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.