Associate Justice Anton Scalia earlier today in Kansas v. Marsh aggressively attacked claims of factual innocence. Jusice Scalia's argument is undercut by the facts and he notably miscites the actual data surrounding the death penalty.

• For example, Scalia, J., notes there have been "about 950 executions since 1976." That number is well over a year old.

• Justice Scalia then goes on to note that there are "3,700 people" currently condemned to death. That number, however, is wildly off, and has not been a correct number, if at all, for a number of year; post-Furman the highest number on death row nationally was approximately 3600 in 2000, and the current number is under 3400. [Here]

The Justice should have checked the leading source of information on the subject, the Death Penalty Information Center, (or more appropriately his clerks should have) before publishing such a strong dissent.

Indeed had the Justice's chamber checked there today (or even better, last Friday) he would have found something directlyy on point:

A Chicago Tribune investigation set for release this weekend will reveal groundbreaking evidence that Texas may have executed an innocent man in 1989. The defendant, Carlos DeLuna, was executed for the fatal stabbing of Texas convenience store clerk Wanda Lopez in 1983. New evidence uncovered by reporters Maurice Possley and Steve Mills casts doubt on DeLuna‚’s guilt and points towards another man, Carlos Hernandez, who had a record of similar crimes and repeatedly confessed to the murder. According to a link on the Chicago TribuneÂ’s Web site (here), a three-part investigative series will start this weekend and conclude on Tuesday. A news piece scheduled to air tonight on ABC’s ‚“Nightline‚” will also cover this emerging story. It appears that new evidence will cast strong doubt on DeLuna‚’s guilt. This would be the fourth investigation in the past 2 years pointing to the execution of a probably innocent man. Similar questions have been raised in the cases of Cameron Todd Willingham and Ruben Cantu in Texas, and Larry Griffin in Missouri.

The Justice's opinions are clearly heartfelt, they are, unfortunately, based on clearly inaccurrate information.