Innocence is not cause for exoneration: Scalia’s embarrassing question is a scandal of injustice.

The Scandal of Our Criminal Justice System: Innocence Is No Reason to Get Out of Prison

The Scandal of Our Criminal Justice System: Innocence Is No Reason to Get Out of Prison

The law, lawyers, and the court.
March 11 2015 9:37 AM

Scalia’s Embarrassing Question

Innocence is not enough to get you out of prison.

Juan Melendez (right), a former death row inmate who was exonerated, listens to testimony during a hearing before the Senate Judiciary Subcommittee on the Constitution on June 12, 2002, in Washington, D.C.
Juan Melendez (right), a former death row inmate who was exonerated, listens to testimony during a hearing before the Senate Judiciary Subcommittee on the Constitution on June 12, 2002, in Washington, D.C. Melendez sat on death row in Florida for almost two decades before a court finally overturned his murder conviction.

Photo by Alex Wong/Getty Images

In May, the Innocence Network will hold its annual conference at a glitzy Hilton in Orlando, Florida. Lawyers, students, and activists from all over the country who work to overturn wrongful convictions will gather to do all the regular conference-like things: attend panel discussions, listen to inspirational talks from boldface speakers, network, and socialize. There is also a part of the Innocence Network Conference that is unique and wonderful. Every year, it brings together scores of wrongfully convicted men and women, offering a variety of programs geared toward their specific needs and celebrating their freedom.

The most dramatic moment of the conference comes after a dinner in the hotel’s ballroom, when each exonerated man and woman is invited up to the stage. One by one, they come forward. They are male, female, black, white, Latino, Asian, and Native American. Some are still young and strong, others walk slowly and with assistance. They hail from the Deep South, the Midwest, the Rockies, the East and West coasts, from big cities and tiny rural communities. As their names are called, so are the number of years they served behind bars: five, eight, 13, 18, 28, 34, 39. Collectively, it adds up to centuries.

Slowly, the stage begins to fill, first one row, then another, then another. When every last exoneree has taken his or her place, scores of them are standing shoulder to shoulder, a dizzying tableau of faces and stolen lives. The weight of the collective injustice is heart-stopping. Then the music starts and the exonerees sing and dance together. The hope and joy in the room is deeply moving.

Kirk Bloodsworth shows pictures of the convicted murderer Kimberly Shay Ruffner during an AFP interview in his apartment in Mount Rainier, Maryland, on Sept. 26, 2012. Bloodsworth was the first American sentenced to death row who was exonerated by DNA fingerprinting
Kirk Bloodsworth shows pictures of the convicted murderer Kimberly Shay Ruffner during an AFP interview in his apartment in Mount Rainier, Maryland, on Sept. 26, 2012. Bloodsworth was the first American sentenced to death row who was exonerated by DNA fingerprinting.

Photo by Mladen Antonov/AFP/Getty Images


But here is a dirty little secret about the exonerated, some of whom were on death row, some just days away from execution. They were able to prove that they were wrongfully convicted, yet very, very few could show that they were actually innocent. They were—they are—innocent, but in our legal system, that all-important fact is largely beside the point.

A wrongful conviction stems from a fundamental breakdown in the legal process—what the uninitiated like to call a “technical error.” Prosecutors buried crucial evidence, witnesses lied, police coerced false confessions, defense attorneys performed so poorly that they basically failed to advocate at all. These “technical” breakdowns matter because they violate the Constitution, which guarantees all criminal defendants the right to be free from police and prosecutorial abuses, to have access to favorable evidence in the state’s possession, and to have a defense attorney who will fight for their cause.

If you are a wrongfully convicted man or woman in this country, it is extremely difficult—if not outright impossible—to win your case by advancing the simple argument that you are innocent. Sounds crazy, right? But it’s true. The Supreme Court has repeatedly declined to hold that the federal Constitution allows for so-called freestanding claims of innocence, that is, the right to be let out of prison simply because you didn’t do it, without any other “technical” violation to back up your argument. In the United States, the inmate who raises a compelling case of innocence after a constitutionally proper trial may well be doomed.

