Dershowitz, Scalia, and Executing the Innocent
Writing in the Daily Beast, Harvard Law Professor Alan Dershowitz challenged Supreme Court Justice Antonin Scalia to a debate about Catholic moral theology. Dershowitz deeply disagrees with a dissenting opinion in which Scalia (and Thomas) expressed doubts about whether the Constitution protects the right of a condemned prisoner who already had received a full and fair trial to additional collateral review of his case, in a habeas corpus proceeding based on a new claim of “actual innocence.”
Dershowitz thinks Scalia and Thomas are wrong about the Constitution. More interestingly, however, he thinks they are bad Catholics. He writes: “It would be shocking enough for any justice of the Supreme Court to issue such a truly outrageous opinion, but it is particularly indefensible for Justices Scalia and Thomas, both of whom claim to be practicing Catholics, bound by the teaching of their church, to do moral justice.”
He goes on to opine, “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.”
Dershowitz is right that intentionally killing an innocent human being is a grave sin. But in Catholic thought (unlike some versions of criminal law), “intentionally” does not mean “foreseeably.” Moreover, Catholicism takes seriously the nature and limits of role-related obligations. Consequently, when a judge does his job, following just procedures to the best of his ability, he cannot be said intentionally to inflict unjust harm an innocent defendant who is caught in the web of the system–even if that judge personally recognizes the defendant’s innocence.
The moral and jurisprudential question has to be: what is a just procedure, all things considered? In evaluating habeas corpus procedures, how do we balance the conflicting social goods of achieving a correct result, on the one hand, and recognizing the need for finality, on the other? I myself think that in our society, given its resources for discovering the truth, a just system of collateral appeals requires special accommodation for claims of actual innocence in death penalty cases. But in other societies, with fewer resources, this might not be the case. (I’m here prescinding, as Dershowitz does, from the question whether the death penalty is just–I’d say the same thing about a sentence of life in a supermax facility).
If they do have a debate, I’d like to propose a theological text as its basis: St. Thomas Aquinas on the duties of a judge with respect to a condemned prisoner he knows to be innocent: Summa Theologica, II-II, q 64 art. 6, rep. ob. 3.
Ad tertium dicendum quod iudex, si scit aliquem esse innocentem qui falsis testibus convincitur, debet diligentius examinare testes, ut inveniat occasionem liberandi innoxium, sicut Daniel fecit. Si autem hoc non potest, debet eum ad superiorem remittere iudicandum. Si autem nec hoc potest, non peccat secundum allegata sententiam ferens, quia non ipse occidit innocentem, sed illi qui eum asserunt nocentem. Minister autem iudicis condemnantis innocentem, si sententia intolerabilem errorem contineat, non debet obedire, alias excusarentur carnifices qui martyres occiderunt. Si vero non contineat manifestam iniustitiam, non peccat praeceptum exequendo, quia ipse non habet discutere superioris sententiam; nec ipse occidit innocentem, sed iudex, cui ministerium adhibet.
If the judge knows that man who has been convicted by false witnesses, is innocent he must, like Daniel, examine the witnesses with great care, so as to find a motive for acquitting the innocent: but if he cannot do this he should remit him for judgment by a higher tribunal. If even this is impossible, he does not sin if he pronounce sentence in accordance with the evidence, for it is not he that puts the innocent man to death, but they who stated him to be guilty. He that carries out the sentence of the judge who has condemned an innocent man, if the sentence contains an inexcusable error, he should not obey, else there would be an excuse for the executions of the martyrs: if however it contain no manifest injustice, he does not has no right to discuss the judgment of his superior; nor is it he who slays the innocent man, but the judge whose minister he is.
There seems to be such a whorl of issues it would take some thought to unpack it all. I see that it depends heavily on the proper nature of, and restrictions inherent in, various roles in the criminal justice system, and the danger to the system of stepping outside the defined boundaries to do the right thing. Couldn’t we ask some of the same questions of a defense attorney who defends a defendant whom she knows, beyond a doubt, to be guilty of a serious crime? How can she in conscience do such a thing? I’d think, if one didn’t have adequate faith in the system, it would be difficult or impossible to defend such a client.
I recall reading that one of those 19th century statesmen-orators – was it Clay? – was famous for never having had a client convicted, and I believe remarked later in life that he knew he had prevented guilty clients from being executed.
Jim, you’re right. It’s complicated –and that’s the point, right? It’s not simply a question of moral responsibility for foreseeable consequences.
Dershowitz’s example in the news-release (about the husband convicted of murdering a not-dead wife) seems to be a caricature of Scalia and Thomas’ argument. Is there any available analysis on their actual position concerning habeas corpus in such a case, one would think that in light of the wife being found alive, such evidence would warrant a mistrial/new trial (assuming there still is a body, but not the wife’s).
If a person is found guilty of a crime, and new and indisputable evidence exists that proves that person is innocent, then that innocent person did not have a full and fair trial to begin with.
That being said, if there is a debate, I hope it will clear up the confusion both Alan Dershowitz and Justice Scalia have regarding “due process”. Alan Dershowitz supports abortion. Justice Scalia appears to believe that the question of abortion belongs to the State.
