Supreme Court Justice Antonin Scalia passed away over the weekend. In a non-traditional sort of eulogy, rather than talking about Justice Scalia directly, I’d like to remember Justice Scalia by telling you about Troy Davis and Justice Scalia’s adherence to his principles, including his firmly held belief that the Constitution permits the execution of innocent people. But first, you’ll need a little Law 101 to understand where Justice Scalia and Troy Davis intersect.

When innocent people are convicted because prosecutors buried crucial evidence or the police coerced false confessions or defense attorneys performed terribly, there are avenues for trying to right the wrong. They are difficult avenues, but they exist. However, when a person cannot show one of those constitutional violations, but can still plainly establish his innocence – say by DNA evidence or the real culprit confessing to the crime – there is often no relief available. Even if the innocent person is facing the death penalty. This is part of Justice Scalia’s legacy.

In a 1993 Supreme Court case called Herrera v. Collins, the Court held that a claim of actual innocence based on newly discovered evidence is not a ground for federal habeas relief, which is the last ditch form of relief available to prisoners. Justice Scalia wrote separately in that case to emphasize his firm belief that, as long as the original criminal trial was fair, it is constitutional to execute a person even if newly discovered evidence shows he is actually innocent. Justice Scalia’s position was that federal courts should never even consider habeas review of actual innocence claims from prisoners.

Troy Davis was a black man, convicted of murdering a white police officer in Georgia. There wasn’t any physical evidence linking him to the crime, and most of the witnesses who incriminated Mr. Davis later recanted and said that they were pressured into accusing Davis. When Mr. Davis appealed his conviction and death sentence to the Supreme Court, Justice Scalia was opposed to the Court even hearing Mr. Davis’ case. 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.” Over Justice Scalia’s objections, the Supreme Court sent the case back to the Georgia courts, where the conviction and sentence were once again upheld. Based on compelling evidence of innocence, there was an international effort to stop Mr. Davis’ execution, including a petition signed by more than a half-million people. Among the signatories were Archbishop Desmond Tutu, former President Jimmy Carter, and Pope Benedict XVI. But the Supreme Court denied Mr. Davis’ eleventh hour petition to stay his execution. Maintaining his innocence until the end, Troy Davis was executed on September 21, 2011. According to Justice Scalia’s unwavering perspective, Davis’ innocence was of no legal importance.

The Death Penalty Information Center publishes a list of over 150 people who have been exonerated of the charges that landed them on death row. Like Mr. Davis, their innocence would not have changed Justice Scalia’s scrupulous constitutional interpretation. In the end, Troy Davis declared, “I am innocent. . . For those about to take my life, may God have mercy on your souls.” May God have mercy on Justice Scalia’s soul. Amen.

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