This may shock you, but the Supreme Court has never held outright that the Constitution makes it illegal to impose the death penalty where the prisoner claims that he is actually innocent of the crime. In 1993, the Court ruled that, where an inmate brings a Habeas Corpus petition (which challenges the constitutionality of the criminal conviction), the Eighth Amendment's prohibition against cruel and unusual punishment does not require that the inmate/defendant be given a second bite at the apple. In particular, the Court "held that a claim of actual innocence based on newly discovered evidence did not state a ground for federal habeas relief."

This ruling came into play a few weeks ago when the Supreme Court issued a little-noticed ruling on an inmate's Habeas petition. The Court normally does not sit over the summer, but the Justices dealt with this case because, well, death penalty cases do have a way of waking up vacationing judges and otherwise revving up the judicial machinery in ways unknown to other defendants. This case, involving an inmate named Troy Davis, was a Habeas Corpus petition filed directly with the Supreme Court. The Justices ruled, in a 7-2 vote, that the federal court in Davis's jurisdiction should take a look at new evidence that Davis did not kill the victim. This evidence takes the form of affidavits from witnesses who testified against Davis at trial. As Justice Stevens notes in ruling in Davis's favor, "seven of the State's key witnesses have recanted their trial testimony; several witnesses have implicated the State's principal witness as the shooter."

Davis gets a second chance. From time to time, we read in the newspaper that a convicted murderer is found innocent because of DNA evidence which confirms that someone else killed or raped the victim. Or that a confession was coerced and detectives or other law enforcement officers overcame the will of the defendant in getting him to admit that he killed the victim. I remember the national outrage in 1989 when the Central Park Jogger was raped and left for dead and five youths admitted their guilt. If the death penalty could be imposed for rape, these defendants would have been put to death. But a few years ago, they were found innocent based on DNA and other evidence which cleared them. The Manhattan District Attorney actually recommended that the convictions be set aside. This development was almost as shocking as the original crime. So many defendants have walked out of prison after proving their innocence after-the-fact that, in my view, only a sociopath would stand in the way of giving some of them another hearing, even if their trials seemed fair and square at the time.

The Constitution prohibits the deprivation of life, liberty and property without due process of law. But, in dissenting from the order which gave Anthony Davis a second chance, conservative Supreme Court Justice Antonin Scalia wrote 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. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged 'actual innocence' is constitutionally cognizable." Clarence Thomas joined in Justice Scalia's dissent.

In response to Justice Scalia's argument, Justice Stevens notes that Scalia is treating a claim of actual innocence with a claim that derives from a procedural error (such as some screw-up at trial that amounts to a technicality). Death is different. Stevens writes, "imagine a petitioner in Davis's situation who possesses new evidence conclusively and definitively proving beyond any scintilla of doubt that he is an innocent man. The dissent's reasoning would allow such a petitioner to be put to death nonetheless. The Court correctly refuses to endorse such reasoning."

So at this point, it is not clear whether the Supreme Court still believes that the Constitution does not prohibit the execution of an inmate who is actually innocent of murder. This ruling may change the equation that the Supreme Court outlined in 1993. That's a good thing. That at least two Supreme Court justices would stand on ceremony and allow someone to be put to death because he exhausted his rights to challenge his conviction before finding a way to conclusively prove his innocence is appalling.

There are two kinds of people in this world: hall monitors and ... everyone else. The hall monitors had a copy of the school's rules and regulations and nailed you when you tried to go to the bathroom. Sure, you had to use the can and did not have time to get a hall pass, but the hall monitor does not care. You are dragged to the principal's office. The rules reign supreme for the hall monitors. The hall monitors on the Supreme Court are Antonin Scalia and Clarence Thomas. Justice Stevens, who is 89 years old by the way, represents the rest of us. We need more Justices like Stevens on the Court, and fewer Justices like Scalia and Thomas, who apparently believe that, so long as the inmate had a full trial and exhausted all avenues for appeal, the Constitution does not make it illegal to put the inmate to death even if, when the dust settles, it turns out that he is completely innocent.

