theoria

In re Troy Anthony Davis, No. 08-1443, Dissenting opinion by Justice Scalia, August 17, 2009:

The Georgia Supreme Court rejected petitioner’s “actual-innocence” claim on the merits, denying his extraordinary motion for a new trial. Davis can obtain relief only if that determination was contrary to, or an unreasonable application of, “clearly established Federal law, as determined by the Supreme Court of the United States.” It most assuredly was not. This 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.

Walter Benjamin, “Critique of Violence,” 1921:

For law-preserving violence is a threatening violence. And its threat is not intended as the deterrent that uninformed liberal theorists interpret it to be. A deterrent in the exact sense would require a certainty that contradicts the nature of a threat and is not attained by any law, since there is always hope of eluding its arm. This makes it all the more threatening, like fate, which determines whether the criminal is apprehended. The deepest purpose of the uncertainty of the legal threat will emerge from the later consideration of the sphere of fate in which it originates. There is a useful pointer to it in the sphere of punishments. Among them, since the validity of positive law has been called into question, capital punishment has provoked more criticisms than all others. However superficial the arguments may in most cases have been, their motives were and are rooted in principle. The opponents of these critics felt, perhaps without knowing why and probably involuntarily, that an attack on capital punishment assails not legal measure, not laws, but law itself in its origin. For if violence, violence crowned by fate, is the origin of law, then it may be readily supposed that where the highest violence, that over life and death, occurs in the legal system, the origins of law jut manifestly and fearsomely into existence. In agreement with this is the fact that the death penalty in primitive legal systems is imposed even for such crimes as offences against property, to which it seems quite out of ‘proportion.’ Its purpose is not to punish the infringement of law but to establish new law. For in the exercise of violence over life and death, more than in any other legal act, the law reaffirms itself. But in this very violence something rotten in the law is revealed, above all to a finer sensibility, because the latter knows itself to be infinitely remote from conditions in which fate might imperiously have shown itself in such a sentence.