While reading about recent evidence that casts strong doubt on whether Cameron Todd Willingham, who was executed in Texas in 2004, was actually guilty I ran across the following statement in the Washington Post, quoting Supreme Court Justice Antonin Scalia:

As the Supreme Court upheld the death penalty in Kansas in 2006, Justice Antonin Scalia declared that the opposition could not cite “a single case — not one — in which it is clear that a person was executed for a crime he did not commit.”

Excerpt from a Washington post article

I was rather surprised to read this, my impression from various news articles was that there are multiple cases where it is pretty clear that an innocent was executed.

Are there no cases where it has been clearly shown that an innocent was executed in the United States?

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    According to the Innocence Project, there have been 18 death row inmates exonerated/pardoned via DNA evidence, but none actually executed. Since their platform is specifically targeted at DNA evidence, my assumption is that if there was a case involving DNA, they'd know about it. However, there may be cases of exoneration using other evidnece. – Is Begot Aug 4 '14 at 17:46
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    @rjzii The quote is verbatim from the Washington Post article, so anything inside quotation marks is from Scalia, and anything else from the Washington Post. – Mad Scientist Aug 4 '14 at 18:46
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    Yes, I understand that, but maybe change "the following statement by Supreme Court Justice Antonin Scalia:" to "a Washington Post article that quoted Scalia as saying." This goes back to the could not/did not discrepancy that @Articuno pointed out in my the comments to my answer. – rjzii Aug 4 '14 at 18:56
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    I would suggest changing the title. The claim made was not that there was not one such case, but that the dissent didn't cite one. That's a really big difference. – reirab Aug 6 '14 at 15:31

When approaching this question there are two items that need to be resolved, if the quote accurately quotes what Justice Antonin Scalia said and the second of which if the quote in its current context is true.

With regards to wrongful executions in the United States, Wikipedia provides several well referenced examples of cases where serious doubt was raised after the execution and Samuel Gross provides another good summary from a legal perspective; however, in the case of Jesse Tafero (October 12, 1946 – May 4, 1990), was convicted of murder and executed via electric chair in the state of Florida. Walter Rhodes, later confessed to the shooting after Tafero's execution. Which discredits Justice Scalia's assertion of a single case.

However, is that exactly what Justice Scalia said? It turns out that this quote is from the Kansas v. Marsh case of the exact quote from his concurring opinion was,

It should be noted at the outset that the dissent does not discuss a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby. The dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt.

Since the ruling was decided in 2006 and the Tafero case occurred in 1990 the question of if a gap sixteen years makes a case recent or not is best left to the reader.

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    The quote highlights a major discrepancy. The claim in the question was that the opposition could not cite a single case. Scalias actual claim is that the dissent did not cite a single case. – user5582 Aug 4 '14 at 18:04
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    @Articuno True, but that implies that the Washington Post misquoted the decision which I think I covered already by questioning the full context of the quote. – rjzii Aug 4 '14 at 18:09
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    Yes, I agree. My point is that the discrepancy is a significant part the/your answer that could be highlighted better. – user5582 Aug 4 '14 at 18:11
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    I've removed a comment that was attracting flags because of its wording, but I think its underlying point remains: it is not clear that people are going to the expense of proving executed people innocent, when the money is better spent on proving death-row inmates innocent. (Even if they did, they might not then spend the effort on having a conviction formally overturned.) If this is true, Scala's argument is flawed. – Oddthinking Aug 5 '14 at 22:08
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    I would point out that Tafero was not innocent. He simply wasn't the person who actively shot the police officers. He was there and actively involved in the criminal activity. All three adults were convicted of murder. – Brythan Oct 21 '18 at 1:06

I just want to add a very recent article in the Guardian

... it would be unwise to assume that everyone condemned to death is guilty of a terrible crime: a new report from the Marshall Project explains how, only a decade ago, Texas executed a man who was almost certainly innocent – and did so in a way that makes it enormously unlikely that he was the only innocent man to die in the state’s high-volume execution chambers.

and raise the question: What means "clearly shown" with respect to "evidence"?

"Clear" is a relative term - clear for whom or from what kind of view - and furthermore is there no and can never be a status of absolute clearness! We live in a continuous world, where is always uncertainty involved - no matter what you do. Therefore, to apply such a black-and-white term, you can just reduce that uncertainty (in the eyes of the subject) to a level where the subject perceives something as clear based on his reality.

It is unclear to me what the subject involved here is. Is it clear in the eyes of

  • the commonality (in the sense of more than half of the statistical mean of the population - the average citizen)?
  • the average politician high enough to speak in the name of the government (yes, I do distinct here)?
  • the judge?
  • the jury?

I tend to believe that subject here is the judge but I also perceive it as a polemic.

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    Welcome to Skeptics! If you can make it clear to us, that should be sufficient for now. However, your reference is to a newspaper article that cites another newspaper article that apparently cites a report that cites evidence. A good answer would cite primary sources rather tertiary ones. Show us how the Marshall Project know what they claim is true. – Oddthinking Aug 8 '14 at 10:49

There is not one case in which a prisoner was executed where it is clear that the prisoner was not a communist.

The full quote makes more sense as it qualifies Justice Scalia's assertion. But still, the fallacy that asks the question in the first place is naive. Are there instances where a man was executed and then later cleared of the charges?

Absolutely, hundreds if not thousands. Some of them quite famous:


Even in Scalia's frame of people exonerated that were previously convicted through DNA evidence, there are operational fallacies presumed in his argument.

You cannot claim that a lack of evidence is evidence of a lack; which is exactly what he is saying. For that, just how much diligence is anyone doing to confirm convictions of men already executed? Are their investigations reasonable to accomplish or are the barriers to success like uncooperative District Attorneys or biased judges that are hampering "clear" evidence gathering?

I think you are safe dismissing his quote, in whole, and especially paraphrased, as the biased remarks of a man with an agenda.

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    As @rjzii's answer shows, the actual quote mentioned "recent cases". You sole piece of evidence in this answer occurred in 1927. Can you come up with some more recent examples? Your communism link is confusing. Your claim of "hundreds if not thousands" needs substantiating. – Oddthinking Aug 5 '14 at 6:26
  • I think you'll find most (all?) people on Skeptics.SE will agree that a lack of evidence is not evidence of a lack. We're all wondering what the next "slam-dunk-proof" will be. Fingerprints was one, then video surveillance, then DNA. Someday, a new proof will put those guys to shame with its level of confidence. But what does any of that have to do with communism? – corsiKa Aug 5 '14 at 18:30
  • I think (s)he's using the communism quote to prove the fallacy. Just because it is not "clear that the prisoner [was] not a communist" does not mean it's certain that the prisoner was a communist. Similarly, just because it's not clear that the prisoner was not guilty does not mean that it's certain that the prisoner was guilty. – Doktor J Aug 5 '14 at 19:20
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    Scalia's statement is not a fallacy. It is in response to his reading of the dissent: "The dissent essentially argues that capital punishment is such an undesirable institution — it results in the condemnation of such a large number of innocents". Scalia is responding by saying that the dissent did not support its line of argument with even a single case. Perhaps the dissent was not making that argument, but then that is simply a strawman fallacy, not one that is highlighted by replacing "a crime he did not commit" with "communist". – user5582 Aug 6 '14 at 16:21
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    This answer dismisses the point without addressing it. The lack of evidence doesn't say anything -- including whether Scalia's statement is right or wrong. Statements are right or wrong all the time, but we have evidence for only a few. On this site, we don't care about the Absolute Truth(tm), we only care about evidence. If you have no evidence, it is practice not to answer here. – Sklivvz Aug 6 '14 at 23:39

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