Reevaluating Capital Punishment: The Fallacy of a Foolproof System, the Focus on Reform, and the International Factor

Greta Proctor, Reevaluating Capital Punishment: The Fallacy of a Foolproof System, the Focus on Reform, and the International Factor, 42 Gonz. L. Rev. 211 (2007).

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I. Introduction

Fourteen month-old Jaidyn Leskie disappeared in June 1997 while under the care of his mother’s boyfriend.[1] The red-haired toddler’s disappearance marked the beginning of a media flurry in his native Melbourne, Australia.[2] Six months after Jaidyn’s disappearance, picnickers stumbled upon his body floating in Blue Rock Dam just seventeen kilometers north of Melbourne.[3]

Eager to find Jaidyn’s killer, police ordered DNA testing on all of his clothing found at the site.[4] Victoria Police Forensic Services Centre confirmed that the toddler’s bib contained DNA from both Jaidyn and an unidentified female.[5] In accordance with protocol, the lab ran the unidentified DNA through the police database.[6] They found a match.[7] The DNA from Jaidyn’s bib was identical to that of a twenty-two-year-old recent rape victim.[8] Police interviewed the unlikely suspect and determined that she was not involved in Jaidyn’s murder, although they could not explain the presence of her DNA on the child’s bib.[9] Finally, in 2003, the scientist who tested Jaidyn’s blood-stained clothes admitted that he had also tested the outside of a condom containing the rape victim’s DNA during the same week in 1998.[10] He insisted, however, that he had not contaminated either sample.[11] U.S. forensics and DNA expert Professor Bruce Weir characterized the likelihood of such an adventitious match as one in 3.5 billion.[12]

The Victoria lab’s obvious DNA mix-up joins a number of other high-profile, high-stakes forensic fiascos both within the U.S. and abroad during the last decade.[13] These debacles cast serious doubt on the presumed infallibility of scientific evidence. By natural extension, such errors also call into question the many convictions which have hinged on forensic data.[14] A jury’s misplaced reliance on erroneous evidence is most problematic where the punishment is ultimate and irrevocable—capital trials. The Washington Post perfectly stated the problem in an article following the hundredth exoneration of an innocent man on death row in America: “[o]nce again it becomes clear that prosecutors and juries can be absolutely sure they’ve got the right man—and be absolutely wrong.”[15] %CODE2%
Simply put, scientific evidence is inescapably subject to error. Even the most reliable technology can fall prey to human mistake, political pressure, and perjury. By exposing the impossibility of a foolproof death penalty, this article seeks to uncover the true dilemma facing America as politicians and courts misguidedly focus on fixing our flawed and controversial system. [16] America is at a crossroads: we must abolish capital punishment entirely, or we must find a way to reconcile the inevitable sacrifice of some innocent persons with our Constitution. This ultimate choice, although obstructed by the ongoing focus on reform, is made even more urgent by the international community’s increasing alliance against the death penalty.

Part I of this comment provides a brief overview of the modern evolution of capital punishment both here and in the general international community at large. In doing so, Part I reveals the internal conflict America has about the death penalty and briefly identifies varying domestic and global pressures to reform. Part II focuses on the ways in which particular recent reforms in the U.S. have sought to repair the system by narrowing our application of the death penalty in response to its perceived injustices. Despite the numerous reforms, Part III of this Comment notes that the “beyond a reasonable doubt” standard still results in a number of innocents on death row, in what Supreme Court Justice Stevens called a “serious flaw” in the system.[17] Part III presents the recent political and academic push for further corrective reform aimed at this particular problem of innocents on death row. Specifically, Part III examines the proposed “absolute proof” standard for capital trials, which relies on the seeming infallibility of scientific evidence to weed out the guilty from the innocent. Part IV dismantles the notion of an effectively reformed, foolproof system of capital punishment. Specifically, Part IV contends that an “absolute proof” standard is unjustifiably expensive and impossible to meet, and that it is inescapably subject to scientific and human error, perjury, and political pressure. Part IV contends that the problems inherent in capital punishment are simply not resolvable through any reforms. Finally, Part V asserts that because of the impossibility of a perfect death penalty system, the U.S. really has only two options: (1) abolish capital punishment entirely, or (2) accept the inevitable sacrifice of some innocent persons, which may be irreconcilable with the Constitution.

II. An Overview of the Modern History of Capital Punishment

in the U.S. and Internationally[18]

A. An Introduction to Domestic Discord: The Death Penalty in America

from 1972–Present

Even a cursory survey of the death penalty’s recent history in the U.S. reveals a conflicted society. In 1972, the U.S. Supreme Court in Furman v. Georgia recognized the haphazard and discriminatory manner in which the states applied capital punishment, and essentially abolished the death penalty by judicial fiat.[19] To the delight of abolitionists, a majority of the divided Court held that the death penalty, as administered, constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the U.S. Constitution.[20] Yet only two justices rejected capital punishment altogether.[21] Taken as a whole, the Court’s many separate opinions actually implied that a fair application of the death penalty would pass Constitutional muster.[22] As a result, states that desired to retain the punishment passed new legislation attempting to rectify problematic sentencing discretion.[23] Thirty-five state legislatures and the U.S. Congress enacted one of two ostensibly viable alternatives to retain capital punishment: (1) making capital punishment mandatory in certain, defined situations, or (2) instituting clear guidelines to assist sentencing authorities in applying capital punishment.[24]

By 1976, challenges to both varieties of the new legislation were predictably back before the Supreme Court.[25] In Gregg v. Georgia, seven justices made it clear that capital punishment for murder did not “invariably violate” the Eighth Amendment.[26] As in Furman, the majority was again unable to sign on to a single opinion, but this time the overall balance had shifted toward maintaining the system despite its potential failings.[27] Justice Stewart, speaking also for Justices Powell and Stevens, announced that (1) based on prevailing standards of decency, the death penalty did not categorically violate the Eighth Amendment, and (2) a well-drafted statute that gave jurors controlled discretion could effectively address and solve the concerns expressed in Furman. [28]

Furman and Gregg present merely an introduction to America’s modern conflicts over capital punishment and the longstanding pressures to reform our system. But despite the unending internal discord, most U.S. states have chosen to retain the option to impose the death penalty since its essential judicial reinstatement in Gregg. Currently, thirty-eight state statutes provide for capital punishment, as do both federal civilian and military laws.[29] The state of Texas has executed 340 people since 1982, topping out at forty executions in 2000 and executing twenty-three people in 2004.[30] Just recently, California has likewise ramped up its number of yearly executions, and the state’s legislators are in no hurry to slow the pace.[31] There have been over one thousand executions nationwide since 1973, including fifty-nine in 2004 and sixty in 2005.[32] As of July 1, 2006, approximately 3,400 prisoners currently sit on death row in America.[33]

B. America’s Death Penalty on the World Stage and the Influence of

International Perspectives on Domestic Policy

Altogether, the U.S. ranks fourth in the world in number of annual executions, behind only China, Iran, and Saudi Arabia.[34] Interestingly, here America stands out as the sole democracy alongside the very countries it seeks to distinguish itself from politically.[35] In fact, the U.S.’ strongest political allies, such as the United Kingdom, are among the most diametrically opposed to capital punishment.[36] Incidentally, Saddam Hussein’s trial has brought international ideological conflicts over capital punishment to the fore. During the creation of the Iraqi Special Tribunal, the U.K. vehemently urged the coalition-created council to remove the death penalty from the list of sentencing options.[37] When the council refused, the U.K. respectfully withdrew from advisory positions, stating both moral and practical objections.[38]

In a progressively globalized world, these types of ideological impasses will undoubtedly only become more frequent. Consider the U.S.’ refusal to utilize the International Criminal Court (“ICC”) to bring global terrorists to trial.[39] Even though the ICC especially focuses on the gravest worldwide human rights violators, and though al Qaeda has committed atrocities in myriad countries, the U.S. nonetheless insists that terrorists face trial in American military courts.[40] This hard-line public stance against the ICC, motivated at least in part by the ICC’s inability to impose capital punishment,[41] provokes tension in an international community dedicated to building the credibility of the ICC. Furthermore, for countries that view capital punishment as a categorical violation of human rights, it is difficult to reconcile America’s posited role as global human rights protector with our dual role as one of the lone top executors of our own citizens.

America’s place among its usual foes and against its usual friends is not only uncomfortable on the foreign relations stage, but has also become a thorn in the Supreme Court’s side as it wades through domestic capital punishment cases. Although Justice Scalia ardently insists that American law and opinion is solely relevant in determining the scope of domestic capital punishment policies, other justices often give weight to the laws and opinions of successful democracies worldwide, such as in the recent Roper v. Simmons.[42] Justice Scalia himself may be contentedly isolationist, but cases like Roper demonstrate that the majority of the Court finds the mere fact that America holds company with some of the most notorious human rights abusers worldwide disconcerting at the least. So even though American public opinion remains fractured on the issue, international ideology may nonetheless influence the Court’s future domestic policy as the number of executing countries worldwide continues to shrink.

