Friday, August 21, 2009



By : Mr. Clarence Thomas, Associate Justice, United States Supreme Court (1991-present) (appointed by President George H.W. Bush; confirmed by the United States Senate 51-48); Chairman, Equal Employment Opportunity Commission (1982-1990); J.D., Yale Law School (1974); Affirmative Action Beneficiary; Affirmative Action Opponent; Republican; Champion, Supreme Court Building Cafeteria Cheeseburger n’ Fries Eating Competition (1998, 2003, 2005)(Runner-Up to Sandra Day O’Connor (1999); Runner-Up to William H. Rehnquist (2004)); Member, The Federalist Society; Republican.

Early this week, my colleagues issued an extraordinary order granting Troy Davis—a Georgia death row inmate—an opportunity to challenge his conviction for a murder that happened 20 years ago. Three courts have already reviewed his conviction. A Georgia jury found him guilty in 1991. Georgia wants to just get the show on the road and put him to death. My good friend Justice Scalia dissented from this madness and I joined him. He basically said that the law requires some finality in death penalty cases. He said the law does not permit us to free convicted killers because we think they are “actually innocent.” And he said that the Constitution allows States to execute people even if they are “actually innocent.” After all, if you’re guilty “in law,” it doesn’t matter if you’re not guilty “in reality.” Here at the Supreme Court, we only care about the law, not reality.

I joined Justice Scalia’s well-reasoned dissent. But I have a right to add my own thoughts about this case. All too often, Justice Scalia gets to say all the fun stuff and I just silently sign on. This time I want to say a few things myself because I care deeply about this issue. This is a case about black men on death row. I just want to say for the record: I don’t give a brother a break. If a brother wind up on death row, shee-yit, he ain’t gonna get no love from old Uncle Thomas. That be what it is.

Justice Scalia did a fine job explaining what the law says about so-called “postconviction relief.” But Justice Scalia can be a little technical. I like simpler language, even if it involves the law. So today I’m going to explain what Justice Scalia meant in laymen’s terms. I’m also going to talk about why I don’t give a brother a break. Bottom line: When States want to execute black men, they can count on my full support. After all, the law says that States can execute convicted black men. The law says that black men can only appeal their convictions under certain circumstances. If they don’t follow the procedures—or the appeals court affirms the conviction—that’s it: Dead playa walking. I respect the law in this area. And the law says we need finality after juries speak, innocence or not. Not just that, I’m a Federalist. States have a right to execute black murderers. As a Federal judge, who am I to stand in their way?

Let’s start with the Constitution. Let’s get rid of the argument that the death penalty is unconstitutional. Like Justice Scalia, I believe the text provides the answers here. We just need to look it up. First, the Constitution doesn’t use the words “death penalty,” “execution,” “innocent” or “actually innocent.” All it says is: “..nor shall any State deprive any person of life…without due process of law…” (U.S. Const. Amd. XIV, § 1). Well, if it says the State has to give “due process of law” before “depriving life,” that necessarily implies the State can deprive life. There wouldn’t be a rule qualifying how the State deprives life it couldn’t deprive life in the first place. So the text says States can execute people. That’s enough for me.

American tradition allows executions, too. Justice Scalia always likes writing about colonial history and 17th Century England to make sense of what the Constitution says. I like it, too. I basically just follow his lead. He is right that States used to execute people in 1787. In fact, they executed lots of people, even for stealing and adultery. They just hanged them from a sour apple tree and buried them in the pasture. They even burned and whipped slaves to death. But back in those days, killing a slave wasn’t even capital punishment, because slaves weren’t people by law. You can only execute a person. Life sure was easier back then.

Of course, liberals like to say that capital punishment is “cruel and unusual” under the Eighth Amendment. Well, we resolved that argument in Gregg v. Georgia, 428 U.S. 153 (1977). Call me old fashioned, but I’m all about precedent. When we decide a case, we need to stick by the result. In that case, we said that the death penalty was not “cruel and unusual;” so out goes that argument. Who am I to contradict the Court? We need to follow what we said in the past, and in 1977 we said that capital punishment is not “cruel and unusual.” That’s enough for me to throw out any liberal contention to the contrary. Precedent is precedent.

