I was particularly troubled by his refusal to say that an individual who went through a procedurally perfect trial, but was later proven innocent, had a constitutional right not to be executed. The Constitution states that no one in this country will be deprived of life without due process of law. It is hard to even imagine how any process that would allow the execution of someone who is known to be innocent could satisfy that requirement of our Bill of Rights. I pressed Judge Alito on this topic but rather than answering the question directly or acknowledging how horrific the idea of executing an innocent person is, or even pointing to the House v. Bell case currently pending in the Supreme Court on a related issue, Judge Alito mechanically laid out the procedures a person would have to follow in state and federal court to raise an innocence claim, and the procedural barriers the person would have to surmount.

Judge Alito's record and response suggest that he analyzes death penalty appeals as a series of procedural hurdles that inmates must overcome, rather than as a critical backstop to prevent grave miscarriages of justice. The Supreme Court plays a very unique role in death penalty cases, and Judge Alito left me with no assurance that he would be able to review these cases without a weight on the scale in favor of the government.