The unmistakable international shift toward the abolition of capital punishment has been especially patent over the last few decades. Over forty countries have ended capital punishment for all crimes just since 1990.[43] As a result, 129 countries representing over 60% of the globe are currently abolitionist by law or in practice.[44]

In addition to individual countries’ various enactments, there currently exist four international agreements that explicitly compel member States to eliminate the death penalty.[45] Though U.S. Supreme Court justices disagree about the extent of international influence on domestic policy, these four agreements indisputably influence American policy more than any particular country’s laws because they are multilateral. Indeed, in Roper v. Simmons the comparative law portion of the Court’s opinion relied primarily on multilateral international treaties, before also examining individual State practice—especially in the U.K.[46] To be sure, the U.S. often looks in particular to the U.K. because of our shared history.[47] Nonetheless, multi-party treaties are weightier for the Court than any individual country’s singular laws because they represent a unified number of our political allies.

Of the four treaties proscribing the use of capital punishment on an international plane, one agreement especially stands out in terms of influence and scope. In 1982, the Council of Europe adopted Protocol No. 6 to the European Convention on Human Rights.[48] Protocol No. 6 was the first international agreement to provide for complete abolition of capital punishment, but it only binds States during peacetime. [49] Despite the wartime reservation, Protocol No. 6 may nonetheless operate to cement international abolition of capital punishment more than any other international agreement. This is because currently, any European State that wishes to join the Council of Europe must sign on to Protocol No. 6.[50] Since membership in the Council of Europe is a prerequisite to joining the European Union, the requirement effectively ensures that abolition of capital punishment will continue in correlation with the expansion of the European Union.[51] Essentially, the powerful, core countries in Western Europe coerce new members into ending capital punishment by inextricably binding abolition to membership in the European Union. Even Protocol No. 6’s seemingly-broad wartime reservation is deceptively lenient,[52] because in reality the European Union exerts substantial political pressure on incoming member countries to renounce capital punishment altogether.[53] Thus, as membership in the European Union expands, more of the globe will correspondingly abolish the death penalty in its totality. Likewise, as more countries forsake capital punishment, the U.S. will face greater pressure and discomfort as the standalone retentionist.

C. A Closer Look at Domestic Discord: Recent Individual State Developments

In addition to the weight that increasing international consensus bears on American capital punishment policy, noteworthy individual U.S. state policies in recent years have also kept the death penalty issue at the fore for the Court.[54] For example, while states like Texas nonchalantly carried out up to forty executions in 2000, Illinois’ then-governor George Ryan declared a statewide moratorium ending all Illinois executions during the same year.[55] Interestingly, Governor Ryan had actually voted to reinstate the death penalty when he was a state legislator in 1977.[56] But between reinstatement in 1977 and the moratorium in 2000, the state of Illinois executed only twelve persons, yet it exonerated thirteen prisoners from death row.[57] Citing the disquieting over-50% failure rate,[58] Ryan halted all executions in the state pending review and reform of the system.[59] An appointed commission studied the state’s capital punishment system and despite returning to the legislature with eighty-five specific suggestions for reform, the state legislature did not enact a single change.[60] Just before his departure from office in 2003, a frustrated Ryan pardoned four prisoners facing execution and commuted the sentences of the rest of Illinois’ 167-member death row.[61]

Illinois is only one of several states to reconsider the desirability of the death penalty in recent years.[62] In contrast to Illinois’ legislative moratorium, other state high courts have recently abolished state capital punishment laws by judicial decision. In 2004, the Kansas Supreme Court, in State v. Marsh, declared the state death penalty statute facially unconstitutional, precluding further application of the capital punishment in Kansas.[63] The Kansas court’s decision relied on the standards that the Supreme Court set forth in 1976 in Gregg and Woodson.[64] It concluded that the Kansas statute was unconstitutional because it mandated the death penalty whenever a jury determined that mitigating and aggravating factors were in equipoise, rather than allowing a jury to have final say in determining whether to apply capital punishment. [65] The decision sparked fierce backlash in Kansas among citizens and representatives alike, and prompted state legislators to petition the Supreme Court for review.[66]

While Kansas’ legislature responded swiftly and harshly to the Marsh decision, New York seems relatively content to let capital punishment rest in peace after a similar judicial death knell to its state statute. In 2004, New York’s highest court held the state’s 1995 death penalty law unconstitutional because its language tended to coerce juries into imposing arbitrary and unreliable death sentences.[67] Following the decision, the New York Senate suggested possible amendments to the death penalty statute that would fix the problem and render the statute Constitutional.[68] However, in the April 2005 vote, the state Assembly could not muster enough votes to get the bill out of committee.[69] For the current session at least, capital punishment in New York is dead.

III. Toward a More Perfect System at Home

A. Thirty Years of Continuing Capital Punishment Reform

Despite the unmistakable international movement toward abolition and various domestic moratoriums, the overall U.S. trend has been toward fixing our flawed system of capital punishment rather than scrapping it altogether.[70] While international pressure is seated in total moral opposition to capital punishment,[71] internal domestic pressure is mostly of a different kind. Calls for reform dominate politicians’, scholars’, and judges’ criticisms of the death penalty.[72] Americans on the whole do not seem to find the punishment itself morally repugnant, cruel, or inhumane, but grapple instead with its unfair application.[73] Over the approximately thirty years since Gregg v. Georgia essentially reinstated capital punishment on these grounds, the U.S. Supreme Court has been chipping away at the perceived imperfections in our system and narrowing its scope.[74] Yet over the course of the same period of narrowing jurisprudence, the numbers of annual executions have been steadily increasing even as the national violent crime rate continues to fall.[75] Some scholars argue that the narrowing trend in the application of the death penalty represents a larger shift toward total abandonment of the punishment altogether in the U.S.[76] But the steadily increasing number of actual annual executions and the emphasis on reform rather than abolition suggest otherwise. In fact, an exceedingly narrowly tailored death penalty might be tougher to eradicate because it accords with our ideas of justice and fairness.[77] America simply doesn’t seem ready to condemn capital punishment in its entirety.

The first major inroads into the scope of capital punishment followed almost immediately after the Supreme Court reinstated the death penalty in Gregg. The Court struck down capital punishment for rape in Coker v. Georgia, and for unintentional killings in Enmund v. Florida.[78] In Coker, the Supreme Court for the first time articulated the prevailing test used to determine whether imposition of the death penalty in a given circumstance violates the Eighth Amendment.[79] “[W]e seek guidance in history and from the objective evidence of the country’s present judgment . . . .”[80] Two landmark juvenile death penalty cases in the late 1980s again forced the Supreme Court to examine prevailing standards of decency under the Eighth Amendment and define the precise scope of capital punishment.[81] In 1988, the Court concluded in Thompson v. Oklahoma that the Eighth Amendment prohibited the execution of a defendant who was only fifteen when he committed murder.[82] Just one year later, the Court in Stanford v. Kentucky upheld the execution of juveniles who were sixteen or older at the time of their crime.[83] Relying on the test articulated in Coker, the Court concluded that public standards of decency by and large supported executions of sixteen-year-old offenders but not fifteen-year-olds, as evidenced by state legislation.[84] On the same day that it decided Stanford in 1989, the Supreme Court also considered and sustained the constitutionality of executing the mentally retarded in Penry v. Lynaugh.[85]

In both 2002 and 2005, the Supreme Court overruled its own precedent with regard to executing juveniles and the mentally retarded, thus carving out further exceptions to the imposition of capital punishment. First, in Atkins v. Virginia, the Court ruled that execution of the mentally handicapped did categorically violate the Eighth Amendment.[86] The Court observed that since its decision in Penry, a clearly identifiable national consensus had developed against execution of persons with an IQ less than seventy.[87] Indeed, after the Penry decision many state legislatures addressed the specific issue of executing the handicapped, and in each instance voted overwhelmingly to prohibit the practice.[88] Those states that retained the right to execute the mentally retarded practiced such right infrequently.[89] But it is still interesting how the Court used national opinion as a justification in Atkins. Though the Court claimed that national opinion had actually shifted, the Court’s own evidence seems to suggest instead that it had misgauged national opinion the first time around in Penry. The fact that state legislatures reacted nearly uniformly to Penry by prohibiting capital punishment for the handicapped merely implies that the Supreme Court got it wrong the first time around, not that there was a marked change in American opinion. Instead of saying that the national paradigm had actually shifted in a mere thirteen years, the court might have just called Penry what it was—a misguided decision that prompted legislative correction. On the other hand, the best objective indicia of public attitude are the actions of state legislatures.[90] Since it took the Penry decision to get the states to examine the issue head-on, perhaps it is understandable that the Supreme Court needed to see legislative movement to accurately gauge what Americans really felt.

