Scalia, Cain, and the Machinery of Death

by CHRISTOPHER KIT DAVIS

Supreme Court Justice Antonin Scalia 

In 1992 a man named Leonel Herrera, sentenced to death for killing two policemen, asked for a hearing in the federal courts on the basis of recently revealed evidence which, he claimed, established his innocence. A federal court judge stayed his sentence; a panel of three judges of the U. S. Court of Appeals for the Fifth Circuit lifted the stay. Hours before his execution, Herrera appealed to the United States Supreme Court, which agreed to hear his case. Early in 1993, the court, in a six-three vote, ruled against him, and suggested that Mr. Herrera look for clemency from the governor of Texas. Herrera, who insisted upon his innocence until the last minute (“I am an innocent man, and something very wrong is taking place tonight.”), was executed four months later.

Composed in stolid prose with many citations of precedence, the court’s opinion in Herrera v. Collins was written by then Chief Justice William Rehnquist, but it is Senior Associate Justice Antonin Scalia’s concurring opinion, composed with caustic wit, which has become notorious both among those in favor of and those opposed to capital punishment. Scalia, who describes himself as an “originalist” in his interpretation of constitutional law, wrote, “There is no basis in text, tradition, or even in contemporary practice. . . for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”

Dissenting in Herrera v. Collins, the late Justice Harry Blackmun wrote: “Nothing could be more contrary to contemporary standards of decency or more shocking to the conscience than to execute a person who is actually innocent. . . . We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced, but who, nonetheless, can prove his innocence with newly discovered evidence.”

Joined by Justice Clarence Thomas, Justice Scalia offered mocking advice to the three dissenters (Blackmun, Stevens, and Souter): “If the [constitutional] system that has been in place for two-hundred years (and remains widely approved) ‘shocks’ the dissenters’ consciences .. . perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of ‘conscience-shocking’ as a legal test.”

Those unfamiliar with Justice Scalia and his views, told he is a man capable of humor, may imagine that his own conscience is alive to the danger implicit in the moral disaster he recommends, that he doesn’t really mean to kill a potentially innocent man.

Not at all. He is serious, and his view is not without precedent. Continued...

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