"Mere factual innocence is no reason not to carry out a death sentence properly reached." --U.S. Supreme Court Justice Antonin Scalia Herrera v. Collins, 506 US 390 (1993).Oh my, there's a blockbuster of a quote. My initial inclination was to wonder what side of the bed Nino woke up on that morning or what the context could possibly be. Knowing Scalia, I assumed he meant nothing in the Constitution would prevent your execution if you were truly innocent but a court complying with the requirements of due process found you guilty and sentenced you to death. Surely, Scalia understands that just because something is wrong, unjust or simply shouldn't be, it does not follow that the Constitution provides a remedy. After all, the Constitution is merely an allocation of powers from the people to the federal government, complete with some further limitations on the powers of governments. But the instructions for Utopia, it is not.
So, what did Scalia really mean? Helpfully, a citation to the appropriate Supreme Court case was provided. So, I figured I'd better read what Scalia wrote. Surely, he must have preceded the quote with some context that might make clear that his meaning isn't that it is morally OK to execute the innocent. But he didn't.
In fact, he never wrote that sentence. And there is no evidence he ever said it.
It's made up.
It's fake.
It's bullshit.
But that's OK in this day and age. What's the problem with a little dishonesty and character assassination in the name of political partisanship? So what if a lawyer propagates the fake quotation while citing a case without checking to see if the quote is correct. I'm sure this goes on all the time in briefs presented before the Supreme Court. And to be fair, I can certainly understand posting a quote that you have been familiar with for sometime without nailing down the source in an effort to spark discussion. But you really ought to check out your citation.
Certainly, they may now say that it doesn't matter that the quote is not true, but that quotation speaks the truth about what kind of person Scalia is. Or maybe it is true, "Scalia has never denied making this statement in a speech delivered shortly after the decision." Oh, and have you stopped beating your wife?
You can search it out. The best you'll find is people saying, well, I'm sure he said it in a speech somewhere not long after the Herrera case. But if he did, I can't find any evidence of it.
Neither could a law librarian at UC-Davis. She asked for a source. Her only answer was from someone who, stunned by the comment, looked it up. He said ""I found this quote of Justice Scalia's to be so appalling, that I felt compelled to do some research on it. To date, despite extensive searches on AltaVista, All The Web, Northern Light, Surfwax and other search engines, I have been unable to pin down the date or circumstances of the quote."
Yet so many others failed to do be so appalled that they had to see for themselves. What ever happened to intellectual curiousity? Not about finding a source, but about what the context of the quote was?
Those failing to look up the case they cite as the source of the quote include Dave's Favorite Quotations, Stinging-Nettle and B.J. Honeycutt himself, Mike Farrell. Then there were those who didn't mind repeating it with no attribution, so sure they were that it must be true. Or so sure they were that it just proved what must be true about that damn conservative. Fine sources like DU, a Quotation site called Think Exist, Paul's Justice Page (see the irony?) and others. 1, 2, 3 (the last actually admits to having no proof it was said).
It does turn up, attributed (in a way), to someone else. A guy named Zolo Agona Azania, who appears to be in the pokey in Indiana. In a few places (1, 2, 3), you can find he may have authored the following quote:
The law court judges hold that mere factual innocence is no reason not to carry out a death sentence properly reached. All that US law requires is a fair trial, not a perfect one.Maybe Zolo found it on the internet, but in a fit of fairness, decided not to attribute it to Justice Scalia since he couldn't find any evidence he ever said it.
And evidence is really what it comes down to. Especially when you are talking fairness and justice. The Constitution provides that you can't be deprived of liberty (jail) or life (lethal injection) without due process of law. And in Herrera v. Collins, Scalia does say that there is no Constitutional right of a convicted murderer to get back into court just because he "later alleges that newly discovered evidence shows him to be 'actually innocent.' "
For your edification, you might read Scalia's entire concurrence in the Herrera case:
If I were to draw a single quote from Scalia's Herrera concurrence, it would be this:
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring.
We granted certiorari on the question whether it violates due process or constitutes cruel and unusual punishment for a State to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be "actually innocent." I would have preferred to decide that question, particularly since, as the Court's discussion shows, it is perfectly clear what the answer is: there is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the [506 U.S. 390, 428] Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. In saying that such a right exists, the dissenters apply nothing but their personal opinions to invalidate the rules of more than two thirds of the States, and a Federal Rule of Criminal Procedure for which this Court itself is responsible. If the system that has been in place for 200 years (and remains widely approved) "shock[s]" the dissenters' consciences, post, at 430, perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of "conscience shocking" as a legal test.
I nonetheless join the entirety of the Court's opinion, including the final portion, ante, at 417-419 - because there is no legal error in deciding a case by assuming, arguendo, that an asserted constitutional right exists, and because I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution * lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon.
My concern is that, in making life easier for ourselves, we not appear to make it harder for the lower federal courts, imposing upon them the burden of regularly analyzing newly-discovered-evidence-of-innocence claims in capital cases (in which event, such federal claims, it can confidently be predicted, will become routine and even repetitive). A number of Courts of Appeals have hitherto held, largely in [506 U.S. 390, 429] reliance on our unelaborated statement in Townsend v. Sain, 372 U.S. 293, 317 (1963), that newly discovered evidence relevant only to a state prisoner's guilt or innocence is not a basis for federal habeas corpus relief. See, e.g., Boyd v. Puckett, 905 F.2d 895, 896-897 (CA5), cert. denied, 498 U.S. 988 (1990); Stockton v. Virginia, 852 F.2d 740, 749 (CA4 1988), cert. denied, 489 U.S. 1071 (1989); Swindle v. Davis, 846 F.2d 706, 707 (CA11 1988) (per curiam); Byrd v. Armontrout, 880 F.2d 1, 8 (CA8 1989), cert. denied, 494 U.S. 1019 (1990); Burks v. Egeler, 512 F.2d 221, 230 (CA6), cert. denied, 423 U.S. 937 (1975). I do not understand it to be the import of today's decision that those holdings are to be replaced with a strange regime that assumes permanently, though only "arguendo," that a constitutional right exists, and expends substantial judicial resources on that assumption. The Court's extensive and scholarly discussion of the question presented in the present case does nothing but support our statement in Townsend and strengthen the validity of the holdings based upon it.
[ Footnote * ] My reference is to an article by Professor Monaghan, which discusses the unhappy truth that not every problem was meant to be solved by the United States Constitution, nor can be. See Monaghan, Our Perfect Constitution, 56 N.Y.U.L.Rev. 353 (1981).
I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution * lets stand any injusticeAnd that's where Scalia differs from his liberal and "pragmatic" counterparts. He understands that the Constitution does not right every wrong or prevent every injustice or forbid the Congress from making stupid decisions. That's up to us as citizens. That's why we vote. That's what democracy is about.
If you want it to be the Supreme Court's responsibility, then you are neither democrat nor republican, but more akin to a monarchist.
