Looking back on Scalia's 2006 Kansas v Marsh opinion

This wikilog article is a draft, it was not published yet.

by: Ryan • September 3, 2014 • no comments

In a 2006 death penalty case, Kansas v. Marsh, Justice Scalia, in a very Scalia-like manner, mocked the dissent by Justice Souter, who wrote that various death penalty precedents suggested that the Kansas death penalty statute could not stand up to "reasoned moral judgment" and he called the Kansas death penalty statute "morally absurd," "a moral irrationality," and "obtuse by any moral or social measure."

Scalia's biting opinion, however, made the following observation: "it should be noted at the outset that the dissent does not discuss a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.”

Twenty years earlier, Scalia had mocked an earlier dissent in a capital case, the famous Blackmun dissent. In that opinion, Callins v. Collins, Scalia mentioned a particularly grisly murder. As Dahlia Lithwick wrote today,

In that case, Callins v. Collins, Justice Harry Blackmun famously announced in dissent that he would no longer “tinker with the machinery of death” and would never again vote for the death penalty in any case. As Blackmun put it at the time: “The problem is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.” In response, Scalia questioned why Blackmun hadn’t chosen a more grisly murder to make this announcement, specifically citing McCollum’s case as the more appropriate vehicle to announce that position. Scalia noted that all sorts of cases of truly horrendous murders came before the court, “For example, the case of an 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable,” he wrote, “a quiet death by lethal injection compared with that!” Never mind that “quiet death by lethal injection” has little to do with how our executions are carried out these days.

Justice Scalia was quite correct that the poor young girl suffered a horrible death. But Mr. McCollum, who was convicted of that horrible murder, was never executed, peacefully or otherwise. This week, he was released from death row after a finding of actual innocence.

I have written before about a case out of Texas where it appears an innocent man was in fact put to death. But even if we had no evidence of any case where an innocent man had been executed, as Scalia said in Kansas v. Marsh, it's not for lack of trying.