Through the legal looking glass - Up front: news and opinion from independent minds - Column

Humanist, May-June, 2003 by C.W. Griffin

The antiscientific attitude characterizes conservative justices on the U.S. Supreme Court. If George W. Bush gets his way in appointing "strict constructionist" interpreters of the U.S. Constitution, the Supreme Court will probably have a majority of justices ready and able to aid prosecutors fighting convicted criminals' claims of actual innocence. The president's models of judicial propriety--Justices Antonin Scalia and Clarence Thomas--tipped their hands in a written opinion in Herrera v. Collins. This 1993 case involved a dubious claim of actual innocence, unsupported by scientific evidence. Scalia, however, offered an opinion that went beyond the issues under review in Herrera v. Collins. He indicated that he would reject any claim of actual innocence, including the irrefutable proof sometimes provided by DNA evidence, as grounds for reopening a previously tried case. "There is no basis in text, tradition, or even in contemporary practice ... for finding in the Constitution a right to demand consideration of newly discovered evidence of innocence brought forward after conviction," said Scalia with Thomas' concurrence. Writing the six-to-three majority opinion rejecting Leonel Torres Herrera's appeal, Chief Justice William Rehnquist took a similar, if less definitive, stand than Scalia and Thomas. Rehnquist said, "A claim of innocence is not itself a constitutional claim," implying that a person convicted in state court could appeal to a federal court only by challenging the state court's procedure, not its verdict. According to Barry Scheck and Peter Neufeld in their book Actual Innocence, Rehnquist did, however, duck the question of whether "truly persuasive" proof of innocence could reopen a case.

The three dissenters in Herrera v. Collins rebutted Scalia via logic derived from the Eighth Amendment's ban on cruel and unusual punishment by Justice Henry Blackmun. In previous decisions, the Court had ruled that death is an excessive punishment for rape. If execution is excessive punishment for a man who has committed the heinous crime of rape, then surely it is excessive punishment for a man who has committed no crime at all. Blackmun's reasoning won the concurrence of current justices John Paul Stevens and David Souter. Another current justice, Sandra Day O'Connor, agreed with the minority: "The execution of a legally and factually innocent person would be an intolerable event." And Justice Anthony Kennedy concurred.

In defense of their position, prosecutors charge prisoners with frivolous claims of innocence, which waste limited criminal justice resources. Joshua Marquis, cochair of a district attorney's capital litigation committee, also charges death penalty opponents with inflated statistics on wrongful convictions. He says that only 20 to 25 percent of the convicts who are released--based on what the Death Penalty Information Center calls evidence of innocence--are truly innocent. Another death penalty supporter, Ken Scheidegger of the Criminal Justice Legal Foundation, has a similar complaint. According to a February, 24, 2003, New York Times article, he said that, "One hundred cases were removed from death row and not successfully reprosecuted. That's not the same thing as being proven innocent."