B. Roper v. Simmons and the Introduction of the International Factor

The most recent limitation on capital punishment, and the one most reliant on international law, came in 2005 with the Supreme Court’s 5-4 decision in Roper v. Simmons.[91] In Roper, the majority again overruled precedent by concluding that the Eighth and Fourteenth Amendments of the U.S. Constitution prohibit the execution of minors under the age of eighteen.[92] As in Atkins, the Court began by examining popular opinion toward the juvenile death penalty as evidenced by state legislation.[93] First, the Court highlighted that thirty states had outlawed juvenile executions totally, and that the practice was markedly rare even in those states that allowed it.[94] However, the legislative evidence cited in Roper was not nearly as strong as it had been in Atkins. In both cases, state legislatures nationwide had shifted consistently toward limiting capital punishment for the selected groups.[95] But the Court pointed out that the change in state laws identified in Roper lacked the dramatic pace that had been so heavily emphasized in Atkins.[96] The shift toward prohibition of juvenile executions was decidedly slower and less impressive, and although the Court called the change “significant,” it concluded that it could not pin down a solid national consensus in its favor.[97] Based on the consistent but not rapid legislative changes, the Court concluded that Americans at least viewed juveniles, like the mentally retarded, as less culpable than adult killers.[98] Thus, the Court concluded they were undeserving of a death sentence.[99]

Most notably, the Roper Court concluded its decision by devoting six paragraphs to international constitutional comparativism.[100] The Court’s lengthy discussion of international law in Roper confirmed a very major and very controversial step in death penalty jurisprudence. In previous capital punishment and Eighth Amendment cases, the Court had sometimes fleetingly referred to international practice as a sort of confirmation that its decision found wide support.[101] But in the earlier cases, international comparisons were often hidden in a footnote or referred to merely in passing, and even then they met with vehement dissent.[102] In contrast, Roper presented international comparativism as a whole new angle of analysis in death penalty jurisprudence. Predictably, textualist Justice Scalia was horrified at the thought that the actions of the world community should bear any relevance to U.S. constitutional law.[103] He criticized the majority for allowing international law to “take center stage” over what the majority admitted was weak evidence of domestic national consensus.[104] Furthermore, Scalia reasoned that since the President and the Senate had not signed or ratified any of the multi-national agreements abolishing juvenile executions, the treaties weighed against the Court’s conclusion, if anything.[105] He found that the United State’s absence among signatories was evidence of either no national consensus at all, or national consensus contrary to the majority’s conclusion.[106] Scalia’s criticism of the Court is fair, in some respects at least. The Court did pay lip service to national consensus even though there really was not the same strong evidence here that the Court had required in previous cases, such as Atkins.[107] Plus, if the Court really believes that laws are the best indicator of what the country thinks, then perhaps the Court should pay more deference to the decisions of both political branches, not just the legislature. The executive branch’s choice not to sign the treaties is an indication that at least a great deal of national opinion is aligned against international opinion. Scalia might at least be right in protesting the way the majority seems to slip international law in through the back door. On the other hand, it seems a bit ridiculous for Justice Scalia to assert that national opinion alone should be relevant to Constitutional decisions. To be sure, the U.S. Constitution is a unique American document. But the U.S. is only one part, albeit a powerful part, of an increasingly globalized world community. At a time when America works with her allies in a global war on terrorist criminals, the tension over capital punishment between America and those countries is bound to come to a political head.[108]

Although parties on both sides of the debate agree that Roper marks a dramatic step in constitutional construction, Justice Kennedy’s majority opinion attempted to downplay its significance. Perhaps to mitigate Justice Scalia’s criticism, the majority carefully and repeatedly qualified international law as instructive but not controlling.[109] Even the placement of this section of analysis at the very end of the opinion is deliberate and notable, suggesting to the reader that the Court simply examined international law as a final confirmatory step.

Why the Roper Court decided to step into international law at all can be explained variously. The Court’s choice to rely on world opinion in a bigger way than before could merely reflect an increasingly globalized society.[110] Alternatively, perhaps because the evidence of national consensus was weak compared to prior cases, the Court needed another, more unanimous objective source to bolster its subjective conclusion. Justice Scalia certainly accused the court of this type of judicial activism; the majority merely went looking for a strong hook upon which to hang their personal opinion and found consensus in international law.[111] Or the Court may have simply made a pragmatic political calculus. Franklin E. Zimring, professor of law at Boalt Hall, certainly feels that politics played a role in Roper.[112] “[A]n exception for minors is not controversial even in nations with death penalties . . . . [O]nly three [nations] allow death sentences for those younger than 18. Did we really want to remain on a short list with Iran and Somalia?”[113] In support of this view of Roper as a pragmatic decision, the Court did begin its examination of international practice with a blunt statement justifying its holding: “[T]he stark reality [is] that the U.S. is the only country in the world that continues to give official sanction to the juvenile death penalty.”[114] The majority went on further to highlight America’s uneasy, solitary position: “[T]he United States now stands alone in a world that has turned its face against the juvenile death penalty.”[115] These statements support the conclusion that our place among top executors China, Iran, and Vietnam is politically uncomfortable. The fact that the Court pointedly said as much suggests that international law will have ramifications for future American capital punishment policy.

IV. A Lingering, Problematic Standard of Proof and the Proposed “Foolproof” Solution

A. “Beyond a Reasonable Doubt” and the Execution of Innocents

Notwithstanding the continual narrowing trend within death penalty jurisprudence, prominent flaws still plague the U.S.’ capital punishment system.[116] Despite the many judicial and legislative reforms attempting to fix the system and resolve our uneasiness,[117] capital punishment remains morally unworkable. Six innocent men were released from death row in 2004 alone, exposing a potent defect in a punishment supposedly reserved for only the worst killers.[118] Since 1973, U.S. courts have freed a total of 123 innocent persons from death rows across the country.[119] In each instance, defendants have been able to establish their innocence conclusively with concrete evidence after being convicted and sentenced in a jury trial.[120] Most alarming is the unknown but certain number of innocents who are not able to prove their cases in time.[121] One study published in 1992 documented twenty-three specific instances in which the U.S. likely put an innocent man to death.[122] Obviously, juries that are convinced of a defendant’s culpability “beyond a reasonable doubt” are still unable to weed out the innocent from the guilty.

One example of such failure is the story of Ray Krone, who earned the grisly title of being the 100th person exonerated from death row in the U.S. since 1973.[123] The state of Arizona pegged Krone for the murder of a cocktail waitress in 1991.[124] According to a co-worker, the woman had been planning to meet a man named Ray after work, and Krone lived within the vicinity of the bar.[125] Most conclusively, the state also had powerful scientific evidence when experts definitively matched a bite mark from the victim’s chest area to Ray Krone’s teeth.[126] Disturbingly, two separate juries convicted Krone based on the seemingly reliable forensic evidence.[127] Krone served ten years in prison due to the matched bitemark though he never bit the victim at all.[128] Finally, in 2000, Krone’s attorney requested newly available DNA testing.[129] The DNA from the victim’s body was a conclusive match to a man who had lived next door to the bar at the time of the murder and was now serving time in prison for child molestation.[130] Thus, Krone became the twelfth death rower to be cleared by DNA evidence.[131] In 2002, Krone walked out of a Yuma, Arizona prison as a free man after ten years behind bars for a crime he assuredly did not commit.[132]

The sheer number of exonerations due to innocence in capital cases has raised growing concern and recent calls for further reform.[133] Supreme Court Justice John Paul Stevens stated in a speech before the American Bar Association in August 2005 that he believes there still exist “serious flaws in our administration of criminal justice.”[134] He cited DNA evidence specifically as shedding light on the troubling problem of erroneous death sentences.[135] Stevens’ words call to mind Justice Harry Blackmun’s infamous 1994 statement:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored—indeed, I have struggled—along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulation ever can save the death penalty from its inherent constitutional deficiencies. The basic question—does the system accurately and consistently determine which defendants “deserve” to die?—cannot be answered in the affirmative.[136]

Stevens, who wrote the majority opinion in Atkins, is arguably one of the Court’s most liberal members.[137] But other Justices have highlighted their concern over the death penalty as well. In 2001, Justice O’Connor suggested during a speech to Minnesota Women Lawyers that the U.S. death penalty system may cause some innocents to be executed.[138] O’Connor guessed that Minnesota, a non-death-penalty state, “must breathe a big sigh of relief every day.”[139] Interestingly, though the Associated Press reported her words in the Washington Post, neither the Minnesota Women Lawyers nor the Supreme Court would release a transcript of the speech.[140] It is possible that the refusal to memorialize her words was merely a matter of policy for the Court and the association. However, Justice O’Connor’s words may also have proven too controversial to publish. After all, her speech came at a time when the death penalty was reemerging as a hotly contested political topic.[141] Furthermore, although she was the Supreme Court’s notorious swing voter, Justice O’Connor, who wrote for the majority in Penry, generally supported capital punishment during her tenure on the Court.[142] The fact that she went on to dissent in Roper further suggests that she may have worried that the public would misconstrue her words as a call for abolition.

The number of capital cases on the Supreme Court docket during the 2005-2006 term add additional confirmation that death penalty reform is a prominent issue for the Court.[143] One such case, State v. Guzek, actually centered on the problematic standard of proof that often results in a jury’s wrongful conviction of an innocent defendant.[144] Guzek asked the Court to decide whether juries can consider the presence of residual doubt as to the defendant’s guilt as a mitigating factor during the sentencing phase in a capital trial.[145] In other words, the case asked whether a jury that is convinced beyond a reasonable doubt, can nonetheless consider their residual doubt in deciding whether or not to apply the death penalty. Although the Supreme Court ultimately held that neither the Eighth nor Fourteenth Amendment permitted defendents to capitalize on a juror’s sliver of doubt,[146] Guzek’s presence before the Supreme Court indicates that society is uncomfortable with the failures of the traditional “beyond a reasonable doubt” paradigm. The case suggests that there is a gray area in the minds of jurors between “reasonable doubt” and “no doubt,” in which society may be averse to applying a death sentence. Given America’s record of erroneous convictions, jurors are appropriately concerned. However, the overall inability for any jury to ever be 100% certain means that even jurors with no doubt as to a defendant’s guilt should be cautious in applying an irrevocable punishment. To be sure, recognizineg the gap between “reasonable doubt” and “no doubt” is a positive step toward ameliorating the plague of wrongful capital sentences. But in the great American tradition, it naively assumes that reform will be enough.

