I’d like to think that I have a very well developed sense of fair play and I’ve been told as much over the years. This partially explains why I have no problems with things like capital punishment in cases where the question of guilt is beyond doubt. The problem, of course, is that the question of guilt is rarely beyond doubt so in general I come across as opposed to the death penalty to most people. If there is any question that someone might be innocent of the crime they’re facing the death penalty for then I much prefer to go with life imprisonment because that can be reversed whereas death cannot. That seems a decent trade off to me.
Supreme Court Justice Scalia, however, has a different standard of what’s fair. Not only does he not have a problem with executing what could potentially be an innocent man, he goes as far as to argue that such a death would not be unconstitutional:
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. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.
In short, as far as Scalia is concerned, so long as you are convicted in a full and fair trial then your actual innocence is irrelevant to the question of whether you should be executed. The fact that the courts are intrinsically a human institution and thus are as fallible as the humans that constitute them apparently holds no sway in his mind.
This goes against every instinct of fair play I have. I am literally dumbfounded in the face of that kind of argument. I shouldn’t be as Scalia has said a lot of stupid things in the past that will ensure I celebrate the day he steps down from the Supreme Court, but even for the likes of him that argument is simply stunning.