Here is what the Fifth and Fourteenth Amendments actually state:
Fifth Amendment: ” No person shall be deprived of Life, Liberty, or Property, without due process of Law…”
Fourteenth Amendment: “nor shall any State deprive any Person of Life, Liberty, or Property, without due process of Law…”
Blind adherence to the law, no matter how esoteric or convoluted the reason for attempting to extricate yourself from responsibility, is a form of idolatry; we are worshipping our own manifestly imperfect system. There’s no legal or moral argument in the world that can convince me that knowingly allowing a person to die because of protocol isn’t a hideous perversion of what is Good.
I am with you, Thomas Jacobs. What Thomas Aquinas and the predecessors on whom he bases his decision ignore is that Jesus Christ is decidedly mercy over justice. And this case is one of justice, anyway. It is a type of legalism that is deplorable. I understand that one has to follow what the law is. Do you mean there is no room for a judge to have discretion when he knows an injustice is being done to someone? If there is prosecutorial discretion, how much more should judges have it. Especially, for clear cut cases. In this sense Alan D is right that Scalia and Thomas are bad Catholics because a good Catholic follows Jesus not a tribunal that is in error. For that matter how would Thomas decide the Holocaust?
Another very strong point is that the history of Catholic jurisprudence is sadly tainted. For example, there used to be the death penalty for stealing while more serious crimes were not as severely punished. The reason stealing was more serious was to protect the protected wealthy against a needy person who might disrupt the privileged character. It is a long history of the hierarachy (1700 years) aligning with empire.
A just society cannot execute a man when it has compelling evidence of innocence. How much evidence? It’s hard to say, but proven perjury of several witnesses who testified against him and the absence of physical evidence surely gets Davis some kind of relief.
It’s true that finality is important, and courts are swamped with habeas claims (prisoners have a lot of time on their hands and access to rudimentary law libraries) but it’s also true that there is increasing evidence that our justice system is a lot more imperfect than we had all understood it to be. That understanding has to be accompanied by at least a small increase in receptivity to the claims of those like Troy Davis, even if the rules have to be bent, because otherwise, fewer and fewer will see their society as being even reasonably just. This is what Scalia doesn’t get.
I loved Dershowitz’s example of the man and his wife.
Cathy -
I know the constitution does not promise justice, so on the surface it would seem that we have no Constitutional right to it.
However, we do have a right to due process, and if I’m not mistake, due process includes principles of procedures of Englis common law whick tacitly at least recognized that apeals could be made to justice, even when that required establishing new precedents in procedural law. Or do I have it all wrong?
Does justice have ^nothing* to do with our Constitution?
Ann, good question. What we’re talking about here is a state conviction, fully appealed on all grounds in state court, with a “collateral” appeal to federal court on constitutional grounds through the writ of habeas corpus –bringing up procedural issues already raised on appeal in state court. The whole process of direct and collateral appeals takes years–it used to take longer before the Supreme Court put some limits on habeas appeals.
So this concdemned person, would have received due process of law. What’s at stake is more of a substantive claim __”actual innocence”–and the relationship between substance and procedure. Needless to say, all claims of evidence that proves actual innocence may not be as persuasive as Dershowitz’s example is. We’re talking more litigation.
I’m neither a lawyer nor a fan of Justice Scalia, but under our constitution is it not true that the President can pardon anyone for any reason whatever the crime? If so, then examples like Dershowitz’s lose much of their force, don’t they?
Bernard: The President only has the power to “Grant Reprieves and Pardons for Offenses against the United States” and only a tiny fraction of the capital cases in the United States are for federal offenses. That said, state governors generally have broad clemency / pardon powers, and some have exercised this power to commute death sentences in cases where serious questions were raised about actual innocence. Justice Scalia and others have noted the availability of executive action in debates about the power of federal judges to intervene in state executions where doubts are raised late about actual innocence. But, the governors’ power is often constrained not only by regulation, but by political pressure, and so some of us think that the availability of executive action, which should play an important protective role in the overall process, is in danger of becoming a more theoretical than real safeguard.
This is a great post and fascinating discussion. Let me toss out two curveballs that I hope are reasonably relevant:
One is the trial in Texas of Judge Sharon Keller, who it appears is also Catholic. She refused to keep the court clerk’s office open a few minutes past closing for an appeal, a move that resulted in the death by lethal injection later that evening of a convicted killer. The convict was clearly guilty, but this was based on a Supreme Court doubt about the lethal injection procedure. The action by “Killer” Keller raised objecions even in Texas. Here’s a news story:
http://www.google.com/hostednews/ap/article/ALeqM5jxRrURsvXKXwApVHr4WtwXGUzt7QD9A6VNA00
Was she correct in following procedure? Or not relevant here?
Second, to Cathy, how does your argument fit in (if it needs ti at all) with you earlier posts on justices and empahty, and Judge Noonan’s masks?
Thanks.
