Is There a Right of the Innocent Not to be Executed?

I have a google alert that searches for mentions of the term “prosecutorial misconduct” . It’s a never ending flow of events, which is unfortunate in and of itself.  Its a reminder that power corrupts on a daily basis. This morning’s email brought my attention to an article written by Cornell Law Professor Michael Dorf.

The title of his article ? “Did The Supreme Court Recognize an Innocent Person’s Right Not to be Executed ?

When I read the title, I thought it was a trick question of some sort.  When I read the article I got sick to my stomach. In particular notice the bold paragraph.

“Twenty years ago, off-duty police officer Mark McPhail was shot and killed in a Savannah, Georgia parking lot. Based on information provided by Sylvester Coles, the police sought Troy Davis for the murder. Davis turned himself in and was charged with the crime. He was found guilty and sentenced to death based on the testimony of eyewitnesses.

Since then, however, nearly all of those witnesses have recanted, claiming in affidavits that they were pressured by police to name Davis as the perpetrator. Meanwhile, additional evidence has been found indicating that Coles, the prosecution’s star witness against Davis, was the actual killer. Yet despite national and international attention–including pleas by former Georgia Governor and U.S. President Jimmy Carter, former Georgia Republican Congressman and federal prosecutor Bob Barr, and even Pope Benedict–neither the Georgia courts nor the Georgia Pardons and Parole Board has seen fit to stop Davis’s execution.

Last week, the Supreme Court offered Davis a ray of hope. In response to his petition for a writ of habeas corpus, the Justices ordered that a federal district court in Georgia “should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis’s] innocence.”

The Court’s order in Davis was not unanimous, however. Justice Scalia, joined by Justice Thomas, dissented. Justice Scalia said that even if the district court were to find Davis to be innocent, there would still be nothing unlawful about executing him.

The article then goes on to discuss the various legal issues involved in this issue.

I come back to a single issue. Its not illegal to execute an innocent person. Maybe its time for a constitutional amendment ?

34 thoughts on “Is There a Right of the Innocent Not to be Executed?

  1. Guys, “strict constructionalism” is a cute little buzzword that conservatives (or should I say, people who claim to be conservatives) use when court decisions rule against the political philosophy that they support.

    There is no such thing as “strict constructionalism” since such a strategy would basically ignore 230 some-odd years worth of legal evolution. The Constitution is a basic framework under which our legal system operates and adapts over time.

    The end goal of our legal system is JUSTICE. Always has been, always will be. Any process or doctrine that exists only exists for the purpose of producing a just and correct outcome.

    If not, we might as well abolish the Appellate, District, and Supreme Courts since they would in essence be obsolete.

    “Strict constructionsim”, what a joke.

    Comment by mbilinsky -

  2. Mark, I hope you’re aware of the excellent work of the Innocence Project of Texas ( on many of these issues, including faulty arson forensics.

    They’re having serious financial troubles. I was their Policy Director until July 31 when I and other staff were let go because a Madoff-invested foundation reneged on its grants. Individual donations are way down, too, but they’re still pursuing cases and doing good work, including a current project led by their legal director, Jeff Blackburn, and a team of Texas Tech law students to vet every conviction for inmates currently locked up in TDCJ on arson charges (more than 800, I’m told) to identify those based on testimony espousing outdated forensic theories.

    You seem keenly interested in this subject and, if so, supporting this Texas-based innocence group would be a way to get a lot of philanthropic bang for the buck. They’re doing some amazing work on a shoestring, I can personally attest.

    And of course, I often cover Texas prosecutorial misconduct issues at As a Mav’s fan who’s focused on these issues, I’m pleased as punch to learn that this is an area of interest for you; it has been for me, as well, dating all the way back to the “Tulia” drug stings (another of Blackburn’s cases, fwiw). Best!

    Comment by gritsforbreakfast -

  3. Instead of, completely, misinterpreting Scalia, maybe Mark Cuban should have been responsible enough to read Scalia’s opinion.

    Here it is. It’s not too late.

    Comment by dudleysharp -

  4. Sadly, Cuban only gave the very limited and misleading presentation on the Troy Davis case. I am sure it was unintented.

    The Davis review for innocence have been extensive, if not unprecedented, prior to the Supreme Court decisison.

    Troy Davis: Both sides need to be told
    Dudley Sharp, contact info below

    Anyone interested in justice will demand a fair, thorough look at both sides of this or any case. Here is the side that the pro Troy Davis faction is, intentionally, not presenting.

