Talk:Herrera v. Collins

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[edit] Scala's opinion.

The following was written as Scalia's rebuttal to O'Connors claim that executed actually innocent people is uncostittutional but i'm not sure itt acurately reflects what he actually siad:

Justice Scalia, in his concurring opinion, disagreed: "[The majority opinion makes] perfectly clear what the answer is: there is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the Constitution a right" not to be executed by the State even if provably innocent of any crime. What Scalia actually says is:

I would have preferred to decide that question, particularly since, as the Court's discussion shows, it is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. In saying that such a right exists, the dissenters apply nothing but their personal opinions to invalidate the rules of more than two thirds of the States, and a Federal Rule of Criminal Procedure for which this Court itself is responsible. If the system that has been in place for 200 years (and remains widely approved) "shocks" the dissenters' consciences, post, at 1, perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of "conscience shocking" as a legal test.

I nonetheless join the entirety of the Court's opinion,including the final portion (pages 26-28)--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 [n.1] 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. [1] I'll let someone else try and interpret what he is saying her and add it back if they want. --Cab88 07:29, 21 June 2007 (UTC)