Antonin Scalia and the Sleep of Reason

September 17, 2014
"Leucocephalus" Phil Hansten

“Leucocephalus” Phil Hansten

“…the gallows is not merely a machine of death, but the oldest and most obscene symbol of that tendency in mankind which drives it towards moral self-destruction.”

Arthur Koestler, Reflections on Hanging

By now most of you have heard that two mentally disabled half-brothers from North Carolina, convicted of a brutal murder of an 11-year old girl, have been exonerated and released. Both Henry Lee McCollum and Leon Brown spent 30 years in prison for a crime they did not commit; McCollum spent it on death row. This is nothing new, you say. After all, 144 defendants on death row had already been exonerated and released for reasons of innocence. But this case is different in one significant respect.

In 1994, using the McCollum case as an example, Justice Antonin Scalia dismissively (does he have another way of communicating?) rejected then-justice Harry Blackmun’s claim that the death penalty is unconstitutional. But instead of proving Scalia’s point, it turns out that the McCollum case is the perfect example of why the death penalty should be abolished. If Scalia were a reflective thinker rather than a reactive ideologue, he would acknowledge that he was dead wrong on this case, and perhaps consider the possibility that he is wrong about capital punishment in general. Don’t hold your breath.

Justice Scalia refuses to acknowledge that our criminal justice system is fatally flawed in its application of capital punishment. His mind-numbing obstinacy appears to arise primarily from his rejection of incontrovertible facts, but also through his distortion of data. It is truly unfortunate that the longest serving justice on the current Supreme Court is no more capable of rational thought than your raving crazy uncle at Thanksgiving. (I realize that I am venturing into ad hominem territory here, but there are rare times when it seems almost required.)

So how Justice Scalia demonstrate his inability to apply reason to capital punishment? Let us count the ways.

First, Scalia denies that we have a serious problem of putting innocent people on death row. A rational person would look at the now 145 people exonerated and released from death row, and admit that our criminal justice system—one that metes out an irreversible punishment—is badly broken. But Scalia dismisses or ignores the simple fact that we regularly convict the innocent in capital cases.

Secondly, Scalia rants about the failure of death penalty opponents to show him a single case of an innocent person who has been executed. Scalia’s demand is irrational and disingenuous, however, because once a person is executed, efforts to prove his innocence basically stop. There are so many potentially innocent people still alive on death row, that the efforts are focused on them. Moreover there are many cases where the evidence does in fact suggest that the executed person was probably innocent, such as Cameron Todd Willingham, who almost certainly was innocent of setting the fire that killed his 3 children. Rick Perry, the oligosynaptic “hang-‘em-high” governor of Texas, ensured that Willingham would be executed by replacing key members of the Texas Forensic Science Commission just days before they were to hear from a forensic expert who would testify that the evidence in the Willingham case was invalid. Rick Perry… tough on crime… soft on the truth.

Third, Scalia has resorted to an unconscionable distortion of data. In 2007, Scalia wrote in a concurring Supreme Court opinion that the error rate in the American criminal justice system is a paltry 0.027 percent. Nonetheless, as Samuel Gross and colleagues pointed out in their scholarly 2014 paper in the normally staid Proceedings of the American Academy of Sciences, Scalia’s claim is “silly.” Actually, “silly” is a charitable characterization given Scalia’s egregious distortion of the facts. As Gross, et al point out, Scalia committed the flagrant error of taking the exonerations known at the time for murder and rape (which what almost certainly a very small subset of the actual false convictions) and divided that number by all felonies for any crime, including things like income tax evasion. It is a sad day when a Justice of the highest court in the land makes a claim that would earn an “F” on a paper if he submitted it as freshman in a criminal justice class.

Finally, Antonin Scalia has now become famous for claiming that executing the innocent is not unconstitutional. Is Scalia actually saying that we can commit any repugnant and outrageous act as long as it is not against the constitution? Moreover, we do have the Eighth Amendment to the Constitution that prohibits “cruel and unusual” punishments. If executing the innocent is not cruel, I’m not sure what could be possibly be classified as cruel. Vincent Rossmeier stated in Solon, in an understatement of Olympic proportions, that Scalia’s views on the constitutionality of executing the innocent “…suggested a certain callousness…” I would take it a step further: If you are actually arguing that it is okay to execute innocent people, you need some serious therapy, not a lifetime appointment on the Supreme Court.