    (1) Davis v Georgia, Georgia Supreme Court, 3/17/08
    Full ruling

    ” . . . the majority finds that ‘most of the witnesses to the crime who have allegedly recanted have merely stated that they now do not feel able to identify the shooter.’ “One of the affidavits ‘might actually be read so as to confirm trial testimony that Davis was the shooter.’ ”

    The murder occurred in 1989.


    “After an exhaustive review of all available information regarding the Troy Davis case and after considering all possible reasons for granting clemency, the Board has determined that clemency is not warranted.”

    “The Board has now spent more than a year studying and considering this case. As a part of its proceedings, the Board gave Davisâ�� attorneys an opportunity to present every witness they desired to support their allegation that there is doubt as to Davisâ�� guilt. The Board heard each of these witnesses and questioned them closely. In addition, the Board has studied the voluminous trial transcript, the police investigation report and the initial statements of all witnesses. The Board has also had certain physical evidence retested and Davis interviewed.”

    (3) A detailed review of the extraordinary consideration that Davis was given for all of his claims,
    by Chatham County District Attorney Spencer Lawton

    Troy Davis’ claims are undermined, revealing the dishonesty of the Davis advocates . Look, particularly, at pages 4-7, which show the reasoned, thoughtful and generous reviews of Davis’ claims, as well a how despicable the one sided cynical pro Troy Davis effort is.

    (4) Officer Mark Allen MacPhail: The family of murdered Officer MacPhail fully believes that Troy Davis murdered their loved one and that the evidence is supportive of that opinion.

    Not simply an emotional and understandable plea for justice, but a detailed factual review of the case.

    (5) “Death and Dying”, by Cliff Green, LIKE THE DEW, 7/22/09,

    Dudley Sharp, Justice Matters
    e-mail 713-622-5491,
    Houston, Texas

    Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS, VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O’Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

    A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

    Comment by dudleysharp -

  5. I would advise folks read the last paragraph of Justice Sandra Day O’Connor’s concurrence in Herrera on this issue, below.

    As well as her entire concurrence at

    “Ultimately, two things about this case are clear. First is what the Court does not hold.

    Nowhere does the Court state that the Constitution permits the execution of an actually innocent person. Instead, the Court assumes for the sake of argument that a truly persuasive demonstration of actual innocence would render any such execution unconstitutional and that federal habeas relief would be warranted if no state avenue were open to process the claim.

    Second is what petitioner has not demonstrated. Petitioner has failed to make a persuasive showing of actual innocence. Not one judge–no state court judge, not the District Court Judge, none of the three Judges of the Court of Appeals, and none of the Justices of this Court–has expressed doubt about petitioner’s guilt.

    Accordingly, the Court has no reason to pass on, and appropriately reserves, the question whether federal courts may entertain convincing claims of actual innocence. That difficult question remains open.

    If the Constitution’s guarantees of fair procedure and the safeguards of clemency and pardon fulfill their historical mission, it may never require resolution at all.”

    Comment by dudleysharp -

  6. As usual, great insight. I think our legal system is absolutely ridiculous. We murder innocent people based on lies, pressure and politics, yet we won’t allow a terminally ill person the option to pass peacefully with the assistance of a doctor.

    Comment by Lin and Jirsa Photography -

  7. Pingback: A step backwards for justice. « Things that are Wrong with the World

  8. Alan Dershowitz summed it up very well in thsi article.

    Not only did Scalia betray his Catholic roots, he also should resign by his own definition. Scalia pretty much says a person who is found guilty in a fair trial, that is now 100% innocent, should still be exocuted.

    The example given is that if I am convicted in a fair trail of killing my wife, and show up at the supreme court with her clearly not dead and standing next to me, Scalia would still say I should be executed.

    Comment by ben9999999 -

  9. Pingback: Innocent Person’s Right Not to Be Executed

  10. O oh? Mark? Is it true what uwskiguy said about a misquote? I am taking your word as ‘gold’ here.

    Comment by Saleh Najar -

  11. Mark, I read through Scalia’s dissenting opinion and he never said what you’ve wrote in your blog.

    “Justice Scalia said that even if the district court were to find Davis to be innocent, there would still be nothing unlawful about executing him.“”

    Actually all Scalia said was that there is nothing in our constitution or in case law that is unlawful to continue to execute him based upon his “actual innocence” claim.

    Frankly, I don’t think it Davis’ innocence is as clear cut as you make it seem and you’ve skewed Scalia’s view on the issue by misquoting his dissent.

