Justice Scalia: Ensuring Innocent People Get Out Of Prison Is A ‘Faustian Bargain’

scalia-e1364082903791From thinkprogress.org:

A man who may be locked up for a murder he did not commit should not be allowed to challenge his conviction, according to Justice Antonin Scalia and his three most conservative colleagues. And three members of the Supreme Court seem to believe that most people jailed due to unconstitutional convictions should have no recourse to the federal courts. At least, that’s what emerges from a four justice dissenting opinion written by Scalia in a case dealing with the rights of state prisoners who may be “actually innocent” of the crime they were convicted of committing.

McQuiggin v. Perkins is a fairly unusual case. After being sentenced to life in prison for murder, Floyd Perkins spent years gathering three affidavits from witnesses corroborating his claim that another man committed the crime. Yet he sat on this new evidence for nearly six years before presenting it to a federal court. Justice Scalia’s dissent claims that a one year statute of limitations prevents Perkins from presenting six year-old evidence that he may be innocent. Justice Ruth Bader Ginsburg’s majority opinion holds that “actual innocence” may overcome this one year time limit, although she also requires prisoners in Perkins’ shoes to overcome a very high bar before their claims of innocence may succeed in federal court.

Beyond the narrow issue presented by this case, however, the final paragraphs of Scalia’s opinion — three paragraphs that conservative Justice Samuel Alito pointedly chooses not to endorse — suggest a massive contraction of prisoners’ rights. Earlier in his opinion, Scalia claims that state prisoners’ right to challenge their conviction in federal court was “radically expanded in the early or mid-20th century to include review of the merits of conviction and not merely jurisdiction of the convicting court.” This is likely a reference to a controversial theory, championed by a young future Chief Justice William Rehnquist and later promoted by a conservative law professor named Paul Bator, that federal courts traditionally could not overrule state convictions so long as the defendant enjoyed minimal safeguards such as “counsel to argue all his points to the trial court, [access to] the state appellate courts” and the ability to seek Supreme Court review.

Scalia’s final paragraphs claim that the practice of allowing broad challenges to unconstitutional state convictions, including cases where a state prisoner may in fact be innocent, was a “Faustian bargain that traded the simple elegance of the common-law writ of habeas corpus for federal-court power to probe the substantive merits of state-court convictions.” As Scalia warns, permitting state prisoners to challenge their conviction in federal court leads to “floods of stale, frivolous and repetitious petitions [which] inundate the docket of the lower courts and swell our own.”

Justice Scalia is correct that judges have to do more work if potential innocents are allowed to seek vindication. Unlike prisoners locked up for crimes they did not commit, however, those judges will also get to go home every day.

5 responses to “Justice Scalia: Ensuring Innocent People Get Out Of Prison Is A ‘Faustian Bargain’

  1. Scalia. Personally, I find the man positively frightening.
    He is even convinced that the wrongful conviction rate in the US is 0.01%. Stupefying.

  2. Docile Jim Brady – Columbus OH 43209

    Lock up their children and grandchildren , with appropriate food , clothing and shelter , of course.

  3. It can not be said the United States does not have an injustice or wrongful conviction problem . The amount of wrongful convictions discovered are a small fraction of those that actually exist.
    Most are undiscovered since attorneys , courts, police, and prisons have an interest, political and economical, in keeping the convictions they obtain from being revealed as wrongful. The interests are not in favor of justice no matter how much they declare themselves to be the sole purveyors of justice. Time and again the interests prove to be power at all costs.
    In 2006, 1* a report concluded that New York’s system of indigent criminal defense has failed its constitutional and legal obligations to provide effective assistance of counsel to the indigent accused. With at least 80% of NY prisoners being the indigent accused, there is a substantial amount of convictions that are not only unreliable and questionable, but outright unconstitutional and illegal. It has became standard procedure to arbitrarily dispose of people, and the idea held by many that those merely accused of crime deserve no rights is already a working reality. The Civil Commitment mandates are an example of steps in this direction. Where people may be imprisoned not upon any actual act crime, but upon an ” authority’s” idea of the likelihood to commit a crime. While it applies only to sex offenders at first because nobody likes them, once the practice is established and the bugs worked out it will be applied to all. It was not that long ago that the same tactic was applied to required DNA collecting. . DNA was first required by law to be taken from only sex offenders. Then violent offenders, then all offenders, despite concerns of invasion of privacy, ect. The steady progress of tyranny has always been advanced under such pretended goals of safety, security, and fixing problems.
    In the beginning it may sound like a good solution to problems of mass incarceration. But with this ground work laid the future is open for ever greater enslavement of the population. It may present an opportunity to have a captive workforce ready in the community that does not need to be given a salary. It may have other results that are not fully known at this point.

    • Docile Jim Brady – Columbus OH 43209

      jlo1965 10 July 2013 Wednesday at 11:32 am

      “It can not be said the United States does not have an injustice or wrongful conviction problem . The amount of wrongful convictions discovered are a small fraction of those that actually exist.
      * * * *
      “The steady progress of tyranny has always been advanced under such pretended goals of safety, security, and fixing problems.
      In the beginning it may sound like a good solution to problems of mass incarceration. But with this ground work laid the future is open for ever greater enslavement of the population.”

      The above observations deserve the 2½ minute “Amen” of Handel’s Messiah

      Dr. Hans Frank opined on 5 July 1935 that the statute abolishing the concept of nullum crimen, nulla poena sine lege or no punishment without a prior law forbidding the offending conduct , was “a milestone on the road to a National Socialist penal law.” fn.1

      “Whoever commits an action which the law declares to be punishable or which is deserving of punishment according to the fundamental idea of a penal law and the sound perception of the people, shall be punished. If
      no determinate penal law is directly applicable to the action, it shall be punished according to the law, the basic idea of which fits it best.” (Law of 28 June 1935 changing the Penal code permitting punishment under analogous law” (1935 Reichsgesetzblatt Part I, page 839)

      Today , 11 July 2013 is the 50th anniversary of the effective date of Ohio’s legislation forbidding the consumption of “beer” in a motor vehicle.

      Several days prior (28 September 1962) a rogue judge convicted me of consuming beer in a motor vehicle on 10 September 1962. He also ensured that no court reporter or other method for effective appellate review was present at trial. His misconduct and injustice was intentional.

      fn.1 Journal of Criminal Law and Criminology Vol. 26, No. 6, Mar., 1936 Punishment by Analogy in National Socialist Penal Law by Lawrence Preuss , Department Of Political Science , University of Michigan .

  4. I can only hope that this man is one day wrongfully convicted and goes to prison without a chance for any recourse.

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