Tuesday, April 3, 2012

Conservative “Freedom”: The Constitution Allows Execution of the Innocent

Ken O’Brien

Justices Antonin Scalia and Clarence Thomas
Conservative activists have struggled mightily to populate the Supreme Court with jurists who share their views. The judicial philosophies favored have been termed “strict constructionists” and “originalists”.

Put simply, the practice of strict constructionism requires a judge to apply the text of the law in a formalist way -- only as it is written. This means a judge or panel of judges must first obtain a clear meaning of the text. Once the text of a law is interpreted clearly, there is no need to draw further inferences from statutes of the law.

An originalist is a person who believes that the meaning of the constitution does not change or evolve over time, but rather that the meaning of the text is both fixed and knowable.  An originalist believes that the fixed meaning of the text should be the sole guide for a judge when applying or interpreting a constitutional provision.

At what point does adherence to either of these views fly in the face of what virtually any reasonable person would consider “justice”.

Would it be, say, deciding that the U.S. Constitution allows the execution of an innocent person?

I would wager that you would be hard pressed to find anyone who would think that such an opinion is in any way reasonable. Certainly the vocal pro-life elements of the social conservative movement would find any such position abhorrent, wouldn’t they?

But, why dwell on such an absurdity? No court would ever make such a decision – least of all the U. S. Supreme Court.

Think again.

In a 6 to 2 decision in the case of Troy Anthony Davis, the Supreme Court ruled in the plaintiff’s behalf for an evidentiary hearing on Troy Davis’s petition for an original writ of habeas corpus.

The petition asked for a hearing to determine whether evidence justified a finding of “actual innocence”.

Actual innocence is the absence of facts required for conviction under a criminal statute and is a widely used defense to crime. Defendants often claim actual innocence when appealing criminal convictions. To prove actual innocence, the defendant must submit additional evidence that undermines the court's confidence in earlier verdict reached. Appellate rules normally require that this evidence must not have been available to the defendant at the time of the trial.

The following is an example of a case law defining the term:

Actual innocence is “finding not guilty beyond reasonable doubt. Actual innocence means factual innocence, not mere legal insufficiency." Norris v. Warden, Noble Corr. Inst., 2010 U.S. Dist. LEXIS 12171 (S.D. Ohio Feb. 11, 2010)

As noted above, the Supreme Court ruled 6 to 2 to send the case back to the lower court for such a review.

The shocking part of this decision was the dissenting opinion which was written by Justice Antonin Scalia in which he was joined by Justice Clarence Thomas. In that dissent Justice Scalia wrote: “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.

In other words, even if you are subsequently found “actually innocent” these conservative Justices maintain that your death sentence previously imposed still can be carried out. That’s what the Constitution, as we interpret it, provides. Justice in the eyes of the reasonable man need not apply.

Tell me tea partiers and conservative lovers of freedom; is this the justice system that you really want? Would you want your fate in such a case decided by a court made up of Scalia and Thomas clones?

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