Beyond All Doubt

Georgetown Law Journal, Jun 2003 by Jungman, Elizabeth R

INTRODUCTION

If past trends hold true in the future, one out of every twenty inmates currently sitting on death row will eventually be exonerated.1 Thus far in 2003, nine men have escaped being put to death in error by their government. Each of these men was either acquitted upon retrial, pardoned on the basis of innocence, or released after his conviction was reversed and the charges against him were dropped. These nine men spent an average of 19 years in prison-a total of 271 wasted years among them-before their innocence was recognized. These nine cases in 2003 do not represent an unusual spike in acquittals-four men were released from death row in 2002, five men similarly escaped death in 2001, and a total of 111 death row inmates have been exonerated since 1973.3

For the five percent of death row inmates who have been exonerated, the system worked: Flaws in their trials were caught before irreversible punishment was inflicted. Others may not be so lucky. The cases of this fortunate five percent offer a window into defects in the capital punishment system and suggest that theirs may not be the only cases in which the system resulted in the conviction of innocent people. Growing evidence that innocent people are convicted highlights the possibility that innocent people also are put to death. This frightening prospect should prompt a reevaluation of the system by which defendants-sometimes innocent defendants-are placed on death row. Confirmation that the "beyond a reasonable doubt" burden of proof used in criminal cases does not prevent conviction of the innocent is alarming in any circumstance, but particularly so when the convicted are subject to capital punishment. The evident flaws in the accuracy of guilt determinations suggest that a more stringent standard is needed when death is the punishment.

This Note argues that it is unconstitutional and morally reprehensible to maintain a system that fails to exclude the innocent from death row, and proposes a partial solution to the problem of erroneous executions. Part I presents evidence of the failings of the current capital system. Part II argues that maintaining this system violates the Constitution. This Part advances the argument that executing innocent individuals is cruel and unusual punishment under the Eighth Amendment and a violation of the substantive due process protections guaranteed by the Fifth and Fourteenth Amendments. Part III contends that clemency is not an effective solution to the problem. Part IV presents a proposal that, if combined with other changes to the system, may help ensure that those executed are truly guilty. Utilizing a "beyond all doubt" burden of proof in capital cases would be an important first step towards bringing the system of capital punishment into line with the Constitution and reducing the risk that innocent defendants will perish at the hands of their government.

I. EVIDENCE OF WRONGFUL EXECUTIONS

[A] legal regime relying on the death penalty will Inevitably execute innocent people-not too often, one hopes, but undoubtedly sometimes.4

The statistical evidence of wrongful death sentences is shocking. Research shows that almost seven out of every ten individuals sentenced to death in the twenty-three years following Furman v. Georgia5 were convicted in trials later found to be flawed.6 Disturbingly, of those whose sentences were reversed, a significant number were later found to be innocent of the crimes for which they had been convicted.7 Almost 5% of all defendants who are sentenced to death are eventually exonerated-these are the lucky 5% who manage to prove their innocence before their execution.8

Although conviction of the innocent is always a terrible mistake, it is particularly distressing when the punishment cannot be reversed. In April 2002, Ray Krone claimed the dubious distinction of being the 100th death row inmate to be freed from prison.9 Since his release, eleven other death row inmates have been liberated-bringing the total releases as of July 2003 to 111.10 These 111 individuals make it clear that it is not only the guilty who are sentenced to death. The problem has become serious enough that Supreme Court Justice Sandra Day O'Connor-who has historically been supportive of the death penalty-recently expressed doubts about capital punishment because of her fear that innocent people are being executed.11

Modern technology has confirmed flaws in the system that we previously only feared. DNA testing has made it possible to prove the innocence of some individuals that the legal system found guilty.12 Ray Krone was the twelfth death row inmate to be exonerated due to DNA evidence.13 Prior to his exoneration Krone was convicted twice; had his lawyer not been able to obtain post-conviction DNA testing, or had his case not involved biological evidence, Krone would likely still be imprisoned.14 Resistance to DNA testing to determine the guilt of those already executed has made it impossible to know how many others might have been exonerated if time and technology had worked in their favor.15