    Comment by uwskiguy -

  12. Ideally, given how irrevocably broken the system is, capital punishment should be scrapped altogether as it is in most developed nations, the U.S. and Japan being notable exceptions where support is pretty strong. But, given how strong that opinion is in favor of it here and so how unlikely it is to happen, such an ammendment would be a good step, IMO. As long as a prisoner is deemed to have a “fair trial” (“fair” having been ruled at least once that I’ve read about to include a defense lawyer sleeping during the trial), it has been ruled to be perfectly ok to execute in this country regardless of the strength of any new evidence.

    Even if the rate of the execution of the completely innocent were somehow able to be reduced to zero, you’d still have questions regarding culpability that could never be completely settled for sure. Throw in that there is no way to see how that even could ever be the case, given proven (even if infrequent) cases of corrupt officials, fallible juries that place far more weight on less accurate eyewitness testimony than on scientific analysis of physical evidence, and such, and I find it hard to argue for an irreversible punishment when there are so many possibilities for flaws in the process. In any case, you could make a strong argument that locking away the worst of the worst in Supermax-conditions with no hope of release ever is really more of a punishment than the release of death. Besides, it would be a lot less expensive, actually.

    Oh well, rant off as I know I’m going OT– I know I feel particularly strongly on this issue and most will disagree with me. Even though the dissenting opinion might have been correct may have been correct given a strict interpretation of the law, I find it disheartening to see that put above principles that I feel are higher: human rights, ethics, ect.

    Comment by bucfanpaka -

  13. Help I can not take it anymore. I am giving up and I have lost the will to keep going.

    Comment by wildwhitewoody -

  14. Never mind the case or the content, it is about the statement. Just to make a statement like this, by a Justice, the protector of the constituion is sick. It shows that she or he did not ‘get’ what the constitution is all about.

    Comment by Saleh Najar -

  15. There are problems in the system; problems in which need to be addressed before anymore lethal actions take place.

    Comment by mmmbrownn -

  16. Wow, you are NOT happy with the Georgia legal system huh? I can see why. This is outrageous.

    Comment by mikel123 -

  17. The constitution provides a method for handling this exact type of case, Presidential pardons. Once someone has exhausted all their other appeals a judge’s hands are tied, for good reason. Otherwise, you’d have a right for anyone to appeal until they died of old age, because every time they appealed it could be that “this time” they have evidence proving themselves innocent and thus you’d have to have a new hearing about it.

    At some point they have to exhaust their appeals to the courts. It appears that this case is one where he already exhausted all possible appeals on the facts of the case.

    That said, it was anticipated that sometimes there would be a misjustice done by judges following the law strictly. The SOLUTION was the pardon power. Either the President or the Governor of Georgia can pardon him if he’s innocent. It’s not the job of Judges to do it for them if they’ve followed the law!

    So don’t blame the judges, blame the executive for not doing their job earlier.

    Comment by sharper13 -

  18. Pingback: It is Constitutional to Execute Innocent People. . . | Conservative Dallas

  19. After reading TFA and then reading the PDF containing Justice Scalia’s dissent, I believe there is a total misunderstanding here.

    Justice Scalia does not address whether an innocent person can be executed, but rather whether a person found guilty by a State Surpreme Court can THEN be found innocent by a District Court in light of the very same evidence:

    “Transferring this case to a court that has no power to grant relief is strange enough. It becomes stranger still when one realizes that the allegedly new evidence we shunt off to be examined by the District Court has already been considered (and rejected) multiple times. Davis’s postconviction “actual-innocence” claim is not new. Most of the evidence on which it is based is almost a decade old. A State Supreme Court, a State Board of Pardons and Paroles, and a Federal Court of Appeals have all considered the evidence Davis now presents and found it lacking.”

    Notice that Justice Scalia’s dissent is clearly concerned with the ability of a lower court to better assess and pass judgment on a case that has been tried fairly and in full.

    In light of that position, the following makes perfect sense:

    “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.”

    Again, notice the skepticism that a habeas court could better determine that a convicted defendant who had “a full and fair trial” was “actually” innocent — again, using evidence that had already been heard.

    Which leads us to the very slippery slope that concerns Scalia:

    “There is no sound basis for distinguishing an actual-innocence claim from any other claim that is alleged to have produced a wrongful conviction. If the District Court here can ignore §2254(d)(1) on the theory that otherwise Davis’s actual-innocence claim would (unconstitutionally) go unaddressed, the same possibility would exist for any claim going beyond “clearly established Federal law.” The existence of that possibility is incompatible”

    I find Justice Scalia’s position very consistent as well as compelling.

    Comment by Rick Morgan -

  20. Mark, thanks for this and like you I find it astonishing.

    There was a bit of a similar case recently in Alaska, where the court ruled that new DNA evidence would not be admitted in support of a man’s retrial, because (to paraphrase) “The case had been fairly determined on the strength of the evidence that was presented at the time”.

