A few days ago, Judge Richard Kopf posted about a political blogger who calls herself “Digby.”
Digby, I want to discuss your Salon piece of yesterday, to wit: Scalia’s Utter Moral Failure Exposed. That’s the one with these subtitled lines, “He doesn’t think executing an innocent man matters. How on earth can such a depraved human be on our Supreme Court?”
Judge Kopf didn’t think well of Digby’s post for an array of reasons, but mostly because her disagreement with her simplistic view of Scalia’s outcome failed to recognize its place in law.
A perfectly moral, and a perfectly just, argument supports the assertion that our Constitutional order requires due process in the death penalty context as in all others but never perfection. If it were otherwise, and as Scalia tentatively reasons, the words of that great document would be different and, in particular, the notion of “democracy” in the death penalty realm would become meaningless. No lesser person than the great Justice Oliver Wendell Holmes once said, “If my fellow citizens want to go to Hell I will help them. It’s my job.”
Justice Antonin Scalia wrote in his dissent to the Supreme Court’s order directing the district court to consider Troy Davis’s habeas:
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. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.
This has been interpreted as Scalia saying it’s constitutional to execute an innocent person, and indeed, it’s an unavoidable interpretation. But Judge Kopf’s defense of Scalia was not that he agreed with him, but that adhering to the law was neither “immoral” nor “depraved.” Rather, it was what was demanded of the job of judge.
Judge Kopf, in another post, took things a step further, offering his own views.
“The truth is that many federal judges, and I would suppose many state judges as well, understand that the death penalty has and will continue to result in the innocent being put to death in some small percentage of the cases.” I wrote those words in a post yesterday and a thoughtful commentator responded that such a statement “merit[s] further exploration and discussion.”
The sentence warranting “further exploration” is a provocative one. It asserts that, as long as we have death penalty, innocent people will be executed. “Some small percentage,” perhaps, but some. And that, ultimately, must be accepted, Judge Kopf says, as part of the judge’s job.
When I took my oath of office as a federal district judge in 1992, I knew that someday I might condemn an innocent man to die. I willing accepted that risk when I took that oath, and I willingly accept that risk now. I will have to live with my knowing choice if such a horror comes to pass. I will have no one to blame but myself. However, I am not unique.
Except as noted in the following three paragraphs, I do not know what I would do if I were confronted with a case where the petitioner was factually innocent of murder and I knew that the petitioner was factually innocent of murder but there was no federal legal remedy available to stop the execution. However, I do know this: I would move heaven and earth to stop the execution, but I would not play games with the law to do so.
Judge Kopf then offers a few hypotheticals of how this would play out.
- Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that there was precedent that compelled such a result. For example, should the Supreme Court hold that factual innocence is not cognizable as a “stand alone” federal claim, I would follow that precedent.
- Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that the petitioner could also resort to a fair and speedy pardon process prior to the execution.
- Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that the petitioner had “sat on his rights” thus contributing to the absence of a legal remedy to address his factual innocence.
Each of these hypos contains qualifying language, which gives pause to what he is really saying. Yet each produces the same result. A factually innocent person, who the judge knew to be factually innocent, would be executed. The judge doesn’t justify this as a reflection of morality, but as a manifestation of justice.
He doesn’t suggest this is a good outcome, but rather a required outcome. He states that his authority as a judge is to follow the law, even when it demands the execution of a person he knows to be innocent.
[S]ince ours is an aggressively democratic society, Holmes and Hobbes (and probably me) would argue that judges ought generally to fulfill the will of the electorate when it comes to the death penalty even if the unintentional sacrifice of a small number of innocents is the cost of maintaining a system that the people have intentionally selected despite their knowledge of the risk.
Judge Kopf has always expressed a strong belief in democracy, that the people get the government they choose. And, I would assume, deserve. For better or worse, his role within that democracy is to execute the will of the people, as nasty and brutish as it may be. It is a principled position, and one that all lawyers embrace to some extent.
But death is different. Part 2.