Being a Supreme Court justice is not as hard as you think. You just look at the text, listen to Justice Scalia’s lectures about American tradition and check to see if the Court has already said something about the issue in the past. If it has—and you agree with the result—you follow it. If it hasn’t, you do whatever you want. In some tougher cases, the Court says something in the past and you don’t agree with it, like in Roe v. Wade, 410 U.S. 113 (1973). In those cases, you need to overrule the law. But that’s not the case here.

This case involves a Federal law called the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Although Justice Scalia discusses the statute at length in his dissent, I want to discuss it in simpler terms. Basically, AEDPA makes it tough for convicted black murderers to throw out their convictions. Congress enacted the law because black guys were gumming up the system by filing hundreds of Federal petitions asking for “writs of habeas corpus.” For those who don’t know, “writs of habeas corpus” allow black guys to challenge their State convictions in Federal court (don’t ask me anything else, like what it means in Latin, because I don’t know; ask Justice Scalia about that). This took up way too much time. I’m talking decades; executioners got out of practice. Some black dude might have committed murder in 1978, yet the State wouldn’t get around to strapping him down to the lethal injection table until 2007. I echo Judge Joe Brown when I say: “Justice delayed is justice denied.”

Thankfully, the AEDPA cut down on these delaying tactics. Now, black guys get one shot at habeas corpus. And Federal courts can’t overturn a State conviction unless it rests upon a “clear violation of constitutional law as construed by the Supreme Court.”

Basically, AEDPA says: “Screw you” to all black guys who think they can land a “Get out of Jail Free Card” from some Clinton appointee in Federal court. And there is nothing wrong with that. After all, the law is the law. Who am I to question the law?

But this is where Troy Davis comes in. Troy Davis is a convicted black man. He appealed all the way through the Georgia State courts, then applied for habeas corpus in the Federal courts. He lost every time. In every case, the appeals courts said that the “evidence was sufficient” to sustain his conviction. Under AEDPA, he had his one shot at habeas. He lost. Now, he’s trying to appeal directly to the Supreme Court. After losing three times, his lawyers dredged up some new evidence. They say that all the witnesses who said he killed the security guard perjured themselves. These witnesses have even sworn out affidavits recanting everything they said about Davis; they all say the accomplice killed the guard, not him. In other words, Davis is trying to say that he is “actually innocent,” and that it would be unconstitutional for Georgia to execute an “actually innocent man.”

No it wouldn’t. Like I said before, the Constitution doesn’t say anything about “innocence” and “execution.” Rather, the law requires us to allow Georgia to carry out the execution as scheduled. This is not about innocence. This is about law and procedure. Procedure says that black guys get only one shot at habeas under AEDPA. Davis got it. Our court rules say that black guys can appeal directly to the Supreme Court only in “exceptional circumstances.” U.S. Supreme Court R. 20.4(a). Yet these are not “exceptional circumstances.” Davis is not the only black murderer who says “he’s innocent.” I don’t care whether all the witnesses recanted their testimony. This is not a new argument. AEDPA bars federal courts from rehearing any argument that has already been made. Davis is just repeating himself, no matter what affidavits he’s shuffling. Procedure says Davis is done. Who am I to question procedure?

I fully join Justice Scalia’s remark: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually innocent.’ Any claim based on ‘actual innocence’ is not constitutionally cognizable.” In re Davis, 557 U.S.___ (2009)(slip op. at p. 2). Let’s be honest here. Troy Davis had a full and fair trial. It does not matter that all the witnesses recanted their testimony and that police investigators admitted they coerced people to accuse Davis. Georgia paid for the trial; are we going to make Georgia pay for another one? Nor does it matter that Davis’ attorney bordered on ineffectiveness. Davis had a fair trial. The jury found him guilty. By law, that verdict subjected him to Georgia’s criminal code. Georgia’s criminal code prescribes the death penalty for murder. The jury imposed that sentence. The State afforded Davis all the procedures it could possibly give him. Not only that, Davis took his innocence claim all the way through both Georgia’s court system and the Federal courts, despite the AEDPA’s prohibition.

