CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, August 20, 2009

Dershowitz and Campos on Justice Scalia and the Death Penalty

Dershowitz Alan Dershowitz (Harvard Law School) argues that Justice Scalia's views on innocence and the death penalty are incompatible with Catholic thought in a post at The Daily Beast. Here's the language from Justice Scalia's recent opinion in the Davis case that Dershowitz flags:

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.”

Campos Paul Campos takes Justice Scalia on in another post on The Daily Beast:

Scalia takes the position that, from a legal perspective, it no longer makes the slightest difference whether Davis is innocent of the murder he was convicted of committing, and for which, in all likelihood, he will be executed. If a defendant got a fair trial in state court, there’s nothing the federal court can do, Scalia argues, to reverse that verdict—even if new evidence comes to light that convinces the court to a moral certainty that the defendant is innocent.

Scalia represents an extreme example of a certain kind of judge that positively revels in coming to conclusions that are morally revolting but “legally” sound. Judges of this type like these sorts of cases because they demonstrate that law is a supposedly nonpolitical and intellectually rigorous practice, rather than a touchy-feely exercise in doing what strikes the judge as the right thing.

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