B. The Proposed “Foolproof” Solution: “Beyond All Doubt”

The proposed solution to the conviction and execution of innocent defendants lies in complete reform of the benchmark “reasonable doubt” standard for capital trials. Scholars, judges, and legislators alike have recommended replacing the old model with a new, heightened “beyond all doubt” or “absolute proof” standard, which is reliant upon seemingly infallible scientific evidence.[147] A concrete illustration of the suggested, heightened standard of proof lies in Massachusetts Governor Mitt Romney’s so-called “foolproof” death penalty bill.[148] Romney calls the bill a “gold standard” for the nation because of its tough hurdles and numerous safeguards designed to weed out the innocent from the guilty.[149] Due to its rigorous requirements and narrowed scope, the bill has also been called “capital punishment lite.”[150]

Practically speaking, Romney’s bill would reinstate the death penalty in Massachusetts only for deadly acts of terror, multiple killings, torturous murders, or the murder of law enforcement personnel or witnesses in a criminal trial.[151] It raises the requisite level of certainty by requiring the jury to find that there is “no doubt” about the defendant’s guilt, with aggravating circumstances outweighing mitigating factors.[152] Moreover, the measure requires the presence of conclusive scientific or physical evidence that reaches a “high level of scientific certainty.”[153] The bill defines scientific and physical evidence as encompassing DNA, fingerprints, footprints, photographs, ballistics, and bitemark evidence of the type that sent Ray Krone to death row.[154] Finally, the proposal would establish an independent scientific panel for automatic review of each capital conviction, and would also create an extrajudicial death penalty oversight commission.[155]

V. The Fallacy of a “Foolproof” System

A. An Impossibly High, Unjustifiable Pricetag

Proposals like Governor Romney’s bill provide the false impression that an infallible system of capital punishment is tenable. Romney and others envision an airtight death penalty that consistently and accurately sorts the guilty from the innocent.[156] In fact, a workable “no doubt” or “foolproof” system is an illusion. The suggested reforms are impossibly expensive and impose a hopeless burden on prosecutors. Furthermore, the Ray Krone debacle is just one example of the fact that scientific evidence, however conclusive, is not always foolproof. Most importantly, even where scientific technology such as DNA is infallible,[157] the Leskie case and others demonstrate that the humans who utilize it are not.[158] Simply no amount of restructuring can wrench capital punishment from its inexorable grasp on the innocent. Reform is not enough; the problems inherent in capital punishment are not resolvable.

The first glaring problem with death penalty reform legislation is its colossal price tag. Capital punishment already costs states that utilize it between about $1.3 million and $3.2 million per case, compared to around $740,000 for murders where death is not on the table.[159] Additional safeguards merely pile excessive auxiliary costs atop what is an unjustifiably expensive system to begin with. For example, Romney’s bill would create an independent scientific review advisory committee which then appoints an independent scientific review panel that thoroughly double-checks the forensic work done in the case.[160] Upon any death sentence, the bill also requires mandatory appellate review by the state’s highest court, as well as possible review by the planned “death penalty review commission.”[161] Massachusetts District Attorney William R. Keating estimates that Romney’s bill would cost the state at least $5 million to prosecute one capital case.[162] In contrast, Keating says that it takes a total of about $1 million to prosecute a life-in-prison murder case, including the cost of lifetime incarceration.[163]

In reality, many states today, and certainly the federal government, can barely meet their overextended budgets under the status quo, therefore they certainly cannot meet the increased costs of Romney-style reforms.[164] In response to Romney’s bill, Massachusetts state prosecutors have emphasized that the state medical examiner’s office and crime laboratory are already overburdened and backlogged.[165] Even without the added burden of analyzing scientific evidence in death penalty cases, it already takes several months for the labs to analyze scientific evidence in a criminal case.[166] One prosecutor noted that a single death penalty case costing around $5 million would almost entirely eat up his office’s total annual budget of around $6.8 million.[167] The state’s Attorney General flatly stated that the police departments, medical examiner, and crime labs are underfunded and unable to carry out the safeguards called for in the Romney bill.[168] Massachusetts, which happens to have a current budget surplus of nearly $1 billion,[169] simply cannot afford the type of conditions called for in Romney’s “foolproof” bill. Other states with looming debt and budget shortfalls, including the federal government,[170] certainly cannot afford the added expenses of reform. Moreover, any system that spends such vast amounts on capital punishment necessarily diverts precious resources away from other priorities such as education, public safety, housing, and jobs.[171] In fact, unemployment, low education, lack of housing opportunities, and reduced police budgets have all been linked to increased crime rates.[172] Thus, cutting funding in these areas might actually have an anti-deterrence effect and increase violent crime.

B. Faulty Forensics: The Inevitable Fallibility of Scientific Evidence

Arguably, a state that intends to take a life should spare no expense in ensuring that life deserves to be taken. Concededly, the Romney reforms might be worth their enormous economic price tag if they effectively protected the innocent from wrongful execution. However, in addition to being outrageously expensive, death penalty reform proposals assume as a threshold matter that scientific evidence is 100% reliable. Logically, in order for jurors to be confident beyond all doubt, they must be able to rely upon 100% accurate evidence linking a particular defendant to a particular crime. In fact, no evidence is foolproof. Inevitably, even the most unfailing scientific evidence fails some of the time.

For example, fingerprint evidence has long been universally hailed as impeachable evidence in a criminal case[173]—until recently, that is. In 2004, FBI fingerprint experts linked Oregon attorney Brandon Mayfield to the Madrid train bombings that killed 191 people.[174] A fingerprint found on the bag containing the detonators was a fifteen-point match to Mayfield’s fingerprint.[175] The FBI arrested Mayfield and jailed him for two weeks based on the “absolutely incontrovertible” “bingo match.”[176] In fact, Mayfield had never been to Madrid; Spanish authorities later identified Algerian al-Qaeda member Ouhnane Daoud as the bomber.[177] The FBI subsequently released Mayfield, acknowledging their mistake, but pointed to the “remarkable” resemblance between Mayfield and Daoud’s fingerprints in its defense.[178]

Similar false fingerprint matches have occurred in criminal cases across the U.S.[179] Juries might very well be absolutely convinced beyond all doubt of a defendant’s guilt based on the evidence in a given case. But if that evidence turns out to be faulty, then the jury may have convicted an innocent person, despite their level of certainty. For instance, innocent Stephan Cowens of Massachusetts, described as an “average joe,”[180] went to prison for over six years based on a faulty fingerprint match.[181] Spurred by Cowens’ 2004 exoneration, the Massachusetts Supreme Judicial Court heard a case in September 2005 that quashed fingerprint evidence in another high-profile police shooting.[182] While the court upheld the reliability of latent fingerprint identification in general, it found that police committed irreversible error when they pieced together partial prints that were alone incapable of identifying the suspect.[183] The state had provided no proof as to the reliability of the piecing-together method either in the fingerprint examiner community at large or in any professional studies.[184]

Apart from fingerprint evidence, non-fingerprint forensic evidence may also be unreliable. In February 2005, Texas Governor Rick Perry authorized the execution of convicted arson-murderer Cameron Willingham over protests by renowned arson expert Gerald Hurst.[185] Willingham’s last words from the Texas death chamber were “I am an innocent man, convicted of a crime I did not commit.”[186] Most peculiarly, the experts in the case seem to agree with Willingham. Hurst and other experts asserted in a report to the Governor that the arson evidence used to convict Willingham was unreliable.[187] After reexamination of the scene, testimony, and documents, multiple specialists agreed that the fire did not look like arson at all.[188] The experts concluded that the fire that killed Willingham’s three young daughters was probably accidental.[189] All signs indicate that Texas’ reliance on faulty science led to the actual execution of an innocent man just under two years ago.[190]

Ironically, Texas District Attorney Ori Wright dismissed arson-murder charges in an identically flawed case against Ernest Ray Willis.[191] A jury convicted Ernest Willis in 1987 and sentenced him to death for starting a house fire that killed two women.[192] Willis had been in the house during the fire, but managed to escape.[193] The only evidence against him was his reportedly strange behavior immediately after the fire, and a flame “accelerant” police found in the home’s carpet.[194] When a federal judge later overturned Willis’ conviction for incompetent representation at the original trial,[195] District Attorney White hired arson expert Gerald Hurst to review the evidence in the case.[196] Just as in Willingham’s case, the experts found no evidence that the fire was intentionally started.[197] The “accelerant” identified by police turned out to be nothing more than a common burn pattern identified in most electrical fault fires.[198] District Attorney White released Ernest Willis on October 6,
2004, giving him $100 and an apology.[199] “I’m sorry this man was on death row for so long and that there were so many lost years.”[200]

Beyond insulting Willis by offering him $100 for seventeen years of his life wasted behind bars, Texas also exposed an inexcusable inconsistency in its capital punishment system. The admittedly unreliable arson evidence that convicted Willis was identical to the evidence that had convicted Willingham above. Texas’ same arson experts refuted the evidence in both cases, and declared that each man was probably innocent.[201] Arbitrarily, Texas freed Willis but executed Willingham.[202] The Supreme Court calls the death penalty the most extreme punishment reserved only for the country’s most extreme criminals.[203] Yet the utterly arbitrary difference between Willis’ exoneration and Willingham’s execution violates the very definition of capital punishment, not to mention the individual rights of the wrongly executed. The problem is compounded further by the disturbing fact that Texas, which obviously cannot delineate between guilt and innocence, routinely accounts for nearly a third of all executions nationwide.[204]

Ray Krone is yet another example of faulty forensics.[205] Recall that juries were so convinced of Krone’s guilt that they convicted him of murder twice based on a defective bitemark match.[206] There is no reason to believe that an “absolute proof” or “no doubt” standard would have prevented Krone’s erroneous conviction. A “no doubt” system that envisions 100%-unassailable convictions is intrinsically reliant on the presence of foolproof evidence. Two juries were convinced of Krone’s guilt, and yet both were absolutely wrong because they relied on flawed physical evidence.[207] Simply put, without watertight evidence, there can be no watertight convictions. Unfortunately, even physical evidence can be faulty, and its proven unreliability undermines any verdict that is based upon it.

