A Shiny New Exception: Innocence

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.

–Emily Bazelon, Slate, 2013

Nino was not nice to Justice Ruth Bader Ginsburg.  Writing for the Supreme Court in McQuiggin v. Perkins, holding that the draconian one year time limit on habeas review under the Antiterrorism and Effective Death Penalty Act (AEDPA), which bears President Bill Clinton’s signature, does not preclude untimely claims of actual innocence.


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.
The trick, apparently, is that the habeas court is persuaded that there is merit to the late claim of innocence and is permitted to hold a hearing to determine whether there is a basis to excuse the late filing before reaching the question of innocence.


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.”
Not only is this an extremely high bar, but it requires the habe court to determine the strength of the actual innocence claim in order to determine the strength of the actual innocence claim. So nice, they have to do it twice? Well, apparently so, since the test for the threshold question, relief from the untimely filing, is the same as the test for the ultimate question, grant of habeas corpus based upon innocence.

If this makes your head hurt, you’re not alone.


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.”
Ouch. But if that wasn’t mean enough, Scalia refuses to open the car door for Ginsburg.


Oh, wait, one more insult: He also calls Ginsburg’s interpretation a “blooper reel.” (Ginsburg called all of this “bluster.”)
As Bazelon notes, it’s not like this is a new issue for the Supremes, as Nino has taken the position for years that the Constitution does not prohibit the execution of innocent people.


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.

If the arguments could be wholly detached from any moral imperative, Scalia likely has the better side of the argument. From a purely rational view, the Constitution defines process, not outcome. Nowhere does it provide a bottom line, that no innocent person be convicted, that no innocent person be executed.  The horror of the AEDPA’s absurd time restraints is a blight on Congress and the President, but is it the court’s place to change its express terms because, well, it’s an absurd, awful law that prevents an innocent person from obtaining habeas relief?

But then, there are moral imperatives that belie our nation, and Nino’s refusal to admit to a wrong so contrary to our most fundamental principles (remember that life, liberty and the pursuit of happiness thingy, Nino?) undermines his uber-detached line of reasoning. In other words, there is a bottom line that overcomes an otherwise clear application of logic and rules, and that bottom line includes that no innocent person in the United States of America should be put to death.

Remarkably, the rationale for the hideous AEDPA time limitations, that too many prisoners were filing too many habeas corpus petitions and taking up too much judge time, really has nothing to do with the issues confronting the death row inmate who asserts his actual innocence. There just aren’t enough of them to make judges sweat due to their very hard job of reviewing the papers.

But even if they did, so what?  Does anybody want to be from the country that puts innocent people to death because it’s too much work not to?  Anybody but Nino, I mean.

20 comments on “A Shiny New Exception: Innocence

  1. Jim Majkowski

    I do think Nino has the better of the argument, notwithstanding his uncouth way of expressing his disagreement, and the ugly consequence of the law.

    Lincoln is said to have said, “the best way to get a bad law repealed is to enforce it strictly.”

    And for a really old, one, consider Thucydides: “Of all manifestations of power, restraint impresses men the most.”

    Yes, this can lead to lots of bad results. That’s a certain consequence of governments whose applicant pool is limited to human beings.

  2. David Sugerman

    From way far away, one might conclude that the literalist like Scalia is little more than completely loyal to his textual core. Like Spock. Or Jean Valjean. The bitter, heated rhetoric of his dissents suggests something far less flattering: a partisan hack committed at all costs to his particularist views of right and wrong. Add some famous SCOTUS non-sequiturs (Bush v Gore, Citizens United, AT&T Mobility v Concepcion) and one can’t escape the conclusion that Scalia et al are simply committed to a radical vision that they will reclaim via their own form of activism. Put another way: If actual innocence is not an available path to exoneration, why bother with a judicial branch?

  3. SHG

    The problem I have with Nino’s point is that substantive due process, fundamental fairness, trumps everything. To execute an innocent person just ain’t fundamentally fair, no matter what.

  4. Jim Majkowski

    I wouldn’t care to speak for him. Much of his public presentation is abhorrent to me. But I do think that judges should remember they are judges, not 17th century French nobility with powers of low, middle and high justice. As for the unfairness of executing innocent people, maybe we should start blaming the state governors who don’t exercise their powers to pardon and commute instead of looking to a lawyer who knew a Senator (as ED Mich DJ Avern Cohn has put it) to right such wrongs.

    I do admire your thinking and am flattered each time you address one of my prattlings.

  5. mt45

    And how about also blaming (and also better utilizing) state processes that already exist for the presentation of new evidence in motions for new trials?

    This ongoing habeas battle has given this false status to habeas proceedings as this place where justice can be done. Even after the two wins yesterday, actual innocence is not a habeas claim. You do not get habeas relief just because you’re innocent. Scalia is the only one that says that out loud, but it’s still true. Somtimes it seems like the heavy defense resources aren’t deployed until the habeas stage, at which point its way too late.

  6. SHG


    Sometimes it seems like the heavy defense resources aren’t deployed until the habeas stage, at which point its way too late.

    That’s a critical point. Where’s the effort and interest at a time when it can save the defendant from conviction rather than a decade and reversal of burdens later.

  7. Dave Glebe

    Both the author and Scalia are simply incorrect that the Constitution deals only with “process” and not outcomes. Just read the Eighth Amendment. It doesn’t say cruel and unusual punishments (an outcome) may be imposed as long as due process requirements have been satisfied. It addresses “outcomes” alone, in a flat-out categorical sense, apart from process. Having practiced habeas law for almost 13 years, I still have not heard an argument as to why the execution — or even the punishment, for one day — of an actually innocent person does not violate the Eighth Amendment’s categorical ban on such an outcome. Has Scalia read the Eighth Amendment?