Plato knew about people like Justice Scalia, and would have called him a “philodoxer”—defined as a person who is especially fond of his or her own opinions, without having objectively investigated the facts of the situation. We all encounter people like this in our daily lives, and we are all guilty of this failing to one degree or another. We do not deserve, however, to have a flagrant and unrepentant philodoxer on the Supreme Court.

Nonetheless, one does not have to focus on the irrationality of a Supreme Court Justice to decide whether or not we should have the death penalty. If one considers the empirical evidence objectively, an astonishing conclusion appears: A rational person looking at the data on capital punishment in the US would necessarily come to the conclusion that the death penalty almost certainly results in a net increase in the deaths of innocent human beings. You heard that right. Capital punishment most likely increases the deaths of innocents and the reasoning is very simple.

First, there is no credible evidence that capital punishment reduces future murders. Deterrence was debunked in the 1950s by Arthur Koestler (whom I quoted above) in perhaps the most eloquent and penetrating essay ever written on the death penalty, entitled “Reflections on Hanging.” Moreover, a panel of the Committee on Law and Justice of the National Research Council concluded in a 2012 report that the evidence for the death penalty acting as a deterrent has no basis in fact.

Indeed, the available evidence actually points to a “brutalizing effect” which is the term criminologists use to describe an increase in the murder rate in the presence of the death penalty. A poll of leading criminologists found that while only 2.6 percent of criminologists think that capital punishment is a deterrent to future murders, 18.8 percent feel that the death penalty increases the murder rate. These are only educated opinions, of course, but they certainly show that the experts in the field do not support the deterrence effect.

Other evidence adds more embarrassment to the death penalty proponent. It is uncontested that the murder rate is substantially higher in states that have the death penalty than in those without it. And it is also true (as pointed out by Koestler) that the murder rate usually decreases when countries abolish the death penalty. If the data were reversed, we can be sure that death penalty advocates would be citing the figures incessantly. Death penalty opponents, however, are generally willing to admit that these data do not prove that the death penalty increases murders, even though the data suggest it.

Secondly, the evidence that innocent people are regularly condemned to death row is overwhelming. The fact that 145 people on death row have been exonerated cannot be ignored. Moreover, Samuel Gross and colleagues calculated in their recent publication (mentioned above) at least one in 25 people sentenced to death in the US is innocent of the crime for which they are condemned. The conclusion is clear: If the death penalty does not prevent murders but does result in the execution of innocent defendants, capital punishment results in a net increase in the deaths of innocent human beings. There is no other rational way to interpret the data.

I am optimistic that when these uncomfortable facts become common knowledge, the obscene and dehumanizing spectacle that is the death penalty will be no more.



  1. Unfortunately there’s not much dialog. Capital punishment won’t be abolished by convincing politicians or jurists, but only when public opinion turns decisively against. Since it is rare, most people don’t assign much priority to opposing it publicly, even when they don’t like it.

    • Good points. I think you are absolutely right on this. I am hopeful (perhaps too hopeful) that the positive change we have seen in public opposition to the death penalty over the past decade or two will continue. It is almost 50-50 now, and it has been almost 2 to 1 in favor of the capital punishment in the past. So here’s hoping!

  2. Thanks for this Phil. I have been quite puzzled over the years when even liberal pundits talk of Scalia’s “dazzling brilliance,” etc. I have read maybe three or four of his writings and opinions and I have always found them so full of obvious holes and obliviousness to contrary evidence and ideas that it stuns me. Where did this trope about his brilliance get started in the first place?

    • Thanks, Dan. Yes, this has puzzled me too. My theory is that Scalia is very good at memorizing, and that accounts for his high grades in school. But he does not have the kind of intelligence that can incorporate (or even accommodate) nuance and ambiguity into reasoned arguments. He is reactive rather than reflective. So he is one of those people who score very high on IQ tests, but really can’t use that high intelligence productively. Edward de Bono (in his book “I Am Right. You Are Wrong”) used the analogy of a Ferrari being driven by an incompetent driver for people like Scalia. Anyway, that’s my take on it, but Scalia may have some other problem I know nothing about!

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