Beyond All Doubt

Georgetown Law Journal, Jun 2003 by Jungman, Elizabeth R

Legislative activity indicates continuing concern in state legislatures that innocent people not be convicted and punished, particularly when the punishment is death. Almost half of the states have passed laws making it easier for defendants to receive post-conviction access to DNA evidence and providing opportunities for defendants to present this evidence to establish their innocence.51 More than a dozen states have passed statutes providing for compensation to defendants who are wrongfully convicted and later exonerated.52 In all but one of the states that currently use the death penalty, legislatures debated reform proposals in 2001; reforms were passed in twenty-one states.53 The Nebraska legislature approved a moratorium on executions, but it was vetoed by the Governor.54 New Hampshire's legislature went so far as to abolish the death penalty, but the abolition legislation was vetoed by the Governor.55 Legislatures' recent reevaluations of the capital system suggest that lawmakers are not complacent about evidence that innocent people are being executed.

Jurors' decisions also indicate that societal "standards of decency" have not expanded to include accepting the execution of innocent people as a byproduct of the justice system. Even when jurors are convinced beyond a reasonable doubt, they frequently cite doubt about the defendant's guilt as their reason for imposing a life sentence rather than the death penalty.56 Their reluctance to impose death when not convinced of guilt beyond all doubt suggests that jurors are concerned about the reliability of the American justice system. Some potential jurors are not eligible for capital juries because they indicate an unwillingness to impose the death penalty if they have any doubt about the defendant's guilt.57 This process of "death-qualifying" capital juries suggests that current studies of capital juror concern underrepresent the concern of the population as a whole.58

In addition to the actions of state legislatures and jurors, international practice reinforces the conclusion that there is no more societal support for executing the innocent now than there was at the time the Eighth Amendment was adopted. The consensus of the industrialized nations is firmly against executing innocent people. In fact, the death penalty has been abolished in nearly every industrialized country.59 The United States' maintenance of the death penalty has subjected it to significant international criticism, and other countries have refused to extradite suspected criminals to the United States or to cooperate in cases because of the risk of capital punishment.60 Because most industrialized nations will not even inflict the death penalty on the guilty, those in this country who support capital punishment despite evidence that it allows execution of some innocent defendants are unlikely to find comfort in international practice.

To survive an Eighth Amendment challenge, a penalty must not only comport with societal standards, it must also be consistent with "the dignity of man."61 This second analytical prong requires the Court to assess whether the penalty is excessive.62 An excessive punishment is one that involves the "unnecessary and wanton infliction of pain" or that is "grossly out of proportion to the severity of the crime."63 The current system of capital punishment violates both of these standards.