Executing the Innocent - UPDATE

Yesterday, the US Supreme Court ordered a Federal District Court to conduct an evidentiary hearing to determine whether there is credible evidence exonerating Troy Davis, a man convicted of first degree murder in Georgia in 1979, and sentenced to die.

Rather than focus on the facts of this case, I want to focus on a statement made by Justice Scalia in his dissent. He noted:

"This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial, but is later able to convince a habeas court that he is ‘actually’ innocent."

This is quite a remarkable statement. If I understand Scalia correctly, he seems to be willing to allow executions of convicted defendants who later prove that they are "actually innocent."

Some background. Our criminal justice system is a system of "imperfect procedural justice." This is in contrast to a system of "pure procedural justice" or "perfect procedural justice."

Pure procedural justice applies to circumstances where there is no identifiable just outcome. In such circumstances, the rules governing the relevant activity render the outcome that emerges just. There is no just outcome of a golf tournament. Any outcome is just - regardless of who wins or looses - if the rules are neutral and are applied fairly.

"Perfect Procedural Justice" applies to circumstances where a just outcome can be identified and there is a procedure guaranteeing the outcome. For example, if six equally hungry people pay equal amounts for a pizza, a just distribution of the pizza is equal shares. The procedure guaranteeing this outcome is letting the person who divides the pizza take the last slice - the best the slicer can do is an equal share.

"Imperfect Procedural Justice" is applicable in circumstances where a just outcome can be identified, but there is no procedure capable of guaranteeing the outcome. Justice would prescribe that the most efficient employee get the raise. But there is no way to guarantee this outcome, even if the boss wants it. The best a boss can do is set up a review procedure that makes the just outcome as likely as possible.

Criminal prosecutions fall into the last category. A just outcome is that all and only guilty people are convicted, and all and only innocent people are acquitted. Unfortunately, there is no procedure that can guarantee this outcome. Instead, we set up a system designed to generate this outcome as often as possible - while also protecting certain fundamental rights of accused persons. We then respect, as a matter of law, the results of this procedure, whatever they are, and count them as justice.

However, any system of imperfect procedural justice is going to face practical constraints, one of which is the need for finality. Our justice system incorporates numerous safeguards for criminal defendants, including the right to appeal and the right to file a writ of "Habeus Corpus" and present evidence to a court that you are being wrongfully imprisoned. However, judicial resources are finite. At some point the process must end. At some point we have to say, the process was fair so the result must stand - knowing full well that in many individual cases, the result will be incorrect.

I'm okay with all that. And I suppose that, as far as it concerns the issue of finality, Justice Scalia has a point.

Still, it is awfully disturbing that a sitting justice of the United States Supreme Court could coldly state, without even a hint of regret or remorse, that that there is no constitutional rule against the government executing a person who has new evidence sufficient to convince a federal judge that he is actually innocent.
One would think that, regarding executions, which are irrevocable, evidence of actual innocence in particular cases would trump our systemic and general need for finality. And if there's no constitutional rule preventing the execution of actually innocent people, there sure as hell ought to be.

In fairness to Scalia, he doesn't think Gray's evidence is any good. But that doesn't change the fact that Scalia apparently thinks that it is okay if manifestly innocent people are executed, if that serves the system's need for finality.

Joe H.

UPDATE: For those of you who are interested, here is an excellent discussion of Scalia's "actual innocence" remark. It relates to a specific legal application of the "imperfect procedural justice" analysis described above.