We love violence. Guns are everywhere, we cheer on the soldiers no matter how unjust the war may be, and ... our love of violence manifests itself in other ways. When the government breaks the rules and violates the law, are we really off the hook? Doesn't our love of violence implicitly encourage this kind of lawlessness?

Locally, in New York, the newspaper reports that youth facilities stand accused of beating the hell out of teenagers:

Excessive physical force was routinely used to discipline children at several juvenile prisons in New York, resulting in broken bones, shattered teeth, concussions and dozens of other serious injuries over a period of less than two years, a federal investigation has found.

A report by the United States Department of Justice highlighted abuses at four juvenile residential centers and raised the possibility of a federal takeover of the state’s entire youth prison system if the problems were not quickly addressed.

...

Investigators found that physical force was often the first response to any act of insubordination by residents, who are all under 16, despite rules allowing force only as a last resort.

These are kids few people really give a shit about. The facilities are located in rural areas, outside public oversight. Many of us are not even aware that these facilities exist, and if we do know they exist, we are glad they are there to house the kids that no one can control. Humanity's inherent love and capacity for violence breeds this kind of abuse when no one looking, and when no one cares.

Violence is the answer at home, and violence is the answer abroad. No one sympathizes with terrorists, which is why a steady stream of headlines over the last few years has revealed the use of torture against foreigners in U.S. custody.

As the newpaper reports also today:

Attorney General Eric H. Holder Jr. named a veteran federal prosecutor on Monday to examine abuse of prisoners held by the Central Intelligence Agency, after the Justice Department released a long-secret report showing interrogators choked a prisoner repeatedly and threatened to kill another detainee’s children.

...

Although large portions of the 109-page report are blacked out, it gives new details about a variety of abuses inside the C.I.A.’s overseas prisons, including suggestions about sexually assaulting members of a detainee’s family, staging mock executions, intimidation with a handgun and power drill, and blowing cigar and cigarette smoke into prisoners’ faces to make them vomit.

You may not care about any of this. But you should. As far as I'm concerned one of the best commentators on these issues is Glenn Greenwald, a lawyer in New York City who does not pull punches. Here's the link to his commentary on the torture. Here's Glenn:

GOP Congressman Peter King -- the ranking member of the House Homeland Security Committee -- had this rancid outburst today in Politico regarding Eric Holder's decision to investigate whether laws were broken by the Bush administration's torture:

"It’s bullshit. It’s disgraceful. You wonder which side they’re on. [It's' a] declaration of war against the CIA, and against common sense. . . . When Holder was talking about being 'shocked' [before the report's release], I thought they were going to have cutting guys' fingers off or something -- or that they actually used the power drill. . . "

Pressed on whether interrogators had actually broken the law, King said he didn't think the Geneva Convention "applies to terrorists."

Never mind that the Supreme Court in Hamdan ruled exactly the opposite: that Common Article 3 of the Geneva Conventions applies to all detainees, including accused Terrorists. Never mind that the War Crimes Act makes it a felony to inflict "prolonged mental harm caused by or resulting from . . . the threat of imminent death; or the threat that another person will imminently be subjected to death, severe physical pain or suffering. . . ." and that these acts are therefore criminal whether or not King likes them.

Never mind that scores of people have died -- not merely been threatened with death -- in American custody as a result of "interrogation tactics." Never mind that Ronald Reagan signed the Convention Against Torture which compels the U.S. to prosecute anyone authorizing torture; that the Treaty proclaims that "no exceptional circumstances whatsoever . . . may be invoked as a justification of torture"; and that Reagan himself said the Treaty "will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today." And most of all, never mind that King has no idea whether these people are actually "terrorists" because the people we tortured were never given trials, never proven to have done anything wrong, and in many cases were -- as federal courts have repeatedly found and as the CIA IG Report itself recognized -- completely innocent.