Scalia’s and Empathy

If you listen, you can almost hear the media maelstrom of Justice Sotomayor’s confirmation be collectively forgotten. Of course there’s bigger and more current news, so why shouldn’t it take it’s rightful place in the footnotes of history books to be read only reluctantly? Well, the Supreme Court’s recent activity frames the whole debate in another way that deserves a look by the main stream media.

“This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent,” read Justice Scalia’s opinion, dissenting from the majority that agreed with Justice Stevens (and I argue anyone with a shred of decency) when he said that “[t]he substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.”

Essentially what just happened was that Scalia, the GOP’s shining example of someone who doesn’t let empathy get in the way of following the letter of the law, doesn’t think putting an innocent man to death outweighs the fact that the Supreme Court has never before overturned the execution of a person even if it can be proven after their trial that they are actually innocent. Forget that Troy Davis’s prosecution rested entirely on witnesses, which all recanted, except for the star witness, which is now the primary suspect.

Troy Davis: “actually” innocent

Antonin Scalia: “actually” a douchebag

The debate, if it wasn’t merely obstructionism, was over the role of empathy in the court. “Empathy” was the much belittled word that was intended to describe in some way the spirit of the law rather than the letter.  Shouldn’t our justice system err on the side of caution? How much better is it to kill someone who is actually guilty than not kill someone who is innocent?

I guess I could understand hesitation to answer those questions if one weren’t aware of how many people our justice system condemned to die who were found to be innocent (or at least evidence used to prove their guilt was found to be bunk). It’s a hard number to be certain about, but in a country with more prisoners per capita than even China (to be fair, China is sort of a prison), if even .5 percent of those who are sent to death row are innocent, then we are greatly remiss in our society, and I would wager that .5% is a conservative guess. One circuit court judge, Thomas Maloney, was caught accepting a $10,000 bribe and in 1998 admitted to killing “15 to 20″ people by accepting money to fix murder trials.

Adding to my cynicism in a system which Scalia has far too much trust in, is recent news about forensic science departments across the country, which are grossly underfunded and are not held to rigorous standards or even any kind of quality control, let alone the extreme faliability and falsifiability of DNA and fingerprint evidence (though to his credit, Scalia was part of the majority decision in Melendez-Diaz v. Massachusetts, which gives defendants the right to subpoena the forensics scientists behind any forensic evidence used in a case) .