Bingo Bernard -
As the non-lawyer you have touched on the fallacy of this argument and exposed the touchstone of progressive’s thinking on the nature of the judiciary.
Dershowitz’s underlying assumption that a judge’s job is to do “moral justice” is both flawed and dangerous. The judge’s job is to know the law, apply the law to the situation, and to ensure that legal processes are followed. The judge does not operate in a vacuum – he is not a philosopher king, and we wouldn’t want him to. Dershowitz, for example, would be the first to argue that a judge should not “do moral justice” by considering reliable but constitutionally excluded evidence to convict a guilty man.
Moreover, rarely does the kind of situation Dershowiitz describes ever arise. As you say, that’s what the executive power of clemency addresses. In addition, if it really is a problem, the legislature could always provide an avenue for judges to address it.
Interesting point as well about the relationship, or not, between the constitution and justice. The statue symbolizing “blind justice” is in front of many courthouses, so one would think justice is part of the equation.
http://en.wikipedia.org/wiki/Blind_justice_%28concept%29
Three thiings In one of his first books, the sociologist Peter L. Berger argued that if a judge found himself required by the law to impose the death penalty and he himself were morally or religiously opposed in conscience to the death penalty, he would have to resign his position rather than violate his conscience.
In the western philosophical tradition, there is a broader notion of justice than that which sees it as the virtue that regulates and balances rights and duties. It roughly corresponds to such notions as “integrity,” “rightness,” “authenticity,” a virtue that leads one to do the right thing in whatever circumstances, and it is not limited to what virtue in the narrower sense might suggest or require. The narrower sense of justice leads people to contrast justice and mercy, while for the broader sense mercy could be the just, that is, the right thing to do. I remember being helped greatly by a little book by Giorgio Del Vecchio, Justice: An Historical and Philosophical Essay, when I was trying to figure out the argument in St. Anselm’s classic essay, Cur Deus Homo?
The tradition also offers the notion of epikeia, which justifies exceptions to a law when it can be presumed that the law-giver would not have intended an evil that the law seems to make inevitable.
The purpose of “due process” is to arrive at the truth. in this case, regarding the defendant’s guilt or innocence, in order that Justice, which requires the truth to begin with, can prevail.
F.Y.I.: http://en.wikipedia.org/wiki/Troy_Davis_case.
Sorry, that should read:
http://en.wikipedia.org/Troy_Davis_case
I am wondering why the Georgia Supreme Court rejected the new evidence in this case or did they not even consider it?
There are more and more cases that come close to Dershowitz’s example. Ask the Innocence Project. Certainly, most of them involve DNA evidence, but others arise where eyewitness identifications are the only incriminating evidence, and strong alibi evidence is ignored or excluded. Racial elements are usually very strong in these cases. What rate of wrongful conviction is high enough to condemn our procedures, however superficially fair, as inadequate?
For starters, I do not believe that anyone convicted solely on the basis of an eyewitness identification by a stranger should be eligible for the death penalty. The error rate in such identifications, particularly if cross-racial and done under the stressful circumstances of a crime, is extremely high. There is a good argument that such evidence should be excluded altogether absent some other indication of reliability (e.g., witness identified a really obvious mark, such as a tattoo or scar.)
If all you’re after is procedure, you belong in Hell.
F.Y.I.:
http://www.usccb.org/deathpenalty/
Re Fr. Komonchak’s comment, two related points.
1. If I’m not mistaken, within the Aristotelico-Thomistic tradition, within which I am happy, is there not a distinction between complete justice and partial justice? Partial justice is one of the cardinal virtues, along with prudence, temperance and fortitude. Each of these virtues has it’s own proper object. Complete justice, as the name implies, encompasses all the virtues in a unity. So one can speak of the Biblical just person as a person of integrity, an authentic person, etc. Complete justice seems to me to mean the same thing as the complete moral good.
2. The Aristotelian notion of epikeia has to do with partial justice. It presupposes some set of basically sound laws that need rectification to cover unexpected complications. Epikeia is in no way “superior” to the laws that it corrects. It is a proper application of them.
In the case under discussion here, i.e., the Derschowitz case, the question is who should be the agent that determines what epikeia would call for. Is it the Supreme Court or is it some executive, either the President, or as Rick Gaarnett says is often the case, the state governor?
I do accept Garnett’s point that one has to ask whether the state governor is well positioned, given political pressures, to exercise epikeia. If not, then our system needs to be amended so that some recognized official is in a position to exercise epikeia. For any reasonable system of justice, there must be some provision for something like an effective exerciuse of epikeia.
“If all you’re after is procedure, you belong in Hell.”
Amen.
Bernard –
Your points are very well taken.
Since the flaw in the Dershowiz case was in the decision of thye jury, perhaps the system could provide for a second jury to be called to judge the facts a second time. The judges have their interpretationsof the laws a all the time. Why not the juries?
I can see keeping the functions of judges and juries separate, and a short retrial of the evidence in such cases should not burdensome. Even if if were, maintainig respect for the law would seem to require some remedy.
sorry. Should be: judges have their interpretations of the law revised all the time.