let God sort them out.

From SCOTUSBLOG:

The Supreme Court, over two Justices’ dissents, on Monday ordered a federal judge in Georgia to consider and rule on the claim of innocence in the murder case against Troy Anthony Davis (In re Davis, 08-1443) The Court told the District Court to “receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis'] innocence.”

Scalia, of course, was one of the dissenters, having never yet encountered a criminal defendant he didn't believe was guilty. The crux of his dissent: "This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent."

In other words, innocence is no constitutional impediment to execution, so long as the condemned has had a "full and fair trial". One of Sullivan's stand-ins asks if this a "crazy view". I don't know if it's "crazy", but I'd definitely vote for "callous and amoral".

But the point I want to get at is the Sullivan stand-in's subsequent statement: "Procedural rights (like the right to a lawyer or the right to avoid self incrimination) do not guarantee a specific outcome (like the correct decision in a case). It is possible to imagine a fair trial that respects everyone's rights but nonetheless reaches the wrong conclusion."

Emphasis mine, because I think this is undeniably true, and is probably the absolute best argument against the death penalty you are likely to ever see.

The Fifth Amendment provides that no person shall be "deprived of life, liberty, or property, without due process of law". I've always thought that this should be interpreted as prohibiting the death penalty except in truly exceptional circumstances.

Obviously the Fifth Amendment allows for different levels of "process" being due to a person depending upon what the state is trying to deprive the person of. On the one hand, if it seeks to deprive you of some small amount of property (say, by imposing a fine for a parking ticket), the not a lot of process is "due". On the other hand, if the state intends to deprive a person of a great deal of liberty (say, by imposing a sentence of life in prison), then quite a lot of process is due.

My argument is that if the state intends to deprive a person of all of his property, and all of his liberty, and all of his life (say, by strapping him down and injecting him with a lethal dose of toxic chemicals), then the amount of process due that person is essentially infinite. Especially given the idea noted above: namely, that even the fairest and fullest trial may in fact reach the wrong conclusion.