This judicial perversion started with the Supreme Court’s 1993 decision in Herrera v. Collins, a textbook example of bad facts making bad law. Leonel Torres Herrera was charged with shooting Officer David Rucker in 1981 and leaving him to die beside his patrol car in a pool of blood. Also left at the crime scene was Herrera’s Social Security card. Officer Enrique Carrisalez and his partner saw Herrera’s car speeding away and gave chase. Herrera pulled over, and when Carrisalez approached, Herrera shot him in the chest. Carrisalez died less than two weeks later.


The state tried the Carrisalez case first, and evidence introduced against Herrera was overwhelming. Carrisalez’s partner testified that Herrera was the shooter, as did the victim himself in the days before he died. The license plate of the killer’s car matched that of Herrera’s girlfriend; when Herrera was arrested, he had the car keys in his pocket. He also had a handwritten letter in which he apologized for the killings. A jury convicted Herrera of capital murder, he was sentenced to death. After the verdict, Herrera pleaded guilty to killing Rucker.

Nine years later, Herrera petitioned the Supreme Court to overturn both convictions. Because so many years had passed and because Herrera had been convicted in state court, he had to use a legal vehicle called habeas corpus, a centuries-old, last-ditch remedy that allows prisoners to argue that their imprisonment violates the federal Constitution. Because there is a strong presumption that the criminal justice system functioned correctly in the first instance, only a fraction of these claims succeed.

Herrera argued that he should be among the lucky few because newly discovered evidence proved his innocence. The evidence consisted of three sworn statements. One was written by a lawyer for Herrera’s dead brother, Raul, claiming that Raul confessed to him that he had killed Rucker and Carrisalez. The second, signed by a former cellmate of Raul’s, claimed the same thing. The third, signed by Raul’s son, claimed that he had witnessed his father shoot both officers.

By no stretch of the imagination could these biased affidavits—which conveniently blamed the murders on a dead man—prove Herrera’s innocence of the Carrisalez and Rucker murders, the latter of which he flat out admitted to committing. Herrera’s innocence claim, quite simply, was a farce. And yet it was this claim that the Supreme Court chose to review when deciding a profoundly important question: whether any inmate with newly discovered evidence of innocence could argue that his conviction had been obtained in violation of the constitutional guarantees of due process and protection against cruel and unusual punishment.


Writing for the majority, Chief Justice William Rehnquist said that Herrera’s constitutional argument had “elemental appeal” but declined to endorse it because federal courts were not supposed to “relitigate state trials.” Herrera’s true remedy, Rehnquist said, rested with the president or the governor of his state, whose power to grant clemency was the “fail safe in our criminal justice system.” Entertaining actual innocence claims brought years after the fact were simply too “disruptive” and unfair to the state, which needed to have things settled once and for all. Rehnquist mused that even if one assumed, hypothetically, that an innocence claim could be brought, the bar for the prisoner to clear “would necessarily be extraordinarily high.”

Concurring in judgment, Justices Antonin Scalia and Clarence Thomas would have gone even farther. Taking issue with the majority’s mere hypothetical entertainment of an innocence claim, Scalia wrote: “There is no basis, tradition, or even in contemporary practice for finding that in the Constitution the right to demand judicial consideration of newly discovered evidence of innocence brought forward after a conviction.” He concluded, “With any luck, we shall avoid ever having to face this embarrassing question again.”

In 1996, things got even harder for convicted prisoners. Congress passed a law declaring that federal courts could not overturn a conviction challenged in habeas corpus petition unless the state court that heard the case first was either “unreasonable” in applying a law that was clearly established by the United States Supreme Court or the state made factual findings that no reasonable person would agree with.

