The American Bear


The Needle and the Damage Done | Paul Campos

[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. - Supreme Court Justice Antonin Scalia

From Lawyers, Guns and Money:

As I have argued elsewhere, [Antonin] Scalia represents an extreme example of a certain kind of judge that positively revels in coming to conclusions that are morally revolting but “legally” sound. Judges of this type like these sorts of cases because they demonstrate that law is a supposedly nonpolitical and intellectually rigorous practice, rather than a touchy-feely exercise in doing what strikes the judge as the right thing.

What, after all, could be more nonpolitical and intellectually rigorous than executing an innocent man, simply because “the law” requires that result? In a perverse way, such bloody logic is a kind of advertisement for the supposed objectivity of the legal system, since we can assume that no sane decision maker would reach such a decision voluntarily. (The great legal historian Douglas Hay explained the 18th-century English practice of sometimes acquitting obviously guilty men on absurd procedural technicalities, such as incorrectly calling the defendant a “farmer” instead of a “yeoman,” in similar terms: “When the ruling class acquitted men on such technicalities they helped embody a belief in the disembodied justice of the law in the minds of all who watched. In short the law’s absurd formalism was part of its strength as ideology.”)

“The law’s absurd formalism was part of its strength as ideology.” Precisely. This insight applies to many more aspects of the legal system than the revolting spectacle of our contemporary system of capital punishment, which in a case such as Davis’s — which is not in this respect was not unusual — psychologically tortures the defendant, the defendant’s family, the victim’s family, and others connected to the case for literally decades before producing what the system then has the temerity to call “justice.” (The climax of this spectacle last night involved Davis being strapped to a gurney with a needle in his arm for nearly four hours, waiting for various legal personages to respond to the question of whether, all things considered, it was finally time to stop his heart with state-administered poison).

That we tolerate this kind of thing so readily helps explain, in its own way, why it sometimes seems impossible to do much of anything about the absurdities and dysfunctions of the system of legal education that legitimates it in the first instance. Or perhaps it’s the other way around: perhaps we tolerate the absurdity of something like the 22-year “process” that resulted in the horror of Davis’s final hours because we ‘re socialized from the beginning of our careers in this system to accept all kinds of absurdity and injustice as natural, inevitable, and therefore legitimate.