Beyond All Doubt

Georgetown Law Journal, Jun 2003 by Jungman, Elizabeth R

If the Court were to find maintaining a system that allows execution of the innocent to be unconstitutional, it would likely find a violation of either the Eighth Amendment's prohibition of "cruel and unusual punishment" or the due process protections found in the Fifth and Fourteenth Amendments. In her Herrera concurrence, Justice O'Connor explicitly asserted that executing an innocent person would offend all of the various articulations of the Eighth Amendment's "cruel and unusual punishment" clause.35 She also wrote that executing an innocent person would be offensive to a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,"36 which was the standard that Chief Justice Rehnquist used in his opinion for the Court.37 In their dissenting opinion in Herrera, Justices Blackmun, Stevens, and Souter were adamant that executing an innocent defendant was both "contrary to contemporary standards of decency" and "shocking to the conscience."38 Taken together, these two statements suggest that there is support within the Court for the proposition that executing an innocent person constitutes cruel and unusual punishment and violates due process.

B. THE EIGHTH AMENDMENT

The Eighth Amendment guards against the infliction of "cruel and unusual punishments"39-punishments that are "inhuman and barbarous" and those that are excessive relative to the crime.40 To survive an Eighth Amendment challenge, punishments must comport with contemporary standards of decency, serve a penal purpose, and be proportional to the crime committed.41 A system that permits the execution of innocent people violates all of these standards.

The first step in an Eighth Amendment analysis is to determine whether the practice in question was acceptable at the time that the Eighth Amendment was adopted, because this provides the best indication of what the Eighth Amendment was intended to prohibit.42 Throughout the history of the United States, punishing the innocent has been viewed as socially undesirable; historically the criminal justice system has adhered to the principle that "it is better that ten guilty persons escape, than that one innocent suffer."43 Various protections were built into the criminal justice system to ensure that innocent people do not have their liberty or lives taken from them.44 While these protections may not have always succeeding in protecting the innocent, they evince a societal desire to do so, even at the time the Eighth Amendment was adopted. The care taken to build protections into the justice system is evidence that maintaining a system that executes the innocent was never an acceptable practice.

The Court traditionally has looked not only to the standards of decency prevailing at the time the Constitution was adopted, but also to the evolution of those standards over time.45 Thus, even if it had been considered acceptable when the Eighth Amendment was adopted, maintaining a system that executes innocent people would not be constitutionally tolerable today unless this practice could be said to comport with "the evolving standards of decency that mark the progress of a maturing society."46 The Court attempts to discern contemporary standards from "objective indicia" of public attitudes.47 These "objective indicia" comprise a variety of indicators, including evaluation of the activities of state legislatures,48 observation of jurors' decisions,49 and, occasionally, consideration of international practice.50