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.

The justices of the U.S. Supreme Court gather for a group portrait in the East Conference Room at the Supreme Court Building in Washington, October 8, 2010.
The justices of the Supreme Court in 2010

Photo by Larry Downing/Reuters

In 1996, Congress cracked down on defendants who repeatedly try to go to court to overturn their convictions. The Antiterrorism and Effective Death Penalty Act (AEDPA), signed by President Bill Clinton, created a thicket of new requirements for people in prison who file last-ditch appeals—called habeas corpus petitions. The idea was that once you’ve lost your first and only direct appeal, you should only get a single try at habeas corpus (the “great writ,” dating from the 14th century, that allows a prisoner to sue his warden for release). And you were supposed to get moving quickly: The law generally imposed a new deadline of one year from the date on which you lost your direct appeal.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Congress made an exception, however: If you say you have new evidence, then you have one year from the day you could have discovered it through “the exercise of due diligence.” But what if you miss the deadline without any good excuse—and yet the new evidence could show that you are innocent? On Tuesday, the Supreme Court widened what it called the “gateway” to reviewing claims of actual innocence that are made long after the one-year deadline expires. It’s a 5-4 decision, split between liberals-plus-Kennedy and conservatives. The opinions, by Justice Ruth Bader Ginsburg and Justice Antonin Scalia, read like a pitched battle in a long-simmering war. At the end, Ginsburg succeeds in opening what she calls a “gateway” to court for innocence claims that blow by the one-year deadline. But it’s probably not wide enough for Floyd Perkins, the prisoner at the center of this case, to get his own habeas petition heard.

In 1993, Perkins left a party in Flint, Mich., with two other men, Rodney Henderson and Damarr Jones. Henderson was found later, on a trail in the woods, stabbed to death. Jones said Perkins did it. Perkins said Jones did it. Two other witnesses implicated Perkins, and he was convicted and sentenced to life in prison in 1993. He lost his direct appeal a few years later, and his conviction became final in 1997.

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In 2008, Perkins filed a habeas appeal, with evidence he said could prove his innocence. It included a witness saying that Jones had blood on his clothes on the night of the murder and an employee from a dry cleaner saying that around the same date, a man looking like Jones brought in pants and a shirt heavily stained with blood.

Since we are in AEDPA land, the lower courts couldn’t just decide whether this evidence gave them enough doubt about Perkins’ conviction to order a new trial. They had to first determine whether they could excuse Perkins for missing the law’s one-year deadline. Perkins didn’t argue that he’d been exercising due diligence and couldn’t help having taken 11 years to go back to court. He said that because he had evidence of actual innocence, he should get an exception to the one-year cutoff.

In theory, a majority of the Supreme Court has now agreed to such an exception. “Actual innocence, if proved, serves as a gateway through which a petitioner may pass,” Ginsburg wrote. But she also warned that “the exception applies to a severely confined category.” It is not enough for Perkins to assert that he has evidence of his innocence. He also has to show that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”

That’s a high bar. In effect, it means that to figure out if people like Perkins are entitled to a hearing about whether they have strong evidence of innocence, judges will have to first hold a hearing to figure out whether there is strong evidence of innocence. If you’re a judge whose attention is caught by a habeas petition because you’re concerned that an innocent person may be in prison, AEDPA’s one-year deadline won’t stop you from taking a close look. That’s a victory for defendants and for the growing cadre of Innocence Projects around the country.

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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