By: Brooke Kargman, Associate Staff

There have been vast advancements in forensic science largely due to developments in DNA technology.  Many prisoners who have maintained their innocence have accessed DNA evidence ultimately substantiating their claims, which was previously unobtainable.[1]  Inevitably, appeals courts are now confronted with “actual innocence” claims, including writs of certiorari and writs of habeas corpus, from prisoners who have maintained their innocence.[2]  Through the use of DNA technology, more than 300 wrongfully convicted people in the United States have been exonerated.[3]  Included in that sum are 18 people who have served time on death row.[4]

The discussion about the death penalty is an ongoing debate with many different angles.  Discussing the death penalty as a suitable punishment for our future capital offenders is a proactive debate; circulating advocacy for or against punishing potential future capital offenders.  Support for the death penalty has wavered, but is currently the lowest it has been since 1972, at 60%.[5]  Discussions of the death penalty have now emerged into a retroactive aggressive debate.  It has been argued that a person who is “actually innocent” does not necessarily have the constitutional right to be released from death row.[6]

The question becomes: does a convicted felon who has had a full and fair criminal trial have a constitutional right to be liberated of their death sentence when their “actual innocence” claim is supported by new evidence?

Many of our history’s esteemed policymakers have asserted that the Constitution is a “living document” so far as allowing lawmakers to create laws that adapt to society’s progressive ideals and advancements while reserving the rights written in the Constitution’s text.[7]  Former Supreme Court Justice O’Connor has said, “execution of a legally and factually innocent person would be a constitutionally intolerable event.”[8]

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) implemented tighter restrictions on habeas cases and expanded the deference given to federal courts.[9]  The Supreme Court has held that innocence is not enough and that a convicted felon does not have the constitutional right to postconviction DNA testing, even at their own expense, to prove their actual innocence.[10]  In the widely talked about Troy Davis death penalty case, Justice Scalia dissents to Davis’ Petition for Writ of Habeas Corpus and writes, “[t]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.”[11]

By not finding it constitutionally obligatory to exonerate “actually innocent” people from their death sentence, our policymakers are keeping our Constitution stagnant.  The Eighth Amendment of our Constitution prohibits cruel and unusual punishment,[12] and executing an innocent person in the 2000s is seemingly anything but commonsensical or in accordance with the concept of our Constitution as a “living document.”


[1] Browse the Profiles, INNOCENCEPROJECT.ORG, (last visited Nov. 23, 2014).

[2] E.g., Petition for Writ of Certiorari, In re Davis, 557 U.S. ___ (2009) (No. 08-1443).

[3] Mission Statement, INNOCENCEPROJECT.ORG, (last visited Nov. 23, 2014).

[4] Id.

[5] See Jeffrey M. Jones, Americans’ Support for Death Penalty Stable, GALLUP (Oct. 23, 2014),

[6] See Dahlia Lithwick, Why It’s Constitutional to Execute an Innocent Man, NEWSWEEK, (Sept. 2, 2009, 8:00 PM),

[7] See generally Adam Winkler, A Revolution Too Soon: Woman Suffragists and the “Living Constitution”, 76 N.Y.U.L. Rev. 1456, 1457 (2001) (“[C]onstitutional provisions are… interpreted to meet present social needs… Legal historians credit Progressive Era thinkers such as Oliver Wendell Holmes Jr., Christopher Tiedeman, Louis D. Brandeis, and Woodrow Wilson for making the ‘earliest efforts’ to adopt a changing, evolving Constitution.”); Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (“[T]he words of the Amendment are not precise… their scope is not static… must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”).

[8] David Grann, Trial By Fire, THE NEW YORKER (Sept. 7, 2009)

[9] Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.

[10] Petition for Writ of Certiorari, In re Davis, 557 U.S. ___, 36-37 (2009) (No. 08-1443); DA’s Office v. Osborne, 557 U.S. 52 (2009).

[11] Petition for Writ of Certiorari, In re Davis, 557 U.S. ___, 2 (2009) (No. 08-1443) (Scalia, J., dissenting) available at

[12] U.S. Const. amend. VIII.