The idea that SCOTUS should leave state courts' misinterpretions of federal law unreviewed as long as the errors are in criminal defendants' favor reminds me of a discussion I had with Will in which I tried to argue for a pro-liberty stare decisis, and so I feel quixotically compelled to attempt a defense of " Stevens's Nullification Doctrine."
This is difficult, not least because the Marsh majority correctly applied the Sixth and Eight Amendment precedents to uphold Kansas's scheme: in line with the Apprendi-Blakely reasoning, the jury rather than the judge makes determinations relevant to sentencing; in line with Furman and the more positive motivation for sentencing guidelines, once those determinations about mitigating and aggravating factors are made, the penalty is applied to everyone for whom the factors are equal or tipped toward aggravation, thereby avoiding bias at least at that stage. And as Thomas says*, that is the stage under review, not the preceding process of crime identification, arrest, indictment, juror selection, etc. I really can't find a rationale on which to defend the dissenters' stated arguments, and think they would have been better off to dissent straightforwardly on this and every other case upholding execution by quoting Blackmun -- "I no longer shall tinker with the machinery of death" -- and stopping with that.
However, I do have some names to provide Scalia, as well as a point that the dissenters did not make.
Kirk Bloodsworth; Alejandro Hernandez; Rolando Cruz; Verneal Jimerson; Dennis Williams; Robert Miller; Ron Williamson; Ronald Jones; Earl Washington; Charles Irvin Fain; Ray Krone; Nicholas Yarris; Ryan Matthews. All of these men were charged with murder, given the death penalty and later exonerated through the use of DNA testing. Frank Lee Smith died of pancreatic cancer on death row before his exoneration. Some had no previous criminal record and have had none since; several of their DNA tests also revealed the actual perpetrators.
I got their names from the Innocence Project, which chiefly occupies itself with trying to get wrongfully convicted people out of prison, not with exonerating the dead. Scalia declares that if an innocent person had been executed, "we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby." But the abolition lobby, as such, is occupied in trying to change public policy on death penalty. Relatively few members of it are digging up corpses to match their DNA against that found at a crime scene. Even those who are working to exonerate living prisoners are rarely those prisoners' trial or original appeal attorneys, and certainly not prosecutors nor judges.
Scalia's assurance that our contemporary justice system essentially guarantees that only the guilty are executed is founded on the rather obvious ground that one cannot be exonerated without the participation of the justice system; someone must consent to review the case in some way before the convicted can be freed. But the administrators of the justice system are not particularly noteworthy for their enthusiasm about reconsidering convictions once the statutory requirements have been fulfilled. After a trial and the standard appeal, defendants are supposed to be hurried along to the electric chair, particularly since the trend in 1990s state and federal legislation was to minimize appeals.
This is a bit reminiscent of the debate going on about Scalia's citation in his Hudson v. Michigan opinion of Samuel Walker's book Taming the System: The Control of Discretion in American Criminal Justice. The book supposedly claims that police departments improved their behavior after the Warren Court's rulings in Miranda and Mapp. Scalia quotes Walker's saying there were “wide-ranging reforms in the education, training, and supervision of police officers” without mentioning the part about those reforms having been a result of Supreme Court intervention. Pointing to the results of liberals' work as proof that liberals are being silly in worrying about the stuff they're working on is a reliable way to piss us off.
* "But the availability of DNA testing, and the questions it might raise about the accuracy of guilt-phase determinations in capital cases, is simply irrelevant to the question before the Court today, namely, the constitutionality of Kansas’ capital sentencing system. Accordingly, the accuracy of the dissent’s factual claim that DNA testing has established the “innocence” of numerous convicted persons under death sentences -- and the incendiary debate it invokes -- is beyond the scope of this opinion." Reading the neglected majority opinion in Marsh reminded me how simple and almost elegant Thomas's writing often is; an introductory law school course could do worse than to have new students begin with his opinions, rather than the 19th century monstrosities that leave 1Ls convinced that they'll never understand The Law.