Former law clerks to Justice Scalia reflect on the late Justice and the future of constitutional interpretation 6:30 pm tonight at the National Constitution Center. Speakers include Steven Calabresi of Northwestern University School of Law, Lee Otis of the Federalist Society, Kevin Walsh of the University of Richmond School of Law, and Brianne Gorod of the Constitutional Accountability Center. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. Admission is free for Members, $7 for students and teachers, and $15 for the public. Registration is recommended for all events. Tickets can be reserved here or by calling 215-409-6700.
RELATED: One might wonder how [Scalia] can stay on the court after the revelation last week that two convicted murderers he once described as lucky to be given the blessing of a lethal injection have turned out to be innocent. That’s right, this is about the case everyone’s been talking about — the two brothers, both mentally disabled, who were railroaded onto death row some 30 years ago with coerced confessions by a corrupt police department. As the New York Times reported:
The case against the men, always weak, fell apart after DNA evidence implicated another man whose possible involvement had been somehow overlooked by the authorities even though he lived only a block from where the victim’s body was found, and he had admitted to committing a similar rape and murder around the same time. The startling shift in fortunes for the men, Henry Lee McCollum, 50, who has spent three decades on death row, and Leon Brown, 46, who was serving a life sentence, provided one of the most dramatic examples yet of the potential harm from false, coerced confessions and of the power of DNA tests to exonerate the innocent.
They were 19 and 15 at the time of the murder and their conviction was based on nothing more than their coerced confessions, one of which was said to have ended with the defendant saying, “Can I go home now?” It was a famous case, used often by law and order Republican politicians in North Carolina as an electoral cudgel with which to beat Democratic rivals over the head. The state appeals process eventually reduced the sentence of one of the defendants to life in prison but until a state commission with power to subpoena evidence looked into it, the DNA from the scene was not tested and other evidence from the crime scene that implicated another convicted rapist was never processed. When they were, they exonerated these two men.
What exactly was it that Justice Scalia said about them? Well, he cited this particular case in the decision on Collins v. Collins back in 1994 in which he disagreed with Justice Harry Blackmun on the constitutionality of the death penalty. This was the famous case in which Justice Blackmun disavowed his former support for capital punishment and declared that he would no longer “tinker with the machinery of death.” Scalia wrote, with characteristic sarcasm:
Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us, the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us, which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional, for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!”
Yes, how very enviable. Unless the defendants are innocent, in which case it is as horrifying as the brutal slaying of the victim, particularly after 30 years spent imprisoned in a small cell waiting for the day that he will know in advance he is to die. That alone is cruel and unusual punishment. Not that Justice Scalia sees it that way. MORE