Too disgusted to think of a snarky headline
By Dalia Lithwick on the mordant irony of a, as lawyers would say, “factually innocent” man being used by Justice (speaking loosely) Scalia as an exemplar of why it’s important to keep executing people:
It never fails to astonish me that the same conservatives who argue that every last aspect of big government is irreparably broken and corrupt inevitably see a capital punishment system that is perfect and just. If you genuinely believe that the state can’t even fix a pothole without self-dealing and corruption, how is it possible to imagine that police departments and prosecutors’ offices are beyond suspicion, even though they are subject to immeasurable political pressure to wrap up cases, even when the evidence is shaky and ill-gotten, and even as there are other avenues that have gone unexplored? Cops and prosecutors aren’t necessarily bad. But they are subject to political and community pressure that sometimes leads to improper conduct and the suppression of the evidence of that conduct.
Those who believe that we don’t execute the undeserving in America—or who aren’t too concerned about that possibility anyhow—have an ally in Justice Antonin Scalia. He famously insisted in Kansas v. Marsh that “”it should be noted at the outset that the dissent does not discuss a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.”
That same Scalia, in an unrelated case before the Supreme Court 20 years ago, name-checked McCollum as the reason to continue to impose the death penalty. In that case, Callins v. Collins, Justice Harry Blackmun famously announced in dissent that he would no longer “tinker with the machinery of death” and would never again vote for the death penalty in any case. As Blackmun put it at the time: “The problem is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.” In response, Scalia questioned why Blackmun hadn’t chosen a more grisly murder to make this announcement, specifically citing McCollum’s case as the more appropriate vehicle to announce that position. Scalia noted that all sorts of cases of truly horrendous murders came before the court, “For example, the case of an 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable,” he wrote, “a quiet death by lethal injection compared with that!” Never mind that “quiet death by lethal injection” has little to do with how our executions are carried out these days.
When McCollum’s own case came before the high court, Scalia voted not to hear it. Blackmun again wrote a dissent from that decision, again chastising Scalia for failing to understand the stakes: “Buddy McCollum is mentally retarded,” he explained. “He has an IQ between 60 and 69 and the mental age of a 9-year old. He reads on a second grade level. This factor alone persuades me that the death penalty in his case is unconstitutional.” Interestingly, Blackmun never seems to have doubted McCollum’s guilt. He simply believed the man was mentally unfit for execution. What a difference a few decades of DNA exonerations make!
(Of course Scalia considers strict adherence to procedural rules more important than not executing innocent people, so the irony here is somewhat muted).
McCollum’s case involves an all-too-familiar combination of factors: defendants with the mental age of small children, corrupt prosecutors, credulous juries, venal politicians, and a legal system, epitomized by Scalia’s sanctimonious bloviations, that puts faith in forms of evidence that, empirically speaking, are no great advance on trial by ordeal.
Read the whole thing and get mad.