Beyond All Doubt

Georgetown Law Journal, Jun 2003 by Jungman, Elizabeth R

DNA testing highlights the reality that the system has flaws, but most defendants convicted in this flawed system cannot have their innocence vindicated through DNA testing because their cases do not involve biological evidence or the biological evidence has been lost or destroyed.16 Defendants convicted with nonbiological evidence are presumably at least as likely to have been wrongly convicted as those for whom DNA evidence is available, but their innocence is more difficult to prove. DNA testing has come into use relatively recently and is not used in most cases;17 that it has already exonerated twelve innocent inmates is a disturbing indication of what would be found if DNA testing were available in all cases and utilized more frequently.

Others have not been so lucky. Although it is impossible to know precisely how many innocent people have been sentenced to death and executed, it is beyond doubt that individuals not guilty of the crimes of which they were accused have received death sentences.18 Unfortunately, some of those wrongful sentences have been carried out. In a rare official acknowledgement of a mistake of this magnitude, the governor of Maryland granted a posthumous pardon to a man executed in 1919 because of doubt that the man was actually guilty.19 As of 1993, there were at least twenty-three documented post-Furman cases in which researchers believe that an innocent person has been executed.20 That more than 100 death row inmates have been exonerated, most after serving considerable jail time, suggests that the system is not working flawlessly. These cases, and others like them, suggest that the price paid for capital punishment is the execution of innocent people.

II. AN UNCONSTITUTIONAL SYSTEM

"Nothing could be more contrary to contemporary standards of decency . . . or more shocking to the conscience . . . than to execute a person who is actually innocent."21

The capital punishment system is perhaps justifiable under the Constitution if those who face death are undoubtedly those who have committed atrocious crimes.22 But the current system of capital punishment violates the Constitution because it is incapable of guaranteeing that factually innocent defendants are not executed.23 In their opinions in Herrera v. Collins,24 a majority of Justices stated or assumed that executing an innocent person would violate the Constitution. These opinions illustrate how the Court might consider the constitutionality of a system that one knows, or has a strong reason to suspect, allows the execution of the innocent. Analysis of the Eighth Amendment's prohibition against "cruel and unusual punishment" and of the Fifth and Fourteenth Amendments' protection of due process rights demonstrates that the execution of factually innocent defendants violates the Constitution. There are both moral and legal reasons to ensure that any system of capital punishment avoids executing innocent people. Although it is unlikely that we would all concur on what morality requires,25 we are all bound by the dictates of the Constitution.