By Ryan Leonard
Advancements in the technology of DNA analysis have allowed for the vindication of claims of actual innocence. However, claims of actual innocence, even when supported by evidence, are not sufficient to trigger a federal habeas review. In Herrera v. Collins the Court grounded its decision to not grant federal habeas review in cases of actual innocence on two primary factors. The first reason the Court gave was tradition; the Court said, “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation….” The second reason given was the administrative hassle that could result if federal courts could review actual innocence cases. The Court explained that if such review were to be permitted, nothing “would be more disruptive of our federal system.” Both rationales, however, seem very weak relative to the magnitude of a potentially innocent person being executed.
Federal courts need not, and should not, retry a case any time a person found guilty alleges actual innocence. Such a result would be unnecessary and burdensome on the court system. Implementing a standard of review that requires some substantial evidence to support the claim of actual innocence seems like the very least that justice requires. The Court argued that the rule that does and should apply is that “federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution – not to correct errors of fact.” The obvious problem is that errors of fact may lead to an individual’s constitutional rights being violated. Imprisoning or executing an innocent person may result from an error in process or fact, but in either case is a violation of at least the Eighth Amendment; imprisoning and/or executing the innocent is certainly both cruel and unusual.
The frequency of death penalty exonerations is 4.1%. Such an error rate begs the question of whether it is reasonable, or morally permissible, to impose the death penalty when 1 in 25 of those convicted will go on to be exonerated. In his concurrence in Kansas v. Marsh, Justice Scalia appeals to the argument that there is no confirmed case of an innocent person being executed as part of his general defense of the constitutionality of state statutes that impose the death penalty. That style of argument strikes is something analogous to, “I’ve never been ejected from my car before, so why should I wear a seatbelt?” However, Justice Scalia’s argument is actually slightly less powerful than that, because one can be definitively sure that one has not been ejected from a car in the past, while we are not definitively sure whether or not an innocent person has been executed.
Moreover, the implications of Justice Scalia’s argument are two-fold. First, if the argument were that the death penalty is kosher because we have no known case of an innocent person being executed, then the inverse would likely follow – that the death penalty would not be kosher if there was such an example. That inference would mean that we must wait until we execute an innocent person before arguments against the death penalty will be worth entertaining. Again, as mentioned above, it is illogical reason to wait for tragedy to strike when preventative steps can be taken now. The second implication of Justice Scalia’s line of reasoning is that the execution of an innocent person would be a sufficiently compelling argument to consider ending the death penalty. Based on Justice Scalia’s tone in his opinion, at times saying in a disparaging manner that if there were a known execution of an innocent person, the people who oppose the death penalty would be screaming the person’s name from every rooftop in the country, he seems to be expressing the view that he would not have opposed the death penalty even if there were an example of an innocent person being executed. If that is the case, there is no reason to bother even making the argument that no innocent person has been executed when it is a moot point to his sensibilities.
The incidents of false convictions is enough to make one wonder whether it is possible in the abstract for a judge or juror to know someone is guilty, absent an authentic video recording of the defendant committing the crime for which he is accused. If such knowledge is possible, then the argument for abolishing the death penalty due to incidents of actual innocence would likely fall apart when it is known that the defendant did what he did. A burden of proof that required actual knowledge would, however, be so onerous as to never, or almost never, be met. If a burden of actual knowledge is unattainable, then the reasonableness of keeping the death penalty seems to crumble; executing people because they probably, or most likely, did something is sure to result in judges and juries getting it wrong some percentage of the time.
 Gerald LaPorte, Wrongful Convictions and DNA Exonerations: Understanding the Role of Forensic Science, Nat’l Inst. of Justice (Sept. 7, 2017), https://nij.ojp.gov/topics/articles/wrongful-convictions-and-dna-exonerations-understanding-role-forensic-science.
 Herrera v. Collins, 506 U.S. 390, 404 (1993).
 U.S. Const. amend. VIII.
 Samuel Gross et al., Rate of False Conviction of Criminal Defendants who are Sentenced to Death, PNAS (May 20, 2014), https://www.pnas.org/content/111/20/7230.
 Kansas v. Marsh, 548 U.S. 163, 182 (J. Scalia concurring).
 See id.
Image Source: https://www.abajournal.com/news/article/prosecutor-misconduct-in-dna-exoneration-cases-makes-it-less-likely-real-perpetrator-will-be-found-study-says.