Dershowitz Corners Scalia on Death Penalty, Catholic Faith

Over at The Daily Beast, celebrity legal brain Alan Dershowitz tosses a provocative salvo in the direction of U.S. Supreme Court Justice Antonin Scalia. Earlier this week, the Court ordered (PDF) a federal judge to hold an innocence hearing for Troy Davis, a Georgia man convicted of murder and sentenced to death. Since Davis' conviction, a number of eyewitnesses have recanted their testimony, casting new doubt on Davis' guilt.

Joined by Justice Clarence Thomas, Scalia dissented from the order (PDF) arguing that the U.S. Constitution guarantees only a fair trial. Once that requirement has been satisfied, actual innocence is irrelevant, even if you can prove it, even if you're scheduled for execution.

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.

Scalia made a similar argument in Herrera v. Collins in 1993 (again with Thomas joining him). Though Justice Sandra Day O'Connor wrote in a concurring opinion that a majority of the court held the view that the Constitution doesn't permit the execution of an innocent person, that wasn't the holding in the case, so the Court has never explicitly ruled one way or the other.

Dershowitz begins his challenge to Scalia with a hypothetical:

Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: "Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she's dead, and as for you, Mr. Innocent Defendant, you're dead, too, since there is no constitutional right not to be executed merely because you're innocent."

Putting the legal issues aside, Dershowitz then gets intriguingly personal. He points to a 2002 essay Scalia wrote for the journal First Things in which Scalia explains that if the Constitution ever contradicted his Catholic faith, he would have no choice but to resign from the Court. Despite the Church's general opposition to the death penalty, Scalia explained, he could justify upholding death sentences because the Church doesn't outright prohibit capital punishment, it merely discourages it.

That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign. And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty (most of them would not be elected); if American Catholics running for governor had to promise commutation of all death sentences (most of them would never reach the governor's mansion); if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty; or if American Catholics were subject to recusal when called for jury duty in capital cases."

But as Dershowitz points out, to say there's nothing immoral about capital punishment in principle is quite a different proposition than to say there's nothing immoral about upholding the execution of a factually innocent person.

…whatever the view of the church is on executing the guilty, surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution. How could he possibly consider that not immoral under Catholic teachings? If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?

I suspect Scalia's answer would be that his only moral obligation as a judge is to ensure that a defendant has been given a fair trial with adequate constitutional protections. Once legal guilt has been established, the moral decision of whether or not to carry out the execution of someone with a strong factual innocence claim falls on the governor or pardon board. Any governor, for example, would of course immediately pardon the man convicted of murdering his still-living wife.

But given the pace of exonerations we've seen over the last decade, subjecting a strong innocence claim to the whims of an elected official or appointed pardon board doesn't feel like a particularly satisfying answer. Derschowitz seems to have cornered Scalia here, though. I'm not sure what other response he could give.

Any Catholic scholars out there want to take a crack?