While my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral.

-- Justice Antonin Scalia

One might wonder how he can stay on the court after the revelation last week that two convicted murderers he once described as lucky to be given the blessing of a lethal injection have turned out to be innocent. That's right, this is about the case everyone's been talking about -- the two brothers, both mentally disabled, who were railroaded onto death row some 30 years ago with coerced confessions by a corrupt police department. As the New York Times reported:

The case against the men, always weak, fell apart after DNA evidence implicated another man whose possible involvement had been somehow overlooked by the authorities even though he lived only a block from where the victim’s body was found, and he had admitted to committing a similar rape and murder around the same time. The startling shift in fortunes for the men, Henry Lee McCollum, 50, who has spent three decades on death row, and Leon Brown, 46, who was serving a life sentence, provided one of the most dramatic examples yet of the potential harm from false, coerced confessions and of the power of DNA tests to exonerate the innocent.

They were 19 and 15 at the time of the murder and their conviction was based on nothing more than their coerced confessions, one of which was said to have ended with the defendant saying, "Can I go home now?" It was a famous case, used often by law and order Republican politicians in North Carolina as an electoral cudgel with which to beat Democratic rivals over the head. The state appeals process eventually reduced the sentence of one of the defendants to life in prison but until a state commission with power to subpoena evidence looked into it, the DNA from the scene was not tested and other evidence from the crime scene that implicated another convicted rapist was never processed. When they were, they exonerated these two men.

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What exactly was it that Justice Scalia said about them? Well, he cited this particular case in the decision on Collins v. Collins back in 1994 in which he disagreed with Justice Harry Blackmun on the constitutionality of the death penalty. This was the famous case in which Justice Blackmun disavowed his former support for capital punishment and declared that he would no longer "tinker with the machinery of death." Scalia wrote, with characteristic sarcasm:

Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us, the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us, which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional, for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!"

Yes, how very enviable. Unless the defendants are innocent, in which case it is as horrifying as the brutal slaying of the victim, particularly after 30 years spent imprisoned in a small cell waiting for the day that he will know in advance he is to die. That alone is cruel and unusual punishment. Not that Justice Scalia sees it that way. (His comments suggest that the methods of punishment should be directly correlated to the luridness of the crime, an antediluvian concept rejected by the Enlightenment-influenced writers of the Constitution he alleges to take so literally.)

Death penalty supporters inevitably use cases like this to illustrate that "the system worked" and, by implication, always works. Except that's sophistry and everyone knows it. The only reason it worked in this case was because the state of North Carolina empowered an outside commission to investigate. And what they found was malfeasance, a coverup and a corrupt indifference to justice. The legal system obscured the truth at every level and every step along the way. There is no way of knowing how often that happens but any sentient being realizes that it is impossible that this was the only time.

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Worst of all, Justice Scalia and other death penalty proponents who find nothing immoral in the state's conscious, coldblooded taking of a life are equally unconcerned that they might be taking the life of an innocent person. The horrifying injustice in such a mistake (or criminal corruption) is irrelevant. Apparently as long as the train of the legal system runs on time there's no cause for him to lose any sleep. Indeed, Scalia has said so:

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.

This man claims that he could not be a judge if he thought his participation in the death penalty was immoral and yet he does not believe it matters under the Constitution if the state executes innocent people. How on earth can such a depraved person be on the Supreme Court of the United States? On what basis can our country lay claim to a superior system of justice and a civilized moral order when such people hold power?