C. DNA’s Often-Overlooked Vulnerabilities

Admittedly, DNA evidence, if not other forensic evidence, would have prevented Krone from going to prison. Indeed, nearly-perfect DNA evidence is what ultimately exonerated Ray Krone, Stephan Cowens, and others. Yet even DNA evidence, which is for all practical purposes scientifically reliable,[208] will always be subject to human error, political pressure, and perjury.[209] “In fact, post-conviction DNA testing has exposed more bad DNA evidence than bad fingerprint evidence.”[210]

The Jaidyn Leskie case highlighted earlier plainly exemplifies what happens when perfect science collides with human fallibility.[211] Scientifically speaking, the Victoria crime lab’s DNA match was flawless, but the mixed-up samples still led police to the wrong individual.[212] With humans necessarily at the helm of DNA labs, all scientific evidence is likewise open to mistake or tampering. Luckily, the Leskie blunder was so obviously incorrect that police quickly ruled out the identified individual as a suspect despite the DNA proof. However, errors such as the Leskie mix-up illustrate that juries could continue to convict innocent people like Ray Krone based on faulty forensics, even with an absolute proof standard and modern DNA evidence.

The Leskie case is no anomaly. Similar high-stakes DNA mix-ups have occurred in the best crime labs in the U.S. In one particularly high-profile, controversial case, Virginia resident Earl Washington spent seventeen years in prison for a rape-murder he did not commit.[213] Following the 1982 rape and stabbing death of a Virginia woman, a jury convicted the mentally retarded Washington and sentenced him to death.[214] Washington maintained his innocence after the trial, and on the eve of his execution in 1993, then-Governor Douglas Wilder ordered DNA testing.[215] Top analyst Jeff Ban examined DNA from a vaginal swab and a blanket taken from the victim.[216] He concluded that although it did not definitively match Washington’s DNA, he could not positively exclude Washington.[217] In light of the inconclusive results, Governor Wilder commuted Washington’s sentence to life imprisonment.[218] Finally, in 2004, Virginia Governor James Gilmore ordered a complete audit of the DNA evidence in the Washington case.[219] Analyst Jeff Ban again tested the swab and blanket, and reported that Washington’s DNA was not a match.[220] Gilmore finally pardoned Washington altogether, but the crime lab scandal was not over yet.[221]

In actuality, the second round of tests that Ban performed had come back utterly inconclusive, just like the first set of tests.[222] Citing intense political pressure from Governor Gilmore and lab director Paul Ferrara to pin down the DNA with finality, Jeff Ban admitted to reporting false information because “inconclusive results were not an option.”[223] Clearly, innocent human error is not the only risk weighing on the credibility of DNA or other physical evidence. Ban’s fabrication exemplifies the more sinister possibility that analysts have the capabilities to tamper with and influence DNA results. To be sure, police detectives share similar opportunities to plant or construe evidence in criminal investigations. However, the possibility of misconduct by crime scene investigators is arguably more problematic because DNA evidence has the reputation of being incredibly reliable. Capital cases often hinge on the presence of DNA matches or other forensics, especially under Romney’s proposed reform, and jurors cannot dispute DNA matches in the same way they might mistrust a police witness. Moreover, the ability to manipulate evidence at multiple levels of investigatory police work only further highlights the likelihood that juries will continue to convict and sentence to death innocent defendants, regardless of reformed standards of proof. Even though Jeff Ban’s lie ultimately exculpated rather than indicted an innocent man, it nonetheless exposed the unpredictable human element behind DNA results. Perhaps most disquieting, analyst Jeff Ban did not lose his job.[224] In fact, after the scandal he went on to sit on the national panel of experts that sets countrywide standards for DNA testing.[225]

After Earl Washington’s release, a private lab in California did finally conclude that Washington’s DNA was absolutely not present on the victim or her blanket.[226] Faced with the twice-botched DNA evidence in the Washington case, Virginia Governor Mark Warner ordered a complete audit of the state’s crime lab.[227] Until the scandal, Virginia State Crime Laboratory’s DNA unit had been reputed as one of the country’s best public labs.[228] The comprehensive audit of 123 criminal cases turned up one other major error in addition to Washington’s case.[229] Unfortunately, Virginia’s lab is only the second in the country with any independent oversight to catch such mistakes.[230] In most states, the labs are controlled solely by police or prosecutors,[231] making it tougher to uncover internal errors or political improprieties.

Reports from crime labs in other American cities corroborate concerns about the reliability of the very DNA evidence that could lead a jury to incorrectly find “no doubt” as to a defendant’s guilt. For example, Indianapolis’ Marion County crime lab underwent recent investigation for mismanagement and abuses.[232] The inquest ended in January 2005 with no criminal charges, but investigators found that analysts had skipped steps in protocol and committed other procedural abuses.[233] In 2002, the Los Angeles Times reported that the city’s police department had “accidentally destroyed” genetic evidence in more than 1,100 sexual assault cases since 1995.[234] If any of these sexual assault cases were also murders, the lost samples might mean that convicted death rowers could lose the chance at exoneration by future DNA tests. More recently, hurricane Katrina washed away up to nineteen inmates’ DNA samples, thereby precluding at least one avowedly innocent inmate from proving his innocence.[235] Finally, in June 2004, a Texas court found that Houston DNA lab chief James Bolding had committed perjury during a rape trial.[236] A court of inquiry took up the investigation, but later dropped the matter due to expiration of the statute of limitations.[237] In sum, considering the inevitable shortcomings of even the most reliable scientific evidence, no juror can ever faithfully attest with 100% certainty that a particular defendant committed a particular murder.

D. An Impossible Burden of Proof

One final reason that Romney-style reforms cannot succeed is that they impose an impossible burden on state prosecutors. Illinois prosecutors, for example, have publicly decried an Illinois bill proposing reinstatement of the death penalty under a “no doubt” standard similar to the Romney bill.[238] Nearly all of the state’s sitting district attorneys oppose the bill, which would require jurors to find absolutely no doubt about the defendant’s guilt before imposing the death penalty.[239] The prosecutors assert that the standard is unworkable, unwieldy, and would call every single case into question.[240] Indeed, since no honest juror can ever be 100% sure, the burden on prosecutors to eliminate all doubt does seem impossible. If the prosecutors’ fears are correct, then a no doubt system would lower the number of capital convictions drastically. Essentially, the prosecutors would be thwarted from asking for death even though it would technically remain available to them. For the prosecutors’ sake, the state must either retain or dispose of capital punishment, but not maintain it in such an unworkable way that no prosecutor would utilize it.

VI. The Crossroads: Where Do We Go From Here?

Ultimately, an infallible system of capital punishment is simply impossible. Despite decades of reform, the nagging probability that we have executed innocents still plagues America’s collective conscience, as evidenced by the comprehensive reforms targeted at this problem. Champions of the “no doubt” proposals hope to achieve a foolproof death penalty by merely overhauling the old standard of proof. But it is not that easy. The suggested reforms overlook the overt, recurrent shortcomings of even the most perfect scientific evidence upon which they rely. In light of the ever-present risks of mix-ups, political influence, and fabrication of DNA evidence, no honest juror can ever be 100% absolutely certain of an individual’s guilt. Inevitably, we will execute an innocent person. Attempts to minimize the instances of erroneous capital convictions only distract Americans from the real dilemma at hand. The reality is that we are left with just two options. First, if we must retain capital punishment then we must accept that some innocent humans will inevitably be convicted, sentenced, and executed as a sort of sacrifice to maintain the punishment. On the other hand, if it is unconstitutional or just morally reprehensible to execute even a few innocents among the many guilty, then our only solution may be to abolish the death penalty in its entirety.

For some, the trade-off inherent in maintaining capital punishment is morally reasonable in the long run because it allows us to retain the option of a death penalty for the most heinous and deserving killers. Nineteenth-century British philosopher William Paley famously likened a wrongful execution to a soldier dying in battle: “he who falls by a mistaken sentence may be considered as falling for his country . . . .”[241] Joshua Marquis, a well-known modern supporter of capital punishment, similarly acknowledges the catch-22 inherent in maintaining capital punishment.[242] Nonetheless, Marquis argues that the intermittent, albeit unfortunate, execution of a few innocents is an acceptable sacrifice in order to retain what he believes is a valuable social institution.[243] Marquis, like Paley before him, approaches the innocence problem as a moral cost-benefit analysis in terms of the greatest good for the greatest number. Just like a war in which soldiers will undoubtedly perish for their country, Marquis would probably agree that the erroneously executed essentially give their lives for the maintenance of a valuable and effective punishment.[244] Marquis repeatedly contrasts the thirty or so people he believes have been truly wrongly sentenced to death with the greater number of murder victims, such as 160 murdered by Timothy McVeigh alone.[245] For him, the benefits simply outweigh the cost.[246] From a utilitarian standpoint alone, this position is understandably attractive. However, it overlooks potential practical limitations. The execution of even a negligible number of innocents may be more than morally repugnant; it may be unconstitutional. Moreover, as the Supreme Court relies more and more on increasingly abolitionist world opinion, international pressure may soon override cost-benefit calculations.

