William Blackstone, the 18th century English jurist whose thinking influenced the nation's founders and American law, famously said it's better that 10 guilty people go free than for one innocent person to suffer.
U.S. Supreme Court Justice Antonin Scalia begs to differ.
In a blistering dissent Tuesday in McQuiggin vs. Perkins, Scalia stakes out a stunning position that the court's three other conservatives join: State prisoners with evidence of actual innocence should not necessarily get their day in court.
Welcome to "tough luck" justice. An innocent person moldering in prison for life is the collateral damage of a system willing to put expediency above the truth, and Scalia's fine with it.
The prisoner seeking federal review, Floyd Perkins, was convicted of murder and sentenced to life in prison without parole. Perkins later obtained affidavits from three witnesses that pointed to another man as the murderer, but didn't submit the findings to the federal courts for six years.
Scalia's dissent says that Perkins' habeas petition is barred by the Antiterrorism and Effective Death Penalty Act, a federal law passed in 1996 that imposes a one-year limit from the time that new evidence could have been discovered.
By contrast, the majority decision by Justice Ruth Bader Ginsburg, in which moderate Justice Anthony Kennedy joined the court's four liberals, would allow a narrow opportunity for people with strong claims of actual innocence to get into court regardless of the time that had elapsed.
This "fundamental miscarriage of justice" exception, Ginsburg explains, recognizes that society's interest in finalizing cases and conserving court resources has to give way in extraordinary cases when an individual's justice interests are overriding. Basically, if new evidence makes it "more likely than not" that no reasonable juror would have voted for a conviction, federal courts can take another look. (Perkins' affidavits, it turns out, don't seem to meet this test. There is strong evidence of his guilt.)
It must take some acrobatic mental jujitsu to justify having the federal courts stand back from evidence of actual innocence. Scalia's reasoning is that because Congress set the statute of limitations, the court has no power to carve out an exception. He accuses the majority of violating the separation of powers.
But it is the job of the federal courts to protect people accused of a crime from having their rights eroded by lawmakers responding to popular demands. Congress passed the 1996 act explicitly to make it harder for prisoners they viewed as annoying to repeatedly challenge their convictions. Now, though, in an age of DNA testing when we know that innocent people can spend decades in prison fighting a faulty conviction, the court has a duty to recognize that the law's strict limits cannot be a bar to valid claims of actual innocence. Justice demands it.
The most disturbing part of the ruling is that Scalia seems hostile to the very idea that the federal courts should be a backstop when states wrongly convict. In Scalia's final paragraphs, he says the high court made a "Faustian bargain" when 60 years ago it said the federal courts could review the substantive merits of state convictions. (Justice Samuel Alito refused to join this portion of the dissent.) The result was a flood of unworthy habeas petitions, Scalia complains. But he never says what he would do about the meritorious ones.
The ruling, while narrow, suggests that there are four justices who would reject Blackstone's "10 guilty persons" maxim. Conceivably, they would allow an innocent person to spend the rest of his life in prison because he missed a statutory deadline. For the poor, powerless and dispossessed — the people most likely to fall through the cracks of justice created by this ruling — it is proof that a portion of the court thinks their lives are expendable.