He stated in a recent dissent over a recent grant of an original habeas corpus petition by the U.S. Supreme Court in the case of Troy Davis, in the face of post-trial recantations by almost all of the witnesses against him and a confession of guilt for the murder by someone else who is in prison:
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.
Professor Alan Dershowitz, at Harvard Law School, explains what this means:
Let us be clear precisely what [Scalia's dissent] means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: "Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she's dead, and as for you, Mr. Innocent Defendant, you're dead, too, since there is no constitutional right not to be executed merely because you're innocent."
Justices Scalia, Thomas and Alito are extremists in their conservatism. Their utter lack of empathy has blinded them to the nature of the United States Constitution.
Six of the eight Justices of the U.S. Supreme Court (the two not in the majority are believed to be Scalia and Thomas) were not willing to take the extreme position of Justice Scalia in the Troy Davis case. Justice Sotomayor did not participate in the decision, but it is safe to assume that she would also not take the position of Justices Scalia and Thomas on the constitutionality of executing people who can demonstrate to a court that they are factually innocent.
Surely, as a matter of principle, this is not what the Founders or the political community today, expects the Constitution and its criminal justice system to do in these cases. And, there is solid evidence that innocent people are convicted of capital murder inaccurately. There are 135 people in the U.S. who have been exonerated as innocent after becoming one of the 7,469 people who have spent time on death row since 1973.
Losing The Battle, Winning The War
However, while Scalia and Thomas have lost this battle, in the war, their position has carried the day. The federal courts play a very small role in overturning state court convictions and sentences, granting relief about once per 20,000 inmates per year in non-capital cases, and about once per eight people sentenced to death (often vacating the death sentence but retaining a lengthy prison sentence).
Federal habeas corpus exonerations for actual innocence under current law probably not more than about 3 people in non-capital cases, and 1-2 people in a capital case per year, nationwide. These numbers make the original petition to the U.S. Supreme Court habeas corpus process used in the Troy Davis case this month for the first time in half a century look like an attractive approach to handling these cases, as merits review of discretionary grants of actual innocence petitions (particularly if limited primarily to death penalty cases), when granted, are unlikely to overwhelm the U.S. Supreme Court, and the U.S. Supreme Court already has a system designed to screen the most meritorious cases from a flood of petitions, including thousands of pro se, in forma pauperis petition, many of which have little merit.
In a state like Colorado, that translates into one successful non-federal habeas corpus petition each year, and a reasonable possibility that one of the handful of people on death row might prevail in federal habeas corpus review.
Almost no one not facing a death penalty ever wins relief in federal habeas corpus review (about 65 will prevail out of the 18,000 cases filed each year by members of a 1.25 million population of non-death row state prisoners), and neither actual innocence based on newly discovered evidence, nor ineffective assistance of counsel, is a basis for relief in almost any of those very rare wins for federal habeas corpus petitioners, despite the fact that it is claimed in about half of those 18,000 cases. In a large share of non-capital cases, a guilty plea precludes an actual innocence claim on habeas corpus review outside the kind of absurdly clear circumstances that Alan Dershowitz suggests, something that almost never happens in real life.
It is a fair guess, based upon the experience in rape and murder cases, that the actual number of people in state prison who were convicted of crimes when they were factually innocent is on the order of 8,000-40,000. Clearly, the vast majority of these individuals never receive relief from their inaccurate convictions under the current system.
Indeed, in the roughly 90%-95% of cases where there is a valid plea bargain to a non-capital charge, and in the roughly 70%-80% of cases that go to trial and produce sentences that do not involve incarceration or are to prison terms of five years or less, together making up more than 97%-99% of state cases, it does not make sense to make any federal review based upon claims of actual innocence or ineffective assistance of counsel available at all -- something that the existing system effective does in practice by requiring exhaustion of state law remedies. Once direct appellate review and first collateral review of theses cases in state court is complete, the sentences involved are typically likely to be very close to completion before it is possible to complete the process involved in federal habeas corpus review.
These numbers also highlight the fact that in most cases plea validity, a fundamentally procedural issue, is the only guilt-innocence question in a case. One may, however, be particularly concerned about plea validity by innocent people when a plea is made in the shadow of a possible death sentence, or life in prison without parole sentence, preceded by a trial before a "death qualified" jury which is systemically more likely to convict as well. The fact that those given long sentences disproportionately go to trial, while those given short sentences disproportionately have accepted plea bargains, also reinforces the idea that there is a very large percentage of ordinary state law felony cases in which federal habeas corpus review of actual innocence may have few benefits, while involving high costs if this is raised in a large percentage of cases.
This would leave something on the order of 13,000-38,000 people eligible to make these kind of federal habeas corpus claims. If the actual innocence rate were 3% among this group of people, close to the rate suggested by capital case litigation, there might be about 40-115 people in the prison system who were factually innocent and would have a real possibility of securing relief on this basis through federal habeas corpus.
Those facing the death penalty prevail in federal habeas corpus review at a much greater rate (more than 12% prevail of the 210-240 federal habeas corpus cases filed each year in capital cases by members of a 3,300 population of death row state prisoners, and federal habeas corpus relief petitions are filed ultimately in almost every capital case), post-conviction review success as a whole in capital cases (including both federal and state claims) is closer to 40-47%.
But even then, a claim of actual innocence prevails only infrequently. About 135 people have been found innocent after being convicted of murder and sentenced to death since 1973 when the death penalty was invalidated, out of 7,469 death sentences, and in about half of those, relief could theoretically still be granted on this basis (although the percentage where this is a likely result at this point and being seriously litigated is much smaller than half of the total). Thus, actual innocence is established is something on the order of 2% to 3% of death penalty convictions, about 5-8% or less of the cases where a defendant prevails in some way on habeas corpus review.
Most relief in capital federal habeas corpus cases are based upon procedural issues with the trial and invalidate either the death sentence, or one criminal charge among many serious charges, while leaving the convicted murderer in prison for life or something close to life.
Death penalty cases are simplified by the fact that almost no one who is sentenced to death does so by plea bargain, and that almost no one who attempts to enter into a plea that allows for the death penalty asserts that they are actually innocent on habeas corpus review. Agreeing to a death sentence strongly suggests either ineffective assistance of counsel, or lack of competency to represent oneself, if counsel is refused.
In part, actual innocence capital cases are rare because state court action, executive clemency powers, the death of a prisoner prior to execution in prison, and the completion of prison terms that render relief moot in non-capital cases, have removed some of the most plausible claims of actual innocence from federal habeas corpus review. Also, some actual innocence cases identify procedural flaws that prevail on habeas corpus review, rendering actual innocence analysis unnecessary.
And, there are many cases where the fact that the defendant committed a murder are practically indisputable, due to properly analyzed physical evidence or a credible confession, for example. DNA analysis in rape cases put wrongful conviction rates at about 10% of cases that go to trial (recall also that plea bargains take the vast majority of cases outside the realm of guilt or innocence analysis, so wrongful convictions in rape cases are closer to 1-2% of cases prosecuted).
Efforts like the Innocence Project, that involve third parties that try to identify cases where actual innocence can be established using their own internal procedures, rather than formal court managed due process, and then build evidentiary cases with investigations and take over post-conviction litigation make up a large share of post-conviction review successes, particularly in non-capital cases.