The profound impact of the new law, coupled with the Herrera decision, was brought into stark relief in the case of Troy Anthony Davis. Davis, a young black man, was charged with shooting and killing Mark MacPhail, a white police officer who was trying to protect a homeless man from being beaten in a parking lot in Savannah, Georgia. At Davis’ trial in 1991, seven people identified him as the killer, and two others testified that Davis confessed to them after the fact. The murder weapon was never recovered, but bullets and shell casings recovered from the scene came from a .38-caliber pistol. One of the prosecution’s witnesses was a man named Redd Coles. On cross-examination, Coles conceded that he had argued with the homeless man on the night of the crime and that he owned a .38 pistol. The jury convicted Davis in less than two hours.


Throughout the legal proceedings, Davis maintained his innocence. After his conviction, as the jurors prepared to deliberate on the appropriate punishment, Davis asked them to “spare my life,” explaining that he had been convicted for “offenses I didn’t commit.” The jury returned with a death sentence. Davis appealed all the way up to the Georgia Supreme Court. He lost. Then he began filing habeas corpus petitions, first in Georgia state court and then in federal court. He lost again.

Then, in 1996, new evidence surfaced. Of the nine crucial prosecution witnesses, seven recanted some or all of their testimony, stating that they had felt pressure to identify Davis as the shooter when he was not. Three witnesses signed sworn statements that Redd Coles had confessed that he was MacPhail’s killer. Davis went back to state court with the new evidence, but the courts refused to hear it, saying it was too late. Davis went back to the federal courts, which agreed that it was too late. Out of options, Davis appealed to the United States Supreme Court, arguing that the new evidence should be heard because he was actually innocent.

The “embarrassing question” was back. In a short order issued on Aug. 17, 2009, the Supreme Court instructed a federal trial court judge to hold a hearing so that the recanted testimony and new evidence of Coles’ confession could be aired. Scalia and Thomas issued a blistering dissent. The Supreme Court, Scalia pointed out, had sent the trial judge on a “fool’s errand” because it 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.’ ” It was pointless to find Davis innocent because innocence, by itself, was not a legal basis to overturn the conviction.

Michael Henry and other protesters for Troy Davis gather on the steps of the Georgia State Capitol in Atlanta on Sept. 20, 2011, the day before Davis’ execution
Michael Henry and other protesters for Troy Davis gather on the steps of the Georgia State Capitol in Atlanta on Sept. 20, 2011, the day before Davis’ execution.

Photo by Jessica McGowan/Getty Images

The trial judge held a hearing nonetheless and concluded that Davis had not shown enough evidence to cast doubt on his conviction. Davis appealed, arguing that the trial judge had shown a “clear hostility” to his case. He lost, appealed, and lost again. Meanwhile, Davis’ case had gained unprecedented international attention. More than a half-million people signed a petition asking the Georgia State Board of Pardons and Paroles to commute Davis’ death sentence. Among the signatories were Archbishop Desmond Tutu, former President Jimmy Carter, and Pope Benedict XVI. The board denied the petition, and President Obama declined to intervene in the case.


On Sept. 21, 2011, one hour before Davis was scheduled to be executed, the Supreme Court reviewed his petition. A few hours later, they denied it without comment. Davis was now officially out of mercy, out of appeals, and out of time.

Asked to speak his final words, Davis told the MacPhail family that he grieved for their loss. “But,” he said, “I am innocent.” He continued, “For those about to take my life, may God have mercy on your souls.” The official time of death was 11:08 p.m. More than 1,000 people attended the funeral.

Whether proof of innocence should be grounds for release—from decades of wrongful imprisonment and even from death—is an “embarrassing question” but not in the way that Scalia meant. It is an embarrassment—it is a scandal—that no such right exists when we know how often the system gets it wrong. Last year alone, 127 men and women were freed from prison after their convictions were overturned. Because of the way that our system is structured, most fall into the category of the “lucky” ones—lucky because cheating, lying, laziness, or negligence made their legal proceedings grossly unfair.

There are many more still to be freed. The most conservative estimate is that there are somewhere between 10,000 and 20,000 innocent people locked up in the United States today. How many more Troy Davis cases will the Supreme Court tolerate before it does what is so obviously the right thing? If the execution of an innocent person isn’t cruel and unusual punishment, what is?