A. The Weight of Precedent

Although the Supreme Court has yet to confront the Constitutional issue head-on, there is some precedent that at least obliquely speaks to this dilemma. Several justices broached the question in Herrera v. Collins in 1993.[247] In Herrera, a defendant who had been convicted of murder petitioned the Court for a writ of habeas corpus predicated on his avowed innocence.[248] The defendant argued that the Eighth and Fourteenth Amendments categorically banned the execution of an innocent person.[249] Though the majority hinted that the defendant’s proposition “has an elemental appeal . . .,”[250] it declined to answer definitively whether due process prohibits the execution of an innocent person.[251] Instead, the majority opinion analyzed the case in terms of whether due process required post-conviction judicial review of any “actual innocence” claim.[252] In this particular case, the defendant had gone through multiple judicial proceedings, both trials and appeals, and had categorically lost.[253] Only ten years later, in light of his impending execution, did the defendant make this seemingly last-ditch attempt to pin the crime on his deceased brother.[254] The majority held that the defendant’s meager evidence was insufficient to invoke judicial relief.[255]

Although the majority opinion expressly declined to frame Herrera to answer whether the Constitution prohibits the execution of innocents, it did offer two relevant and conflicting thoughts on the issue. First, the Court admitted that the defendant’s argument was appealing because the very purpose of criminal justice is to accurately sort the innocent from the guilty.[256] Then, in the same breath, the court alternatively noted that “due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person . . . . To conclude otherwise would all but paralyze our system for enforcement of the criminal law.”[257] The Court’s first point confirms that the execution of a possibly innocent person is morally and constitutionally abhorrent. Its counterpoint too is a logical one, which seems to acknowledge the impossibility of an utterly fail-proof system.

These two statements together hardly constitute a basis upon which to predict future policy decisions. Nonetheless, the fact that the Court briefly acknowledged both sides of the argument might suggest that future treatment of this issue could utilize some sort of balancing test. For example, on balance, the average criminal trial must go on despite the likelihood of a miscarriage of justice somewhere along the line. Though wrongful indictment and conviction certainly weighs strongly in favor of the individual defendant, the necessity for societal order through criminal punishment of wrongdoers is indubitably stronger, whether based in utilitarian or retributive justifications. The balance shifts, however, for capital trials.[258] Because the death penalty is the ultimate in extreme, irrevocable sanctions, the risk of wrongful imposition becomes far more weighty in capital cases.[259] To be sure, the need for law and order is still a strong counterweight, but the Court can easily satisfy both sides of the equation by slipping down a notch along the punishment scale to life in prison without the possibility of parole. Life in prison is certainly still extreme punishment, but not as extreme as death, and so the sides of the scale seem to equalize.

Again, based solely on the majority opinion in Herrera, it is impossible to conclude which way the Court leans and whether the Court would actually take the type of analytical approach outlined above. But in spite of the majority’s predilection to avoid the question, five of the Herrera Justices indicated in concurring and dissenting opinions that the Constitution plainly forbids execution of innocents, which suggests that capital punishment may someday not be worth its costs.[260] Justice O’Connor, joined by Justice Kennedy, wrote that “the execution of a legally and factually innocent person would be a constitutionally intolerable event.”[261] Justices Blackmun, Stevens, and Souter went on to specify that any erroneous execution invariably violates both the Eighth and Fourteenth Amendments.[262] They found that a death sentence is indisputably beyond excessive and disproportionate for a person who committed no murder.[263] Furthermore, the Justices asserted that execution of an innocent person is the ultimate “arbitrary restraint,” in violation of the individual liberties recognized by Fourteenth Amendment substantive due process.[264] Though the make-up of the Court continues to change,[265] the Herrera distribution might be a signal that the Court will eventually rule that a fallible executionary system cannot stand. At the very least, the opinions suggest a hard-fought battle over this issue in the future, after it becomes clear that reform alone cannot solve the problems inherent in capital punishment.[266]

B. The Weight of the International Factor

In considering whether infallibility renders capital punishment unconstitutional, international law could very well be the x-factor that tips the final scale. Atkins and Roper, the Supreme Court’s most recent landmark capital punishment cases, both introduce world opinion into the death penalty equation.[267] Roper cagily claims that international law is merely relevant and not determinative in an Eighth Amendment analysis.[268] However, even if the Court relegates international opinion to mere “influential” status, it can only bolster the abolitionist position considering the ever-shrinking minority of retentionist countries worldwide. Furthermore, the fact that the U.S. stands alone among its foes and against its foreign allies on the death penalty issue may bear political weight. International law not only influences the Court’s purely constitutional analysis, but also causes political pressure on the foreign relations stage that can play a role in domestic policy-making and review.

VII. Conclusion

In sum, the admittedly vague Herrera opinions, together with the international factor and the Court’s general history of narrowing jurisprudence, shed some light on what is still an unanswered question. Even if the death penalty is so entrenched in our society that we are willing to accept the inevitable trade-off of a few innocents for the many guilty, does the Constitution forbid such sacrifice? The answer seems to be yes. Faced with its inevitable failures, perhaps we must simply give up on the death penalty experiment altogether. Though legislatures continue to attempt to resolve capital punishment’s problems and salve our consciences with reforms intended to protect the innocent, the reality remains that fallible humans cannot operate an infallible system. Even reforms predicated on the most reliable science and technology epidemically fail. Of course, the risk of erroneous conviction and wrongful punishment exists in every single trial; to require its elimination would impossibly paralyze the legal system. However, when the punishment doled out is irrevocable and most severe, the reality of a few wrongful sentences becomes cruel and unusual.[269] Even with the absolute certainty reform, statistics suggest that we will continue to kill innocent people. The problems inherent in capital punishment are not resolvable through any reforms. To echo Justice Blackmun’s prescient 1994 proclamation,[270] it may be finally time to cease our constant tinkering with capital punishment.


*. J.D. candidate 2007, University of San Diego School of Law. B.A. 2003, Sierra Nevada College. The author thanks Professor Donald Dripps and Rebecca Byrne for their feedback on this article.

[1]. Melissa Jenkins & Charisse Ede, Tiny Jaidyn’s Death Riddle, Mercury (Hobart, Austl.), Oct. 7, 2006, at 32.

[2]. See Complaint on Moe `Slur’ Upheld, Australian, Nov. 2, 2004, at 2. Australian media coverage of the young boy’s disappearance is comparable to the U.S. media’s exhaustive coverage of familiar missing persons including Laci Peterson, Natalee Holloway, Elizabeth Smart, and JonBenet Ramsey.

[3]. Jenkins & Ede, supra note 1.

[4]. Keith Moor, New Clues in Death of Jaidyn, Herald Sun (Melbourne, Austl.), Oct. 2, 2003, at 4.

[5]. Id.; Nikki Protyniak, DNA Match Confounds, Herald Sun (Melbourne, Austl.), Dec. 17, 2003, at 29.

[6]. Moor, supra note 4.

[7]. Id. For a thorough discussion of what DNA match frequencies such as one in one trillion really mean, see Jonathan J. Koehler, Proving the Case: The Science of DNA: On Conveying the Probative Value of DNA Evidence: Frequencies, Likelihood Ratios, and Error Rates, 67 U. Colo. L. Rev. 859, 860-64 (1996). For a discussion of the relationship between the way in which DNA match frequencies were framed and presented to mock jurors and their opinion of and reliance on the DNA evidence, see Jonathan J. Koehler, The Psychology of Numbers in the Courtroom: How to Make DNA-Match Statistics Seem Impressive or Insufficient, 74 S. Cal. L. Rev. 1275 (2001).

[8]. Moor, supra note 4.

[9]. Id.

[10]. Protyniak, supra note 5.

[11]. Id.

[12]. Id.

[13]. See Jennifer Eckroth, Tainted DNA Evidence and Post-Conviction Reversals in Houston, Texas: Suggested Solutions to Curb DNA Evidence Abuse, 31 Am. J. Crim. L. 433, 434-35, 443-53 (2004) (highlighting instances of negligent or intentional abuse of DNA evidence in crime labs across the U.S. and particularly describing such abuses in Houston, Texas). See also Michael J. Saks & Jonathan J. Koehler, The Coming Paradigm Shift in Forensic Identification Science, Sci. Mag., Aug. 5, 2005, at 892-95 (discussing numerous actual cases of errors in forensic testing).

[14]. Forensic science expert evidence that is erroneous (that is, honest mistakes) and fraudulent (deliberate misrepresentation) has been found to be one of the major causes, and perhaps the leading cause, of erroneous convictions of innocent persons. Possible explanations for the large role forensic science plays in the problem of false convictions include, among others: forensic sciences that are of fundamentally poor-or at least of undetermined-quality; personnel and procedures that are predisposed to finding inculpatory evidence-or at least of avoiding exculpatory conclusions; experts being available to only one side of the adversary contest; testimony that exaggerates the capabilities of methods; and the probativeness of findings.

