Abstract
This paper supplies the logical and substantive framework for an untested challenge to the legality of the death penalty in the United States. As such, it yields a novel strategy for appellants and supporting amici seeking review of capital cases in the United States Supreme Court. With twin reliance on the right of the people to reparation for harm wrongly inflicted by others and their constitutional right to Due Process of Law under the Fourteenth Amendment, this paper advances the argument that the mere possibility of a wrongful execution yields an imperative for abolishment of capital punishment by the Court.
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Notes
For an earlier presentation of the initial phase of the argument, together with an account of its theoretical moorings in Locke’s Second Treatise, see Sarver (2012) (which contrasts Locke’s familiar argument for the death penalty in the Second Treatise and urges a Lockean argument against the death penalty better reflects the prevailing tenor of his treatise and appears to be on more secure footing within the general framework of his theory of the social contract). For a preliminary draft of all three phases of the argument with annotations, see Sarver (2013).
Writing for the Court, Chief Justice Rehnquist held that petitioner failed to make a showing of “actual innocence” linked to “an independent constitutional violation occurring in the underlying state criminal proceeding,” a requirement for federal habeas relief; and that, “for the sake of argument in this case, . . . [if] in a capital case a truly persuasive demonstration of ‘actual innocence’ [were to be] made after trial[,] [that] would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim,” (at 417). While Rehnquist left the door open here for a demonstration of “actual innocence” in future cases, he made it clear that “[t]he showing made by petitioner in this case falls far short of any such threshold” (ibid.) Agreeing with the decision of the Court, but for different reasons, Justice O’Conner held that “the proper disposition of this case is neither difficult nor troubling” because of the “fundamental fact” that “[p]etitioner is not innocent, in any sense of the word,” (at 419). In effect, she held that, not only had the record at trial established the guilt of petitioner under the law, it also warranted the conclusion that he could not possibly have been factually innocent of the crimes for which he was sentenced to die. Another point of difference with Rehnquist’s opinion is the weight O’Connor would assign to the execution of a legally and factually innocent person, were this ever to occur. While Rehnquist does not elaborate on the aftermath of a wrongful execution, O’Connor observed an “event” of this kind would be “constitutionally intolerable,” (supra); yet enigmatically, she fails to explain why. Against this backdrop, the argument of this paper seeks to explain why O’Connor was right in her observation, but wrong to exclude the possibility of factual innocence for the petitioner in Herrera. In contrast with the petitioner’s failed strategy, this new and untested argument does not turn on a showing of “actual innocence” at all, but instead relies on the mere assertion of possible innocence, which, as will be elaborated in the second phase of the argument, is a possibility that may not be discounted, even when the chance of error appears infinitesimally small in a particular case, as, e.g., it probably does for most observers of Herrera. Moreover, under the impress of this constraint, the final phase of the argument then seeks to open a constitutional pathway to abolition of the death penalty by linking this assertion to the constitutional right of Due Process of Law under the Fourteenth Amendment and the right of the people to reparation for harm wrongly inflicted by others. In fairness to O’Connor and even the petitioner, for that matter, this is not a strategy that could have been attempted in 1993. This is because the argument relies on empirical assumptions drawn from an emergent literature of the social sciences that has only in more recent times become sufficiently robust to have probative weight before the Court; and for the further reason that the strategy itself did not fully emerge until late in 2012 (See n. 1, supra).
Other developments included the emergence of innocence projects at several prominent American law schools, among them Duke University School of Law, Northwestern University School of Law, University of North Carolina School of Law, University of Washington School of Law, and University of Wisconsin School of Law; and a gubernatorial moratorium on the death penalty in Illinois. For a brief overview of then Governor George Ryan’s decision and a discussion of related issues, see White (2001).
These analyses appear also in Sarver (2012), at 186–187.
At times the Court has employed other less often cited language in qualifying a fundamental right of the people under the Due Process Clause; see, e.g., Rochin, at 172 (“shocks the conscience”), which also would have merit as a standard for the present argument.
