Robert J. Smith (DePaul University College of Law; The Charles Hamilton Houston Institute for Race and Justice) has posted A Comprehensive Proposal for Adjudicating Actual Innocence Claims (Washington Law Review, Forthcoming) on SSRN. Here is the abstract:
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The United States Supreme Court has not ruled that the federal constitution prohibits the continued incarceration (or even the execution) of a prisoner who is actually innocent of the crime for which he was convicted.
This article situates actual innocence claims within a constitutional framework, and proposes a comprehensive three-tiered solution for adjudicating them. It proceeds in five parts. Part One provides an overview of how the Court has treated innocence claims to date. It considers both gateway innocence claims, those in which the prisoner asserts that new evidence of his factual innocence should permit substantive review of an otherwise defaulted claim that he received a constitutionally deficient trial, and claims of freestanding innocence, in which prisoners assert that new evidence of factual innocence warrants relief despite the fact that the conviction stemmed from a constitutionally sound trial.
For the rest of the abstract, click through.
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Part Two examines whether the constitution protects the innocent from wrongful conviction. There is no explicit text in the Constitution that reads: “Congress shall pass no law to convict an innocent person” in the same way that the First Amendment reads: “Congress shall pass no law...abridging speech.” Nonetheless, innocence-protection is an “axiomatic and elementary” value infused throughout constitutional criminal procedure. Its spirit motivates the Fifth and Sixth Amendments. The lack of culpability that it represents serves as the baseline against which grossly disproportionate sentences are measured under the Eighth Amendment. It is the animating reason for providing staples of Due Process such as the presumption of innocence and the requirement that the prosecution prove each element of an offense beyond a reasonable doubt.
Against this backdrop of concern for protecting the innocent from being convicted in the first place is relentless debate over whether a court possesses the power to release a prisoner who is able to demonstrate his actual innocence. In Part Three, I explain that the idea that an appellate court could not grant relief to a demonstrably innocent person is rooted not in extreme callousness, but rather upon an assessment that criminal liability is most accurately determined at trial. At common law, a sentence was rendered shortly after the conviction. No real ability to house prisoners for long periods existed. Punishment was physically severe, but temporally limited. Even if a longer period of time between conviction and execution had existed at the founding, in a world without forensic science, the best evidence likely had already come out at trial. Indeed, traditional forms of evidence, such as eyewitness identification, became less reliable following the trial. Witnesses died. Memories faded. Evidence decayed. Other societal interests, such as finality, comity, and judicial economy weighed heavily against upsetting verdicts.
The balance of interests has shifted substantially over the past quarter century. A rapid escalation in the quality and quantity of forensic science evidence (including new tools and modes of analysis) has meant that for the first time in history some forms of evidence can become more reliable with time. At the same time, the perceived reliability of bedrock forms of evidence, such as eyewitness identifications and confessions, has diminished significantly. Worse, perhaps, social cognition research demonstrates that fact-finders sometimes assign probative force to or misremember evidence based on arbitrary factors such as race. The underlying value of innocence-protection remains, but, taken together, these developments seriously question the singular focus on the trial as the location where reliability is best determined. The point is made more salient when considered in light of the fact that the vast majority of felony cases (95% or more) are resolved without a trial.
We need to extract from the trial some of the conceptual importance that has been given to it as the place where guilt can be determined most accurately and redistribute that relative importance to reflect the understanding that criminal liability is often detected most accurately after the conviction has become final. Only then does the plausibility of the right to conviction-relief (or to not be executed) upon a finding of actual innocence crystallize. The question of whether a federal court can exercise its habeas corpus powers to adjudicate claims of innocence from state court prisoners, especially when those claims are procedurally barred, still remains, however. In light of the functional differences in how and where innocence is best determined and our awareness of the frequency of wrongful convictions, a reweighing of the competing interests in obtaining substantively accurate guilt determinations and doing individual justice versus the societal interests in finality, comity, and judicial economy is now warranted.
I argue that the Constitution provides the right to have a judge hear previously unheard evidence (or evidence that has been fundamentally altered due to new scientific analysis) at any point after the conviction has become final (regardless of whether a court has previously reviewed such a post-conviction claim) so long as the new evidence meets pre-defined credibility and persuasiveness thresholds. Part Four articulates a three-tiered (“reasonable probability of innocence,” “probable innocence,” and “clear and convincing innocence”) framework and then considers objections. In Four A, I describe the proposed framework. In order to get a new trial, a petitioner must present “clear and convincing” evidence that he is innocent of the underlying crime. Since a death sentence is different in kind than any other punishment, however, and since the possibility of presenting future evidence that provides a conclusive showing of innocence is irrelevant once the person has been executed, a lesser showing of probable innocence should bar execution. Finally, I propose that the standard for so-called gateway innocence claims (e.g. where proof of innocence is sufficient to forgive ordinary procedural impediments to the review of constitutional claims) be lowered to a “reasonably probability” standard. In exchange for the reduction in the quantum of evidence required, the underlying constitutional issues that can be raised under the gateway innocence exception should be restricted to those that are likely to effect the guilt-innocence determination. This alteration brings the exception in-line with the overriding innocence-protection framework.
This three-tiered approach balances the necessity of avoiding wrongful imprisonment (or execution) with the legitimate concern that a person who is wrongfully released could not be convicted in a new trial due to fluctuations in the availability of witnesses, memory, and evidence quality that accompany the passage of time. It provides a uniform rule for treatment of possibly innocent prisoners as they litigate such claims in both state and federal courts. Indeed, one benefit of establishing the contours of the constitutional right is to encourage adequate resolution of state prisoner claims before they get to federal court. The proposal also prevents doctrinal leakage by providing an outlet for freestanding claims without requiring courts to stretch the merits of underlying claims of constitutional error. This approach is not without serious objections, however.
Part Four B considers the four most powerful objections. The “Innocence Unmodified” objection is the argument (best articulated by Professor Emily Hughes) that separating “legal” and “actual” innocence into separate constitutional claims dilutes respect (and enforcement capabilities) for the litany of criminal procedure protections. The “Sell Out” objection argues that providing execution-relief under a lower standard than conviction-relief is likely to deny outright exoneration to deserving prisoners on death row by reducing the primary disincentive for erring on the side of affirming the conviction - the potential for executing an innocent person. The “Fool’s Errand” objection asserts that even if a federal constitutional right to innocence-protection existed, federal courts cannot successfully adjudicate such claims on habeas review while staying true to the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Finally the “Shouting from the Rooftops” objection argues that existing safety nets in the system largely catch (the very few) cases of wrongful conviction, and thus, establishing a constitutional right is unnecessary and unwise. Part V concludes.
Very interesting & recommended.