Michael J. Saks, et al., Model Prevention and Remedy of Erroneous Convictions Act, 33 Ariz. St. L.J. 665, 698 (2001).

[15]. 100 Death Penalty Errors, Wash. Post, Apr. 15, 2002, at A20.

[16]. Capital punishment is highly contentious, and reliable polling indicates that the American public is indeed divided. A May 2005 Gallup poll found that 74% of Americans support the death penalty for a person convicted of murder. Cara Anna, Worldwide Wedge: Death Divide; Capital Punishment Faces a Fresh Round of Global Scrutiny, Atlanta Journal-Constitution, Aug. 28, 2005, at E1. But in April 2005, a CBS News poll asked the question a different way. Id. The survey asked whether persons convicted of murder should receive “the death penalty, life in prison with no chance of parole, or a long prison sentence with a chance of parole.” Id. When framed this way, 39% chose the death penalty and an equal 39% chose life in prison without parole. Id. Data like this demonstrate that abolitionists and retentionists alike can use polling statistics to bolster their positions, since statistics on public opinion shift depending on how a survey question is framed. Perhaps this explains why the Supreme Court relies on legislative acts, rather than polling data, when it attempts to gauge American public opinion about the death penalty. Although poll results are closer to the primary source and thus intuitively reliable, the Court identifies legislative acts as the most objective, dependable indicator of national consensus. See infra Part II and accompanying notes. Considering the malleability of public surveys and the potential for manipulation, the Court’s position makes sense. For further discussion of the Supreme Court’s utilization of public opinion in capital cases, see infra Part II and accompanying notes.

[17]. Gina Holland, Stevens Assails Death Penalty: Justice Cites DNA as Proof of ‘Serious Flaws’, J. Gazette, (Fort Wayne, Ind.) Aug. 8, 2005, at 1A.

[18]. For especially recent and important developments in the U.S. not discussed in this section, see infra Part III.

[19]. The decision was by no means easy or uncontroversial. Altogether, the case spanned 232 pages, including a very short per curiam opinion and nine often-fiery concurring or dissenting opinions from each of the justices. Furman v. Georgia, 408 U.S. 238 (1972) (per curiam). The sheer extent to which the court fractured in this seminal case really marked for the first time American society’s continual internal conflict with capital punishment’s failings.

[20]. Id. at 239-40.

[21]. Sanford H. Kadish & Stephen J. Schulhofer, Criminal Law and its Processes 494 (7th ed. 2001).

[22]. Justices Brennan and Marshall concluded that capital punishment categorically violated the Eighth Amendment. Id. The other members of the majority found the haphazard, arbitrary, and racially motivated application of the death penalty offensive to the Eighth Amendment, rather than the institution as a whole. Id.

[23]. Id.

[24]. Id.

[25]. Compare Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (striking down mandatory death penalty statutes as unconstitutional), with Gregg v. Georgia, 428 U.S. 153, 156 (1976) (upholding statutes that provided guidelines for applying the death penalty, but still allowed the sentencing authority to exercise discretion—decided on the same day as Woodson).

[26]. Gregg, 428 U.S. at 169, 195.

[27]. Id. at 153-56. See also Furman, 408 U.S. at 240.

[28]. Gregg, 428 U.S. at 154-55. The Court spent a great deal of time fleshing out its justification for holding that the death penalty did not categorically constitute cruel and unusual punishment. It noted that in terms of original intent and historical acceptance, the Constitution’s framers and the country as a whole accepted capital punishment. Id. at 177. The Court also stated that the Eighth Amendment was not static, but was dependent on evolving standards of decency in public opinion. Id. at 172-73. In this case, public opinion at the time of the Court’s decision cut in favor of retaining capital punishment, as evidenced by the thirty-five legislative statutes allowing the death penalty at that time. Id. at 179-80. Finally, the Court iterated that public acceptance alone could not justify capital punishment, but that the punishment must also comport to the basic concept of human dignity at the core of the Eighth Amendment. Id. at 173. In this light, the Court categorically and subjectively determined that an extreme punishment was suitable for extreme crimes. Id. at 173-88. See also Gardner v. Florida, 430 U.S. 349, 357 (1977) (noting that the Supreme Court has an “obligation to re-examine capital-sentencing procedures against evolving standards of procedural fairness in a civilized society.”). As a final note, the Gregg Court also held that state legislatures could permissibly consider both retributive justifications and evidence of deterrence in deciding whether to enact local capital punishment statutes. Gregg, 428 U.S. at 183-88.

[29]. Amnesty International, Facts and Figures on the Death Penalty, (last visited Mar. 3, 2006) [hereinafter Facts and Figures].

[30]. Janet Elliot, Opponents Rally Against ‘Death Row Express'; Gathering Urges Texas Lawmakers to Abolish Capital Punishment, Houston Chron., Apr. 9, 2005, at B4.

[31]. Since 1978, California has only executed thirteen death rowers all told, a minute number compared to the nineteen executed by Texas just in 2005. Jordan Rau, No Hiatus for Death Penalty, L.A. Times, Jan. 20, 2006, at B1. See also Death Penalty Information Center, The Death Penalty in 2005: Year End Report 1 (2005), [hereinafter Year End Report]. However, California recently hosted three executions in just over two months. Bob Egelko, State Sees No Acceleration in Executions; Short-Term Increase Not a Sign of Things to Come, Official Says, S.F. Chron., Jan. 21, 2006, at B1. At least three more are possible for 2006, even though Attorney General Bill Lockyer denies that the trend indicates any long-term acceleration. Id. In January 2006, California’s legislature tabled a bill that would have halted executions pending a comprehensive study on the fairness of the state’s system. Id. The bill, spurred by the much-publicized Tookie Williams execution, did not garner enough supporters to justify a vote. Id.; Rau, supra. Notwithstanding recent acceleration, a February 2006 ruling by a California district court judge could cause at least a temporary standstill in executions. See Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006). In Morales v. Hickman, Judge Jeremy Fogel ruled that California’s lethal three-drug cocktail did not adequately protect the recipient from undue pain and suffering. Id. at 1046. The court held that in order for California to utilize its current lethal injection system, it must have an anesthesiologist on hand to ensure that the prisoner was not conscious when the drugs causing paralysis and heart failure took effect. Id. at 1045-47. In theory, this requirement seems feasible; California must merely hire an anesthesiologist instead of a prison official to administer the execution drugs. However, the ruling imposes a real practical barrier because administering lethal drugs is an ethical violation of the Hippocratic oath that physicians take. Victim’s Family ‘Devastated’ by Execution Delay,, Feb. 22, 2006, In fact, California had to indefinitely halt Michael Morales’ scheduled February execution because anesthesiologists refused to participate. Id. The roadblock means that California must reconfigure its lethal drug combination or find a way around the medical community’s ethical concerns.

[32]. Year End Report, supra note 31, at 1. These figures indicate a slight downswing from sixty-five executions in 2003 and ninety-eight in 1999. Death Penalty Information Center, Facts About the Death Penalty 1 (2006),

[33]. Death Penalty Information Center, supra note 32, at 2.

[34]. Amnesty International, Death Sentences and Executions in 2004, (last visited Mar. 3, 2006) [hereinafter Sentences and Executions]. China, Iran, Saudi Arabia, and the U.S. together made up more than 94% of all known executions carried out worldwide in 2005. Id. China is indubitably the world leader in executions, with estimates ranging from 1,770 to nearly 8,000 per year. Id. The countries that have carried out executions in the last six years have used one or more of the following methods: beheading, electrocution, hanging, lethal injection, shooting, or stoning. Facts and Figures, supra note 29. The U.S. currently retains both electrocution and lethal injection, presumably the most humane of the various methods, although the recent California Morales case calls even that assumption into question. Morales, 415 F. Supp. 2d at 1046. Although only electrocution and lethal injection are currently legal in the U.S., many Americans who think of the U.S. as a longtime worldwide human rights leader would probably be surprised to learn that five executions since 1976 have been carried out by hanging or firing squad. Death Penalty Information Center, supra note32, at 4.

[35]. [T]he countries that most vigorously employ the death penalty are generally ones that the United States has the least in common with politically, economically, or socially, and ones that the United States is wont to define itself against, as they are among the least democratic and the worst human rights abusers in the world.

Carol S. Steiker, Capital Punishment and American Exceptionalism, 81 Or. L. Rev. 97, 97 (2002).

[36]. William A. Schabas, International Law, Politics, Diplomacy and the Abolition of the Death Penalty, 13 Wm. & Mary Bill Rts. J. 417, 417-18 (2004).

[37]. Tom Parker, Prosecuting Saddam: The Coalition Provisional Authority and the Evolution of the Iraqi Special Tribunal, 38 Cornell Int’l L.J. 899, 907-08 (2005).

