Today’s discussion reminds me of what is actually the biggest howler in Scalia’s infamous Herrera concurrence:
I nonetheless join the entirety of the Court’s opinion,including the final portion, because there is no legal error in deciding a case by assuming arguendo that an asserted constitutional right exists, and because I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.
Scalia’s blithe certainty that passing the buck to governors and/or special committees will ensure that innocent people will not be executed had been conclusively disproven by the case of Cameron Todd Willingham. A governor and his death panel can proudly sign off on the execution of a man who is clearly legally innocent and almost certainly factually innocent. And not only will you not pay any political price for it, you can do this and be a credible candidate to be president of the United States, even if you go so far as to actually suppress a commission that threatens to reveal the truth. The Davis case is not as unambiguous, but further demonstates that parole boards will not be compelled to act even when a death sentence is known to rest entirely on evidence that is known to be unreliable.
All of this makes me very ambivalent about the pardon power. The Davis case is a perfect example of a case where executive intervention to (at a minimum) commute the death sentence is an appropriate remedy. But the problem is that in practice arbitrary processes aren’t particularly likely to identify the most suitable cases. This is especially true because the political incentives in states with the most procedurally flawed death penalties will tend to compel keeping the railroad to the death chamber running. And the presence of additional safeguards create the additional risk that it will make other appellate judges feel as comfortable about washing their hands of responsibility as Scalia does.