    Intellectually, I get it – the trial is the trial and both parties must put on their best show. However, one would hope to find a commitment to “justice” as a moral principle. Apparently not.

    Best regards, Martin W Greenwood

    Comment by martinplt -

  21. @Jonathan,

    So in the real world, you’re OK with an innocent man being executed because that’s what the law says?

    What if that innocent man was your mom or you, would you still be OK with your view?

    Legal theory is a wonderful thing to discuss when it’s not your ass seated in the electric chair.

    I agree with a lot of what you say and need to stay faithful to the law. But there will always be some exception because laws were written by humans, so there’s bound to be some imperfection. I believe that’s also why we have humans serving on the Supreme Court who are expected to be capable of handling complex issues. If all we needed was people to do exactly what the law said, lets build some robots and save the money we used fund the Supreme Court.

    Comment by isaacsabetai -

  22. The danger of a debate about this case and Scalia’s dissent is that we get too caught up in the facts of the Davis case. Scalia isn’t basing his dissent on those facts, and Stevens only tangentially is.

    The question is whether the doctrine of habeas corpus can be applied and a writ granted despite a law that was intended to limit habeas. The law says you can only grant the writ (here, preventing Davis from being executed) where the execution would violate CLEARLY ESTABLISHED Federal law. Scalia says that he only sees the right of an innocent person not to be executed embodied in a case that is less than “clearly established” (that’s the Herrera case). I guess by extension, he doesn’t see the 14th Amendment’s protection of due process as that “clearly established” either. Or rather, doesn’t see that executing an innocent person is clearly depriving them of life without due process of law, which is what the 14th amendment protects.

    I know that’s probably too much inside-baseball for laypeople who like to use phrases like “legislating from the bench” to belittle what justices do, but the fact is, we really are talking about the life of a person here, and these justices should know that. We have one justice who believes that “due process of law” only means making sure the rules on paper get followed as written and another justice who believes that due process means that we actually need to make sure the natural results of due process are obtained (here, making sure that trials are actually fair and not just “fair” because all of the rules were followed to the letter).

    The history of the Supreme Court and the constitution tells us that eventually the right thing is done and that due process is upheld in spirit as well as in the letter of the law. Luckily, it looks like that eventually will happen here, and Davis will get a new trial. Others in the past have not been so lucky.

    I’ve often wondered whether Scalia makes these kind of strained strict-constructionist arguments in cases like this because he knows he’s in the minority, and the illogical (and sometimes potentially disastrous) real-world effects of his arguments will never come to pass. I sometimes think he must believe that doing this will help him establish intellectual credibility for when he truly believes in a position he’s fighting for the court to adopt.

    BTW, I know how tempting it is to agree with the Scalia side of the argument when you’re looking for certainty in an uncertain world. However, I also think that, in some cases, you have to question whether Scalia is working too hard to claim there is certainty where there really is none. Remember, as the article pointed out, Scalia’s argument is that this federal law (the AEDPA) says the court can’t grant Davis a writ of habeas corpus unless executing him would violate “clearly established federal law.” Scalia claims (and the writer of this article agrees) that the case that gives innocent people the right not to be executed (Herrera) isn’t really all that clearly established.

    I disagree. Here is the actual language from the Herrera case, written by that noted commie liberal, Justice Rehnquist:

    “We may assume, for the sake of argument in deciding this case, that, in a capital case, a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold.”

    Does that sound like Rhenquist DOESN’T believe that there is a right of innocent people not to be executed? Seems to me that he is saying that the RIGHT is clearly settled, even if the standard for evaluating the circumstances where the right exists is not. It’s easy for Scalia to waive his hand and say that “even though the court established a constitutional right, they didn’t fully flesh out all of the details in how to apply it, so I’m not going to consider that ‘clearly established’ law.” However, given the strength of the court’s statement in the Herrera case and the direct applicability of that to the Davis case, I’m starting to question Scalia’s intellectual purity.

    Seems to me that the right not to be executed when you’re innocent IS clearly established.

    Comment by msw1ca -

  23. Pingback: no third solution » Blog Archive » Nothing Unlawful About Executing the Innocent

  24. Scott has it right. As of today and yesterday, the way the laws and constitutions are written, if a man is found guilty of a crime by a jury, he is found guilty of a crime. That’s irreversible except in a few specific circumstances. This case does not meet them.

    If we are a nation governed by laws, we obey the law as it is written. While the laws we have may be unjust, at least our laws will never seek power to rule us as a tyrant.

