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Defending Dissent: Scalia's 'Bluster' Masks Good Points in Perkins

By William Peacock, Esq. | Last updated on

"Everyone's innocent in here, don't you know that?"

-Red, "The Shawshank Redemption"

Earlier this week, the court released two opinions dealing with habeas corpus petitions. Though both were ideologically split 5-4 decisions, the McQuiggins v. Perkins majority opinion and dissent were unusually contentious. Scalia's dissent spends as much time mocking the majority as it does discussing the law. Ginsburg's opinion refers to the dissent as "bluster."

Underneath Scalia's huffing and puffing, however, was a series of very valid points.

Our legal system is a pile of principles, stacked like a game of Jenga. We prefer finality of judgments, so often, when a new constitutional rule is announced in a case, it isn't given retroactive effect (even if that does mean a number of prior case decisions were constitutionally-suspect). When Congress or a court specifically expresses their intent, we hold true to the maxim "expressio unius est exclusio alterius," translated roughly as "inclusion of one is the exclusion of another."

The Antiterrorism and Effective Death Penalty Act (AEDPA) is a widely-criticized law. Scalia referred to it as "a statute unloved in the best circles." But that highly criticized law addresses exactly the problem which the majority opinion sought to address -- actual innocence claims brought via habeas petitions.

Are you innocent? Can you prove it? If so, AEDPA gives you one year from the time which the evidence was discovered to file your claim. Why one year? A better question might be why would an innocent person wait more than one year to file if they have proof?

Besides the statute of limitations, §2244(b)(2)(B) provides an exception to the ban on second or subsequent petitions where "the factual predicate for the claim could not have been discovered previously through ... due diligence" and where the proof, by clear and convincing evidence, establishes that no reasonable juror would've found him guilty.

Section 2254(e)(2) provides for evidentiary hearings where a diligent prisoner's new facts can meet that clear and convincing evidence burden.

Justice Ginsburg's opinion seems to imply that while Congress addresses these matters with specificity, they simply forgot to include an actual innocence exception to an otherwise clear statute of limitations.

Now, obviously, no one, not even Justice Scalia, wants innocent people to rot in jail. The thing is, Congress writes the laws. Unless those laws violate clear constitutional principles, the judges don't rewrite them. No such constitutional principles were cited by the majority.

And while we'd all like to have the resources to evaluate each case repeatedly, just in case there is a miniscule chance that someone is actually innocent (not everyone is innocent, "Shawshank Redemption" notwithstanding) the courts' resources are limited. Scalia points out the ever-increasing load of petitions, from an "inundation" of 541 filings in 1953 to 15,929 in the year ending on September 30, 2012.

More exceptions, including the "actual innocence" exception, mean more filings. While it may seem like a price worth paying, even if nearly all "actually innocent" petitioners wouldn't wait five years to file (like Perkins did), that's a policy question for the lawmakers, not the law interpreters.

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