United States Supreme Court Associate Justice Antonin Scalia, one of the Court’s most ardent defenders of the constitutionality of capital punishment, has died at age 79. Appointed to the Court in 1986 by President Ronald Reagan, Justice Scalia voted to uphold the application of the death penalty in a wide variety of circumstances. He was part of 5 – 4 conservative majorities in a number of significant death penalty cases, including the 1987 decisions in McCleskey v. Kemp severely limiting the ability of capital defendants to obtain relief for race discrimination in the application of the death penalty and in Tison v. Arizona permitting the execution of offenders who neither killed nor intended that a killing take place, but exhibited reckless indifference to human life. An avid adherent of what he called “textualism,” Justice Scalia chafed at the Court’s use of “evolving standards of decency” to exempt individuals and offenses from capital sanctions. He voted in support of state laws permitting the imposition of the death penalty against juvenile offenders and those with intellectual disabilities and was undaunted by the prospects of executing the innocent. Writing that “[t]his 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,” Justice Scalia opposed reviewing the innocence claim presented by Troy Davis (In re Davis) after 7 eyewitnesses had recanted their testimony. His 2006 concurring opinion in Kansas v. Marsh expressed doubts that any innocent person has been executed in the U.S. In 1994, in Callins v. Collins, Justice Scalia singled out the brutal murder of an 11-year-old girl as epitomizing the need for capital punishment. Twenty years later, DNA evidence exonerated Henry McCollum, the intellectually disabled North Carolina man who had been sentenced to death for that murder. Justice Scalia succinctly expressed his views on the constitutionally of the death penalty at a book signing at the American Enterprise Institute in 2012, saying, “The death penalty? Give me a break. It’s easy.” Often acerbic in his treatment of opposing views, Scalia described criticisms of the constitutionality of the death penalty in Callins as “sanctimonious.” In 2015 in Glossip v. Gross, he called the arguments suggesting that the death penalty may be unconstitutional “gobbledy gook.” But last fall, he conceded in public appearances that he “wouldn’t be surprised” if the Court ultimately declared the death penalty unconstitutional.
(M. Sherman, “Justice Antonin Scalia dead at 79,” Associated Press, February 13, 2016; Death Penalty Information Center, “Statements on the Death Penalty by Supreme Court Justices”.) See U.S. Supreme Court.