  8. SHG

    It’s a good argument, but it was rejected in the 6-3 decision of Herrera v. Collins, the court held that the execution of an actually innocent person doesn’t violate the 8th Amendment as the death penalty is not, in itself, cruel and unusual, and the defendant was afforded due process.  That’s how we end up here, arguing the process piece. 

    As far as I’m aware, the 8th Amendment has never been held to be an “as applied” prohibition of punishment because of the nature of the defendant, but rather a prohibition as to the nature of a particular type of punishment per se.

  9. Dave Glebe

    I’m well aware of Herrera, which I think will someday rank alongside of Dred Scott and Plessy and Bush v. Gore. It’s just wrong on so many grounds. (I was a prosecutor for 22 years, with 26 years of legal practice in all, and 13 years doing habeas work, including capital cases.)

    As for the “as applied” distinction, that’s exactly the kind of lawyerly hairsplitting that I could never stand about the practice of law. Basically you take some straightforward proposition, twist the hell out of it, and finally get the result you want. Scalia should listen to himself when he says “the Court has never held that X,” because if the plain text of the Constitution already says something, then who the hell cares if “the Court” has never “held” that the sky is blue or that water is wet? Just read the damned Eighth Amendment — it’s purely outcome, not process.

  10. Norm DeGuerre

    Scalia let his true feelings slip out a few years ago while speaking at an event. His personal opinion is that people who happen to be on death row have probably committed some sort of murder, if not the one that they were actually convicted of.

    In short, Scalia doesn’t believe that anyone on death row might actually be innocent. So of course he’s scandalized.

  11. SHG

    There’s no disagreement here about the wrong of executing an innocent person and that Herrera is a terrible decision. I would go a step farther, to say that it’s wrong to convict and imprison an innocent person. To argue that the 8th Amendment prohibits it because it says so, on the other hand, isn’t that easy. People make the argument that “it means what it says” all the time, except their view of what it “obviously” says is all over the place, and they argue it with the same vehemence and obviousness. Usually, it works to the defendant’s great disadvantage.

    It’s easy to argue to people who share confirmation bias. We need to remember that the same rules that we argue should be applied to reach our desired result will, in someone else’s hands, prove disastrous.

  12. Dave Glebe

    I think there’s another aspect to the hostility on Scalia’s part, along with those like him, to claims of actual, factual innocence in the habeas context. Suppose, for example, that most of the people in American prisons who were making that claim were upper-middle class, well-educated, older, white (or even Italian) males — in other words, people who looked like Scalia — rather than young, uneducated, poor, minority males. I cannot fathom that people like Scalia would be so hostile to actual innocence claims if that demographic was their genesis, rather than an economic and racial underclass that is, and has been, essentially (and literally) written-off by those like Scalia. (By the way, I have never been a defense lawyer — I spent four years in corporate law and 22 years as a prosecutor, so shouldn’t my confirmation bias on this issue go in the other direction?)

  13. SHG

    Oddly enough, I may have some insight on this aspect. Having a close friend who attended Xavier High School (which was a Catholic school, but with a strong ROTC military academy tilt) with Nino, he told me that Scalia was just as hard-hearted (my word) then as now. He was an officer and was as strict with others who shared the same flavor as him. In other words, he was as much of a hump with educated, middle-class, white and even Italian schoolmates. While we can impute many things to Nino, I doubt this is one of them.

    [Ed. Note: I originally inexplicably wrote La Salle Military Academy, which was just a mistaken memory on my part. It's now changed to Xavier, which is the correct school.]

  14. Brett Middleton

    Forgive a non-lawyer trying to grasp the issues. I’m not trying to make anyone stupider here, just trying to make myself smarter. With that disclaimer out of the way …

    I have always thought that “cruel” referred to punishment that was excessive for a particular crime and “unusual” referred to punishment that was substantially different than that meted out to others convicted of similar crimes. Am I in the ballpark on that or do lawyers see it differently?

    In that view, then, a 20-year prison sentence is not innately cruel or unusual as there are crimes that certainly deserve such an outcome. Yet suppose that sentence was given to someone who committed a far lesser crime that should result in, say, a one-year sentence. Would it not then be both cruel (excessive) and unusual (not equivalent)? If so, then it seems as if “as applied” is the only distinction that can be made in determining whether a violation of the Eighth has occurred.

  15. SHG

    When we say “as applied,” it means specific to a particular case. The question you raise, say 20 years for jaywalking, is not an “as applied” issue, because it doesn’t matter who is doing the jaywalking, but anybody charged with that offense and sentenced to that term of imprisonment would suffer an 8th Amendment violation.  A real life example is juveniles sentenced to life without parole, which was just recently prohibited in Miller v. Alabama.

  16. Brett Middleton

    Okay. So “as applied” means something much more specific when the term is used by a lawyer than what the term suggests to someone like me. Is there a term that a lawyer would use to distinguish between *types* of cases, such as manslaughter vs. jaywalking where the 20-year sentence would not be a violation in the first case but would in the second?

    I guess I’m a little befuddled because you spoke of the Eighth as prohibiting particular punishments based on their nature in themselves, which does not seem to leave room for distinctions based on the general target of the punishment, such as jaywalkers or juveniles. Do lawyers consider, for example, “life without parole” as having a different “nature” when applied to a juvenile instead of an adult? (He asked, with trepidation, fearing the answer might be “yes” which will mean he’s beginning to think like a lawyer.)

    But, if that is the case, why would a punishment not have a different “nature” when applied to an innocent defendant instead of a guilty one?

  17. SHG

    I think you’re still misunderstanding things. Sorry, but I don’t know that I can explain it any more clearly than I already have.

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