Death, part 2

Last week I argued that not many Americans actually love the death penalty so much that they are okay with killing innocent people. Yet there's good reason to believe that innocent people have been put to death, which raises the suspicion that innocent people will be put to death. So what do we do about it?

This is part of the context in which claims of "actual innocence" arise. Judge Kopf says that he would sentence a man he knows (or believes?) to be innocent to death in three situations: (1) where clear precedent forbids him to consider claims of actual innocence; (2) where there is a swift pardon process available; or (3) where the defendant sat on his rights and waived his opportunity to raise his claim of actual innocence.

But what does it mean for a judge to know that a defendant is factually, actually innocent? Well, it could be that there is a credible confession from another person. Or it could be that there is exculpatory DNA evidence that

In those cases, though, we generally rely on the prosecutor to agree that the conviction is unjust and to move the court to vacate the convictions. That's what happened in the Central Park jogger case, for example.  Judges aren't usually asked to make determinations of guilt or innocence. That's the role of the police, the prosecutor, the grand jury (in some cases), and finally and irrevocably, the jury.

Judge Kopf was originally motivated to post on the subject in response to another post by the Salon blogger Digby, who tore into Justice Scalia for his supposed belief that "he does not believe it matters under the Constitution if the state executes innocent people."

I share Judge Kopf's antipathy toward Digby's foolish and reductive characterization of Justice Scalia's position. Of course it "matters under the Constitution" whether the state executes innocent people. The question is: how do we determine innocence? If a person has been indicted, tried, convicted, and sentenced to death after a separate penalty hearing; then had that conviction and sentence affirmed after an opportunity to appeal the conviction, the sentence, and every evidentiary ruling underlying it; can the defendant raise, on a collateral attack of that conviction and sentence—in other words, on a petition for habeas corpus—the claim that he is actually, factually innocent of crime the jury convicted him for? In other words, can he get a new trial on the merits by federal judge after having been convicted of trial by state jury?

You could set up a justice system where the answer to that question is yes. Because "death is different," people should not be put to death until their claims of innocence are rejected by a jury at trial and by a judge in a trial on collateral appeal. Maybe that's what it would take to apply the libertarian principle underlying Blackstone's Ratio to the infinite finality of a death sentence.

But does the constitution require this? Scalia implies that he doesn't think so. He implies that he thinks the constitution requires a conviction by a jury of one's peers, and all other due process allowed for. This is far from a radical position. It's the idea that the best way we have come up with to figure out whether someone is "actually innocent" is a public trial with a jury of one's peers. Judges don't have some special access to the truth.

So here's where I come down on this. I'm opposed to the death penalty because I think the killing of innocents is inevitable and this outweighs any potential benefits of capital punishment. But I agree with Scalia that "actual innocence" isn't a colorable basis for collateral review (by a judge) of a punishment that has been imposed after trial and conviction by a jury. Actual innocence in that scenario is a basis for a pardon, or a basis to convince the prosecutor's office to vacate the judgment. Perhaps there's a role for judges to play in staying execution until colorable claims of actual innocence based on newly discovered evidence can be considered by the proper parties (prosecutor, governor, president). But I don't see judges playing a proper role as last-ditch re-triers of fact.