I'm always open to a good anti-capital punishment argument. As regular readers will know, I'm highly conflicted on the issue, and my opinions have been all over the map. But let's keep the debate honest, OK?
Justice Antonin Scalia is taking a lot of grief over the news that DNA evidence has cleared brothers Leon Brown, who has been serving a life sentence, and Henry Lee McCollum, who has been facing the death penalty for 30 years, of a 1983 rape and murder. He had said of their case that the "quiet death by lethal injection" was much preferable to the fate of the 11-year-old girl in the case, who was raped and then killed by having her panties stuffed down her throat. He has also said, of another case, (and this is the part that been widely quoted by critics) that the Supreme 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."
The Journal Gazette took note of the sarcasm of Scalia's remarks and doubted that he would ever have doubts or second thoughts about a death penalty decision. Writing in Salon, Heahter Digby Parton, is nothing less than outraged:
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?
But Scalia was note exactly saying it is moral to knowingly execute an innocent person and that hw would be OK with that. Reading a little further into his remarks, we find:
Scalia refers to “the unhappy truth that not every problem was meant to be solved by the United States Constitution, nor can be.” He further opines that “it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.”
Note very wrong can be righted by the Constitution, in other words. Scalia is simply recognizing that he "doesn’t have a roving commission to prevent such a wrong."
DNA evidence is either complicating the death penalty debate or simplifying it, depending on who is doing the talking. I've heard its growing significance cited by death penalty opponents who use every case of a wrongly imprisoned person as part of their arsenal, and by death penalty proponents, who say it's becoming ever-more unlikely that an innocent person will be executed.