A liberal replacement for Scalia would insure invalidation of more death penalty laws, although not necessarily complete abolition of the penalty. The court has already struck down various death penalty provisions while narrowly upholding others, such as a 2015 decision allowing use of execution drugs that were alleged to cause excruciating pain. That decision, among others, could be overruled or pared back to its specific facts.
Back in 1994 conservative Supreme Court Justice Antonin Scalia voted against a petition asking the Supreme Court to review the case of one of those men, Henry McCollum. That man became North Carolina’s longest-serving death row inmate after he and his half-brother Leon Brown were convicted of raping and killing an 11-year-old girl.
This news brings to mind Scalia’s insistence that the Supreme Court has never ruled the Constitution forbids the execution of a convicted defendant who later convinces a court of his innocence, as
Slate points out.
“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,” Scalia wrote in a 2009 document of the Court’s order for a federal trial court in Georgia to consider the case of death row inmate Troy Davis. “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.”
The first established death penalty laws date as far back as the Eighteenth Century B.C. in the Code of King Hammaurabi of Babylon, which codified the death penalty for 25 different crimes. The death penalty was also part of the Fourteenth Century B.C.’s Hittite Code; in the Seventh Century B.C.’s Draconian Code of Athens, which made death the only punishment for all crimes; and in the Fifth Century B.C.’s Roman Law of the Twelve Tablets. Death sentences were carried out by such means as crucifixion, drowning, beating to death, burning alive, and impalement.