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Sturm College of Law


Death penalty, Capital punishment, Eighth Amendment


The death penalty remains the most contentious issue in criminal law jurisprudence, and continues to be challenged on both constitutional and moral grounds. What is most remarkable about American death penalty jurisprudence is that it has traditionally focused on purely technical and procedural aspects of the imposition of the death penalty, despite the fact that the most vulnerable plank in the arsenal of death penalty defenders is evidence that innocent people have been, and will continue to be, executed. Perhaps no legal principle is more difficult to explain to the layman or first-year law student than that of all the panoply of technical, procedural, constitutional, and other legal grounds that may be set forth in appeals of death penalty cases, actual innocence is not one of them. The U.S. Supreme Court confirmed this to be a bedrock principle of American death penalty jurisprudence in Herrera v. Collins, in which the Court held that "[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas corpus relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Nevertheless, some commentators have found suggestions trending towards a new constitutional standard encompassing innocence in the concurring and dissenting opinions of five justices in Herrera who asserted that the execution of an innocent person did indeed raise constitutional issues. This included the concurring opinion of Justice O'Connor with Justice Kennedy joining, and the dissenting opinion of Justices Blackmun, Stevens, and Souter, who recognized an "Eighth Amendment challenge to [the death penalty] on the ground that he is actually innocent," and further held that "[e]xecution of the innocent is equally offensive to the Due Process Clause of the Fourteenth Amendment."