Why Justice Scalia Is So Angry About Protecting the Innocent

The law, lawyers, and the court.
May 28 2013 3:58 PM

An Innocent Extension

The Supreme Court moves to protect the innocent, and Justice Scalia fumes.

(Continued from Page 1)

But it’s a pretty minor one. Justice Ginsburg makes clear that waiting around to file a habeas petition is still a bad idea because an “unexplained delay” is a strike against you. That is her answer to the state of Michigan’s complaint that a prisoner such as Perkins can “lie in wait”—for example, by holding back until an elderly witness who could rebut his new evidence has died. “The timing of such a petition,” Ginsburg cautions, “should seriously undermine the credibility of the actual-innocence claim.”  She also says “the standard is demanding” and that “cases qualifying for the actual-innocence exception will be rare.” Perkins, for starters, is probably out of luck because the district court judge who reviewed his habeas petition found that a reasonable juror could still have convicted him, despite the new evidence about the bloodstained clothes.

Maybe Justice Ginsburg went out of her way to open only a narrow gateway in hopes of averting the attention of Congress, which could slam the door shut by revising AEDPA if it gets mad enough about Tuesday’s result. In dissent, however, Justice Scalia says Congress should be furious. The court is not interpreting AEDPA, Scalia says, but rather rewriting it. SOS to Congress: “Judicially amending a validly enacted statute in this way is a flagrant breach of the separation of powers.” Attacking Ginsburg’s point that allowing for an exception to AEDPA’s one-year deadline merely brings federal law into line with the states, Scalia rockets into the derision stratosphere: “With its eye firmly fixed on something it likes—a shiny new exception to a statute unloved in the best circles—the court overlooks this basic distinction, which would not trouble a second-year law student armed with a copy of Hart & Wechsler.” Oh, wait, one more insult: He also calls Ginsburg’s interpretation a “blooper reel.” (Ginsburg called all of this “bluster.”)

Why is Scalia so enraged? Three reasons. First, that’s just his way. Second, he’s offended as a textualist—a judge who believes first and foremost in sticking closely to the wording of a statute. And third, like I said, this is the latest battle in a long-standing war. Back in the day of the Warren court, federal judges expanded their inquiries into habeas petitions out of concern that indifferent state courts were blithely dismissing these appeals. Scalia says this amounted to a “radically expanded” habeas review. Other judges would call it doing their job of ensuring that innocent people don’t rot in prison or wind up executed. But in the 1980s, the Rehnquist court started complaining about the "abuse of the writ” and narrowed the scope of habeas review. Then came AEDPA, tightening the windows of appeal.


For Scalia, the moral of the story is clear: Innocence doesn’t—and shouldn’t—always win. “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,” he wrote in 2009. Scalia lost that time, too. But in the end, the man he was writing about—Troy Davis—was executed for the murder of a Georgia police officer even though seven of the nine witnesses who testified against him at trial had recanted.

The execution of Davis, and the likely result for Perkins of life in prison, might suggest that the federal courts have never in fact widely welcomed habeas claims. Scalia tries to suggest otherwise by ending his dissent with three numbers: In 1953, prisoners filed 541 habeas petitions. In 1969, the number was close to 7,400. And in 2012, it was nearly 16,000. This is supposed to show that the habeas system is “already creaking at its rusted joints.”

In fact, the number of habeas filings ebbs and flows, generally along with incarceration rates, Cornell law professor John Blume says. In 2005, he did a study showing that the previous year, federal courts had granted relief in only 4 percent of death-penalty cases and 0.45 percent of all cases. The overall success rate hasn’t changed since then, though the rate of success in death-penalty cases has risen a bit, Blume told me.

Yes, reading habeas petitions takes some time, and reading more of them takes more time. But that’s just part of the job of the courts. Not even Scalia can stop defendants from trying to get their cases heard. If federal judges have their hands full, then it’s time to fill the many vacancies on the bench. There has been no opening of the habeas floodgates, and Tuesday’s decision won’t change that. Congress, don’t take Scalia’s bait. You have better things to do.


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