    If we are a nation governed by men, then we ignore the law and do what we think is best at the time. That is the road to tyranny. That is how you end up with a dictator or an emperor. Justices Scalia and Thomas understand this, and that’s why they refuse to do anything more or less than what the law demands of them.

    In other words, the law is the best we have, and until someone has something better (which we will happily adopt as our new law according to the law), we live and die by it.

    Comment by Jonathan Gardner -

  25. There is a way to unconvict someone… Presidential Pardon?

    Comment by swissturn -

  26. Mark,

    The root of the problem is that there is no easy way, once someone is convicted of a crime and all appeals have been exhausted, to unconvict someone.

    States should create judicial bodies that review cases when new evidence has been uncovered. If one witness recounts their testimony and that testimony was considered key to the conviction, that should be enough to start a new trial.

    So in this case the person is the exact opposite of innocent – they have been found guilty in a fair trial. Clearly the justices are relying on that fact to say that the execution should go ahead.


    Comment by scottjduffy -

  27. The key (and most baffling) phrases are, “This Court has never held that the Constitution forbids the execution of a convicted de-fendant 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 ques-tion unresolved, while expressing considerable doubt thatany claim based on alleged “actual innocence” is constitu-tionally cognizable.”

    *scratches head*
    It seems to me that Scalia isn’t saying it’s unconstitutional to rule in this manner. Rather that there’s no direct presedent to follow and so, in a vacuum, cite previous non-relevent precedents to establish the course.

    For we geeks, we’ve often heard Asimov’s Foundation quote, “Never let your sense of morals get in the way of doing what’s right”. In this case there appears to be some warped sense of ethics or principal that’s getting in their way of doing what’s right. It happens. To the best of us. I think somewhere in their admittedly large brains is the thought, “So…they want me to go out on a limb for a guy who might not have pulled the trigger, but admits to standing there while it happened???” I think if this case were about some guy who was 100% detached from the crime, you might find the Scalias of the SP ready and willing to stretch previous interpretations to protect an innocent.

    So my opinion – there’s no need for an amendment. Scalia doesn’t say there’s a Constitutional problem or gap. He merely says the courts haven’t interpretted the Constitution this way in the past. And that there is some (left unsaid) reason for leaving that question untouched, or “unresolved”. Well…now they have. Next time this comes up we have precedent.

    Comment by tommyzib -

  28. Mark,

    In response to Jeremy’s comments, Scalia and Thomas are strict constructionists, not constitutionalists. But their dissents just goes to show what kind of ridiculous results can occur when you apply the law without any regards for real-life situations. There are expert computer systems that you can program to spit out accurate answers based on the information you have on databases. I am sure you can program a computer to be an expert on the Constitution. Instead of nominating human justices to the Supreme Court, have 9 computers decide. Would anyone want that?

    Justice isn’t about strictly applying the law or the “original meaning” meaning of the law. It’s also about compassion and common sense.

    Comment by trickyjokey -

  29. The first time that I heard this argument, I had just arrived in Houston for a meeting. The local news was on in my room, and a prosecutor that was being interviewed stated that he believed that one of the states inmates on death row should be executed, even though there was irefutable evidence found later that the inmate was innocent. He felt that the trial was fair. No errors were made, and the jury found the defendant guilty, so the sentence should be carried out. I was amazed at what I had just heard. When I told this story to people, no one really believed it. I still can’t.

    Comment by mrgone2a -

  30. From the Declaration of Independence, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”


    “un·al·ien·a·ble (ŭn-āl’yə-nə-bəl, -ā’lē-ə-)
    adj. Not to be separated, given away, or taken away;”

    If that doesn’t make the issue clear, I don’t that anything can.

    Comment by larryjohnsonjr -

  31. A very good explanation here

    Comment by ivop -

  32. This is disturbing, thanks for the info.. in fact it reminds me of a high school speech class, I had to pick a speech either for or against capital punishment…. I chose for it, because I thought it was the right thing to do at that time… Ever since that speech I’ve worried about the possibility of executing an innocent man and don’t really support it now, but probably would on a case by case basis. It’s troubling that our Supreme Court isn’t troubled by this either…

    Comment by digitald3 -

  33. WTF?

    Comment by akahn786 -

  34. Mark,

    Like you, I think the result is upsetting.. we shouldn’t be able to execute known innocent people. That said, I’m glad you see this as a constitutional issue, and you are not attacking the judges who are properly interpreting it. Justice Scalia is a strict constitutionalist, which is the only valid perspective for a Supreme Court justice. We have mechanisms for fixing the Constitution, and they should be used to correct this issue. I am dismayed by our Courts willingness to legislate from the bench.


    Comment by jfilliben -

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