Court Tests Limit on Death Penalty Appeals

Constitution doesn't forbid executing the innocent: Scalia
By Nick McMaster,  Newser Staff
Posted Aug 18, 2009 3:00 PM CDT
This photo released by the Georgia Department of Corrections shows death row inmate Troy Davis.   (AP Photo)
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(Newser) – The Supreme Court’s ruling that Troy Davis deserves a new hearing raises questions about how far the legal system is willing to go to make sure an executed man is actually guilty, writes David Von Drehle for Time. Under a 1996 law limiting death-penalty appeals, Davis is out of options. But the Supreme Court left itself the option—unused until yesterday—of issuing a writ of habeas corpus if it believes the prisoner may be innocent.

Justice Stevens’ opinion assumes that the Court has the right to intervene on behalf of the Constitution—but the Constitution does not specifically forbid executing an innocent person, as Justice Scalia notes in his dissent. Further complicating matters, the Court assigned a district judge to review Davis’ case—though the 1996 law says Davis has no more lower-court appeals. It remains uncertain whether it is legal for the Supreme Court to listen to the district judge’s ruling.