Put simply, Davis has had too many chances. The State has paid exorbitant sums defending against Davis’ frivolous arguments. He has exhausted all his legal remedies. It’s time to let Georgia inject this guy with some potassium bromide. This is what the law requires. I follow the law.

I also join Justice Scalia’s observation that Davis’ case represents a “capital conviction in full compliance with law.” In re Davis, 557 U.S. __(2009)(slip op. at p. 5). Here on the Supreme Court, we look no further than the law, provided we agree with it. In this case, the law is the AEDPA. The AEDPA prescribes procedures intended to stop black guys from gaming the criminal justice system with frivolous “innocence claims” decades after they shoot police officers. Additionally, the AEDPA preserves the State’s interest in quickly executing black criminals, as well as protecting the finality of jury verdicts. Remember, we’re talking about law. Under law, we must believe the jury. Juries decide facts, not judges. In this case, the jury said that Davis killed the security guard. Who are we to question a jury, even if we later learn that the jury heard perjured testimony? We need to put our foot down on appeals like this. Every black guy on the planet is going to say “it wasn’t me.” Does this mean we have to grant a new trial every time?

I can tell you this: “Not on this negro’s watch.” From where I’m standing, juries are always right, especially when they sentence black guys to death. I’m not going to contradict a jury, nor am I going to stop a southern State from executing a black man. Federalism says that States have a right to execute black men in their own borders according to local law. There’s nothing unconstitutional about that. States have rights, too, not just black murderers. The Constitution gives you the right to fair trial, not the right to escape execution for “innocence.” Like I said, the Constitution doesn’t use the words “innocent” or “execution.”

I need to say a few more things about “innocence.” All these liberals are up in arms about Justice Scalia’s remark that the Constitution does not prevent the State from executing “actually innocent” black guys. They say it shocks the conscience to allow States to execute people who may be “guilty in law” but are “actually innocent in fact.”

I disagree. On the Supreme Court, we deal with the law, not with facts. From where we sit, there is no truth beyond what the law prescribes. I don’t care if a convicted defendant totally undermines the basis upon which the jury found him guilty. In law, we must trust the jury. We need some finality in our system. As judges, we cannot philosophize about “truth” and “facts.” And we don’t need to: Who needs “truth” when you have law? Law provides all the answers, even if they are fictional. We don’t listen to conscience. We listen to law. Conscience is uncertain; law is crystal clear. In Troy Davis’ case, the law clearly dictates that he “had his chance.” It does not matter what “actually happened.” If we had to weigh the “truth” in every death penalty case, States would never get to lethally inject, shoot, hang, electrocute or gas anybody, black, Hispanic or Cherokee. As judges in a Federal system, we cannot tolerate that result. We must follow the law, not the truth.

Truth is for philosophers. Law is for administrators. We are just trying to settle on some orderly administration here. That’s all Justice Scalia was trying to say. I agree with him. I’d also like to add one personal comment about Troy Davis’ “actual innocence” argument: “Playa, pleeze.”

Now would you please excuse me? I have more important things to do. It’s lunch time and there’s a cheeseburger n’ fries competition today. If I don’t practice now, I might lose to Justice Alito.


Timoteo said...

Justice Scalia is someone who has lost his way...and lost his humanity.

Balthazar Oesterhoudt said...

I wonder whether he ever had any to begin with, quite honestly. Of course, he'll tell you that humanity has nothing to do with "detached legal analysis."

But that is where he and I part intellectual company. I think humanity and law should go hand in hand. He disagrees. This tension drives all my satire about his misguided jurisprudence on many issues.