Locke’s impact on the Due Process Clause of the Fourteenth Amendment has been extensive, formative in its early development and substantive in its contemporary application. See D. G. Smith (2002) (characterizing section one of the Fourteenth Amendment as a remedy for “defects” or “imperfections” in the Lockean state of nature, with the Due Process Clause serving the purpose of rectifying “the lack of a known and indifferent judge” p. 1147). See also Koehlinger (1990) (“The Lockean liberal tradition. . . offers a . . . principled and organized method for determining the substantive content of an individual’s ‘life, liberty, and property’ rights under the due process clauses . . .,” p. 725).
In this final phase of the argument, the language of the Fourteenth Amendment is preferred over that of the Fifth because the former expressly affirms what the states may not do, while the latter asserts more generally what may not be done to a person. See U. S. Const. amend. XIV, § 1 (“. . . nor shall any State deprive any person of life, liberty, or property, without due process of law”); cf. U. S. Const. amend. V (“nor shall any person . . . be deprived of life, liberty, or property, without due process of law”). While this distinction is subtle, it is one worth making , as the states are the primary instrument of the death penalty in the United States.
The need for a constitutional remedy may be implied, though not addressed, by the Takings Clause of the Fifth Amendment. See U. S. Const. amend. V (“. . . nor shall private property be taken for public use without just compensation”). For a recent discussion of takings logic applied to the plight of those who have been wrongfully convicted and imprisoned, see especially Master (2004) (analyses intended to show “that eminent domain principles may compel governments to compensate individuals who have been wrongfully convicted and imprisoned,” p. 97). An instructive limitation of this line of reasoning, if accepted by the Court, would be that it affords no relief to the victim of a wrongful execution. While this underscores the need for a categorical exclusion of the death penalty, the clause itself fails to supply any ground for relief.
Between January 1, 2007, and August 5, 2013, six states abolished the death penalty (New Jersey, New York, New Mexico, Illinois, Connecticut, and Maryland), while over this same time period, 258 executions were carried out, with 219 (76.6 %) of these occurring in just six states (Texas, Ohio, Oklahoma, Alabama, Mississippi, and Florida). See Death Penalty Information Center. States With and Without the Death Penalty; Executions in the United States [2007–2013]. Data files available at http://www.deathpenaltyinfo.org (last visited September 4, 2013).
This is not a far-fetched possibility. Among plausible candidates, see, e.g., Liebman, Crowley, Markquart, Rosenberg, White and Zharkovsky (2012) (documenting Carlos DeLuna’s claim of factual innocence and concluding with reference to Justice Scalia’s rooftop allusion, “We believe that the story of Carlos DeLuna represents such a case,” p. 1118); Ryan (2012) (featuring the case of Cameron Todd Willingham and describing it as what may eventually become “the first . . . in the United States in which an executed individual has been exonerated” p. 273).
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Cases Cited
Herrera v. Collins, 506 U. S. 390 (1993)
Schlup v. Delo, 513 U. S. 298 (1995)
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
Furman v. Georgia, 408 U. S. 238 (1972)
Spaziano v. Florida, 468 U. S. 447 (1984)
Gregg v. Georgia, 428 U. S. 153 (1976)
Kansas v. Marsh, 548 U. S. 163 (2006)
Griswold v. Connecticut, 381 U. S. 479 (1965)
Snyder v. Massachusetts, 291 U. S. 97 (1934)
Palco v. Connecticut, 302 U. S. 319 (1937)
Rochin v. California, 352 U. S. 165 (1952)
Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942)
Loving v. Virginia, 388 U. S. 1 (1967)
Ford v. Wainwright, 477 U. S. 399 (1986)
Atkins v. Virginia, 536 U.S. 304 (2002)
Roper v. Simmons, 543 U. S. 551 (2005)
Trop v. Dulles, 356 U. S. 86, 101 (1958)
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Sarver, V.T. Abolishing the Death Penalty: An Untested Legal Argument. Am J Crim Just 39, 808–817 (2014). https://doi.org/10.1007/s12103-014-9264-4
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DOI: https://doi.org/10.1007/s12103-014-9264-4