1. I would have to agree that the distinction is important. Based on what I’ve read about that other dude in Texas from the New Yorker, it’s already failed to prevent.

  2. I think Scalia is pointing out that the due process clause is not a guarantee of results, only of process. A trial that provides due process can nonetheless result in the conviction of an innocent person.

    Appellate courts can rule on process, but are very poorly position to rule on the facts, seeing as they hear no testimony. That’s why appellate courts (almost?) never order that someone who is convicted be released, but instead typically remand the court back to the trial court.

    1. I think Scalia is pointing out that the due process clause is not a guarantee of results, only of process. A trial that provides due process can nonetheless result in the conviction of an innocent person.

      One other thing that should be pointed out is that the constitutional and good do not always coincide, just as unconstitutional and bad do not always coincide.

      See the Korematsu decision for one example.

  3. Good point. I’ll change.

  4. I’m probably in the minority around here, not having a problem with the death penalty, but I have no problem with one or two extra DNA tests. Not that it should be a Constitutional right, but it seems like a sensible precaution.

    1. The trouble is, unless it’s legally mandated in some way, it can be very hard to get. It’s not like most prosecutors are going out of their way to ensure they’ve got the right guy.

      1. I have no problem with it being legally mandated, but am reluctant to make it a Constitutional right.

        1. Why? What is the reason for such reluctance?

          Just curious

          1. I believe the proliferation of newly-discovered Constitutional rights in recent decades has actually undermined the Constitution.

  5. Isn’t it executing and innocent person “cruel and unusual punishment”? Or shouldn’t it be?

  6. Isn’t it executing and innocent person “cruel and unusual punishment”?

    I think I could be persuaded to think so.

    1. An overwhelming majority of the world thinks executing any person is cruel and unusual punishment, and I agree with the world.




  8. the U.S. Constitution does not prohibit the government from executing an innocent person.

    Self-evident really. You can’t actually have a system where anyone who claims innocence can guarantee a full hearing by the US Supreme Court. No matter what you do, you’ll design a system with gatekeepers and a process. The Constitution can mandate a fair and due process, but it can’t possibly be read as to prohibit the system from being imperfect.

    Systems with more room for judgement and leeway have their downsides as well, as since that judgement is going to be used on the behalf of the politically more well-connected.

    1. This slippery slope argument is frivolous, because death penalty punishments are final. The state can grant restitution to a person it falsely imprisons, but it obviously can’t compensate somebody after it wrongly kills them.

  9. I’ve found 2 libertarian justifications for chucking the dearh penalty to the curb. It’s the ultimate use of state power over an individual, and we all know the system is far from perfect. I definitely respect the creed that it’s better to let 1000 guilty men go free than wrongly put an innocent man in jail. X1000000000000000000 when the death penalty is concerned. It’s also terribly irresponsible fiscally. It’s FAR more expensive to house an inmate on death row, and only the victim’s family MAY have some sense if served justice, whereas us taxpayers pay inordinate amounts of money for the benefit of just a handful of people. The death penalty is a tax money drain, and when we consider that most inmates on death row don’t actually get put to death, one must question how much money could have been saved had we just put them in gen pop for good.

    1. Well, the argument that the death penalty is too expensive is a bit disingenuous, because generations of death penalty opponents have helped make it expensive. It’s a bit like nuclear power opponents using the expensive license/permit/environmental impact report process as an argument.

      1. I take your point, but would you feel comfortable making it easier for the state to execute people? Especially given that the expensive appeals process currently acquits so many people from death row?

        It should be expensive to execute people in a free society; this isn’t China.

  10. Isn’t it executing and innocent person “cruel and unusual punishment”? Or shouldn’t it be?

    Any punishment of an innocent person is cruel and unusual.

    But the constitutionality of punishments is evaluated based on the assumption that the punishee is guilty, because (judicially) they are.

    Otherwise, every con in the country could mount a “cruel and unusual” challenge as a way of getting their case retried.

  11. People who support the death penalty should be forced to read Radley Balko’s reports on our justice system for a few weeks.

    I have no sympathy for cold-hearted killers, rapists etc. My opposition to the death penalty is purely practical–our justice system (or probably any justice system) is too imperfect and corrupt to allow for such irreversible punishments.

    1. Every incarceration is irreversible to some degree. That ten years you spent banged up because a jailhouse snitch perjured himself? You’re never getting that back.

  12. There is so much more to this killer at He’s not the innocent victim here. It’s too bad this is the test case.

  13. If you are going to post the site that plagiarizes the one Skinner has had up for years, at least post Skinner’s site too. In the fairness of open disclosure of course.

  14. He’s not plagiarizing anything. He has permission to use the template and all the docs are public records.

    And, no, he doesn’t have to promote Skinner’s site. Fairness? Open disclosure? As if you have ever linked to anything that has questioned skinner’s lies before.


      Feel better? There was no sense in me posting it before, it was already posted. I’ll go ahead & apologize for my error of double posting the link I did earlier, it was purely accidental, as I was learning this site.

      If permission has been given then fine, however, can you point me to THAT documentation? The site only recently appeared shortly around the time Skinner received his stay from the Supreme Court & I am a well aware that biased opinions travel both ways, so I am more than a little leery. (Which is why I linked the ORIGINAL site to begin with.)

      (Note: After previewing my comment, it appears I have some kind of weird issue with links. It is showing for me that regardless of the order that I list the sites, the first one never shows as a link. Or does it just work that way?)

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