For most people, it seems obvious that the imprisonment or execution of innocent people must be a violation of, at least, the Constitutional prohibition against cruel and unusual punishment. Therefore, you will probably be surprised to learn that the Supreme Court has not decided that it is.
Well, maybe not that surprised, given the makeup of the Supreme Court over the past few decades.
The Supreme Court was first directly faced with this question in Herrera v. Collins. Leonel Herrera was convicted of the murders of Texas police officers David Rucker and Enrique Carrisalez, and sentenced to death. The evidence against him consisted of the testimony of two eyewitnesses and a letter written by him. He also was proved to have had access to the car used in the crime, his Social Security card was found at the scene of one of the murders, and blood found on his jeans was the same type as that of one of the victims. Herrera's claim of innocence was buttressed by the statements of several witnesses that his brother, Raul Herrara, confessed to the murders, indicating that they arose from a drug business he conducted with the Hidalgo County Sheriff's Office. These confessions included one made by Raul to his attorney, who did not divulge the statement until after Raul's death. Additionally, Raul's son attested that he had been with his father at the time of the murders, and saw him kill both officers.
The Supreme Court's majority opinion, authored by Chief Justice Rehnquist, stated that actual innocence was not a ground for habeas corpus relief from a death sentence, nor from a prison sentence. It based its decision on a finding that:
Few rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence.
The Court went on to point out that an actually innocent prisoner or condemned man could always ask for state clemency, and thus had an avenue for relief. Presumably, the Court did not realize that future Texas governor George W. Bush would grant clemency in only one of 153 cases (and that one the case of someone who was guilty of multiple murders, though clearly not the one for which he was sentenced to death.) Nor that no California governor would grant clemency since the death penalty was reinstated in 1978.
The Supreme Court's reluctance to hold that actual innocence is a ground for relief from a penal sentence, be it imprisonment or execution, is disturbing, to say the least. It was given an opportunity to conclusively hold that innocence is a constitutional barrier to punishment in House v. Bell, a case in which the evidence that the victim's husband, not the defendant, was the true murderer was so strong that the State of Tennessee dropped the case against House after his conviction was reversed. (Among other things, although House was convicted on a theory that he raped and murdered the victim, the semen in her panties did not match his DNA). The Supreme Court, however, did not hold that House's innocence was grounds for reversal; rather, it held that evidence of his innocence was strong enough to allow him to challenge his conviction on legal grounds that had been forfeited in prior litigation. Finally, the Supreme Court again ducked the issue in District Attorney's Office v. Osborne, holding that the states were legislatively dealing with the issue of when post-conviction DNA testing was warranted, and that thus the federal judiciary should not meddle in the issue.
It is not all that surprising that the current Supreme Court does not view the question of innocent Americans suffering penal consequences as all that important, given that Antonin Scalia had the audacity to write this in Kansas v. Marsh:
It should be noted that the dissent does not discuss a single case-not one-in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby...One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum.
Really? An insignificant minimum? Tell that to Cameron Willingham or Carlos de Luna, both almost certainly innocent men executed by Texas. Tell it to Thomas Thompson, executed by California, and whose prosecutor told his jury that Thompson killed the victim, and then, using different snitches, told a subsequent jury that the victim's ex-husband killed her.
The criminal justice system is dependent on the goodwill of ambitious and ideological prosecutors, on the efforts of overworked, underpaid, and sometimes uncaring defense counsel, and on the sage wisdom of judges often chosen for political views rather for judicial qualities such as intelligence and fairness. It is also dependent on the intelligence, insight and fairness of juries drawn from the same pool of people who believe that Rush Limbaugh is God. At a minimum, it must be recognized that this system will result in mistakes, including mistakes leading to the condemnation of innocent people. It's hard to fathom why the Supreme Court has been so reluctant to openly acknowledge, and to deal with, that obvious fact. After all, if our Constitution means anything, it must mean that it is a violation of fundamental rights to imprison or kill innocent people in the name of preserving the finality of governmental decisions. I guess that we can only hope that some day the United States Supreme Court recognizes this basic truth.
One final question: Why is it that the same people who believe that the government never errs in the prosecution and punishment of citizens also believe that that same government is incapable of operating a public option or single payer health insurance program?
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