[38]. Specifically, the “practical reasons” cited by the U.K. were its obligations under various treaties. See infra notes 45 and 50. In withdrawing from the Tribunal, the U.K. sent a clear message that although it is the United States’ closest ally, it does not condone the use of capital punishment in occupied Iraq. One commentator predicted that “[i]f President Bush persists in his calls for the execution of Saddam Hussein, he is headed for a collision with his principal military and political ally.” Schabas, supra note 36, at 417. Predictably, President Bush praised the December 30, 2006 execution of Saddam Hussein, calling the hanging “an important milestone.” Saddam Hussein executed om Iraq, BBC News, Dec. 30, 2006, At first, U.K. Foreign Secretary Margaret Beckett likewise “welcomed the fact that Saddam Hussein had been tried by an Iraqi court ‘for at least some of the appalling crimes he committed’” and noted that he “has now been held to account.” Id. However, when unofficial video footage of the execution surfaced, showing scenes of Saddam being mocked and taunted with religious slurs, U.K. Deputy Prime Minister John Prescott (spokseman for Prime Minister Tony Blair) backpedeled, calling the execution “deplorable,” “unacceptable,” and “completely wrong.” Blair Critical of Hanging Scenes, BBC News, Jan. 7, 2007, Prescott and Blair called upon Iraq to conduct an inquiry into the circumstances of the hanging, and reiterated that the U.K. administration, as a general matter, is not in favor of capital punishment. Id.

[39]. Leila Nadya Sadat, An American Vision for Global Justice: Taking the Rule of (International) Law Seriously, 4 Wash. U. Global Stud. L. Rev. 329, 337-38 (2005).

[40]. Id. See also Alisha D. Telci, The International Criminal Court: Is The United States Overlooking An Easier Way to Hold Saddam Hussein and Osama Bin Laden Accountable for Their Actions?, 38 New Eng. L. Rev. 451, 481-84 (2004).

[41]. Article 77 of Rome Statute governing the ICC specifies the possible punishments to be imposed: “(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.” Rome Statute of the International Criminal Court art. 77, July 17, 1998, 2187 U.N.T.S. 90.

[42]. Roper v. Simmons, 543 U.S. 551, 575-78 (2005) (“In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty . . . . It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty.”). Whether the U.S. does or should rely on international practice in shaping domestic law is currently a hotly-debated topic. See Roger P. Alford, Roper v. Simmons and our Constitution in International Equipoise, 53 UCLA L. Rev. 1 (2005) (arguing that Roper represents the current Supreme Court’s desire to interpret the U.S. Constitution in harmony with international norms whenever possible). But see John K. Setear, A Forest with No Trees: The Supreme Court and International Law in the 2003 Term, 91 Va. L. Rev. 579, 582-83 (2005) (pointing to seven “international law cases” during the 2003 term in which the Supreme Court specifically avoided analyzing or applying international law, but nonetheless asserting that “with time, we will rely increasingly on international and foreign law in resolving what now appear to be domestic issues, as we both appreciate more fully the ways in which domestic issues have international dimension, and recognize the rich resources available to us in the decision of foreign courts”). For a discussion of Roper v. Simmons, see infra Part II.

[43]. A total of eighty-eight countries have ended capital punishment entirely and for all crimes. Facts and Figures, supra note 29. Eleven retain the option to execute for exceptional crimes only, such as wartime crimes, but have otherwise ended the death penalty by law. Id. Thirty more countries are functionally abolitionist; they have a policy against the death penalty and have not carried out an execution in at least ten years, but formally retain it by law. Id. Just recently in April of 2005, neighboring Mexico eradicated the last vestige of capital punishment from Mexican criminal law. Amnesty International, Death Penalty News, June 2005, (last visited Mar. 4, 2005) [hereinafter Death Penalty News]. Mexico’s last execution under civil law was in 1937, and its last execution under military law took place in 1961. Id. Nonetheless, until the recent legislative change, Mexican military courts continued to hand down death sentences. Id. Following official legislative abolition in April 2005, the Mexican Congress promised to formally amend the Constitution to prohibit capital punishment, though to date they have not done so. Id.

[44]. Amnesty International, Abolitionist and Retentionist Countries, (last visited Mar. 4, 2005) [hereinafter Abolitionist and Retentionist Countries]. Comparatively, only sixty-eight countries currently retain the death penalty, but even that number shrinks substantially when counting only those that have actually executed a person within the last year. Facts and Figures, supra note 29.

[45]. In 1989, the United Nations General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights, aimed at the abolition of the death penalty worldwide. Second Optional Protocol to the International Covenant on Civil and Political Rights, adopted Dec. 15, 1989, 1642 U.N.T.S. 414 [hereinafter Second Optional Protocol]. The Second Optional Protocol specifically prohibits application of the death penalty within the jurisdiction of any signatory State. Id. at art. 1. The only limited category under which a State may reserve the death penalty is for extremely serious military crimes committed during wartime. Id. at art. 2, para. 1. Fifty-nine States are currently party to the Second Optional Protocol, and seven more have signed but not ratified the agreement, although the U.S. is notably not a party. Amnesty International, Ratification of International Treaties, (last visited Mar. 3, 2005) [hereinafter Ratification of International Treaties]. See Mark Warren, Death, Dissent and Diplomacy: The U.S. Death Penalty as an Obstacle to Foreign Relations, 13 Wm. & Mary Bill Rts. J. 309, 320 (2004) (noting that Japan and the U.S. were the only two industrialized nations opposed to the Second Optional Protocol when it came before the U.N. General Assembly). See generally Simon H. Fisherow, Follow the Leader?: Japan Should Formally Abolish the Execution of the Mentally Retarded in the Wake of Atkins v. Virginia, 14 Pac. Rim L. & Pol’y J. 455 (2005) (asserting that Japan impermissibly lags behind the international community with regard to capital punishment, and should at least curtail its application of the death penalty to mirror U.S. developments). Any party to the International Covenant on Civil and Political Rights (“ICCPR”) may sign and ratify the Second Optional Protocol. John Paul Truskett, The Death Penalty, International Law, and Human Rights, 11 Tulsa J. Comp. & Int’l L. 557, 561-62 (2004). The U.S. did ratify the ICCPR in 1992, but not the Second Optional Protocol. Id. at 562. While the Second Optional Protocol to the ICCPR explicitly prohibits capital punishment, the ICCPR merely limits the death penalty by instituting due process requirements and a mandatory age limit. Id. The ICCPR also condemns torture generally. Id. The Protocol to the American Convention on Human Rights to Abolish the Death Penalty also stipulates total abolition of capital punishment, though on a narrower geographical scope. Organization of American States, Protocol to the American Convention on Human Rights to Abolish the Death Penalty, June 8, 1990, O.A.S.T.S. No. 73 [hereinafter Protocol to the American Convention]. Like the Second Optional Protocol, States may not sign with reservations except for a limited discretionary reservation for wartime crimes. Id. at art. 2. To date, Brazil, Costa Rica, Ecuador, Nicaragua, Panama, Paraguay, Uruguay, Venezuela, and Chile have all signed the Protocol. See Ratification of International Treaties, supra. The U.S. has not. Id. Like the Protocol to the American Convention, the remaining two international abolitionist agreements are regional in scope, though highly influential. Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Mar. 1, 1985, Europ. T.S. 114 [hereinafter Protocol No. 6]; Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, May 3, 2002, Europ. T.S. 183 [hereinafter Protocol No. 13]. The international community generally enforces State obligations under human rights treaties by designating a review body to oversee compliance. Mary K. Newcomer, Arbitrariness and the Death Penalty in an International Context, 45 Duke L.J. 611, 621 (1995). For the ICCPR, for example, the United Nations Human Rights Committee (“UNHRC”) is the overseer and enforcer. Id. at 622. The UNHRC regularly reviews compliance reports from States that have ratified the Optional Protocol. Id. It also reviews individual complaints that allege particular State violations of the ICCPR, and issues opinions as to the validity of the complaints. Id. Although the UNHRC opinions are not binding on any State, the international community views them with great deference. Id. Consequently, the opinions can be weighty in terms of political consequences for non-complying States. Additionally, the UNHRC appoints its own body to monitor a State once it has issued an opinion that such State has violated the ICCPR. Id.

[46]. Roper v. Simmons, 543 U.S. 551, 577 (2005) (“The United Kingdom’s experience bears particular relevance here in light of the historic ties between our countries and in light of the Eighth Amendment’s own origins . . . [in] a parallel provision in the English Declaration of Rights of 1689.”). See Alford, supra note 42, at 8.

[47]. Roper, 543 U.S. at 577.

[48]. Protocol No. 6, supra note 45. Currently, forty-six European countries have signed Protocol No. 6. Ratification of International Treaties, supra note 45.

[49]. “A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war.” Protocol No. 6, supra note 45, at art. 2. Protocol No. 6, adopted in 1983, predated similar provisions adopted by the United Nations and the inter-Americas. See Second Optional Protocol, supra note 45; Protocol to the American Convention, supra note 45. However, it must be noted that the reservation in Protocol No. 6 is broader than the wartime reservation in the Second Optional Protocol. For example, Protocol No. 6 does not include any requirement as to the seriousness or military nature of the crime. Compare Protocol No. 6, supra note 45, with Second Optional Protocol, supra note 45. Further, Protocol No. 6 does not condition reservation on wartime only, but includes time of impending war as well. Protocol No. 6, supra note 45, at art. 2. This broader exception in Protocol No. 6 would make it easier for any signatory country to carry out executions while still complying with the actual terms of the instrument. For example, arguably any State could claim that it is currently “wartime” considering the ongoing global war on terror. In fact, a State would not even need to go so far as to assert that it is engaged in war. It might simply cite the perpetual threat of international terrorism to fall under the “impending war” exception. Since the capital crime need not be military or of any requisite level of seriousness according to the exception, a State could easily continue to carry out routine executions today without technically violating the terms of Protocol 6, though it may suffer other political ramifications for doing so.

[50]. In 2002, the Council of Europe went beyond the scope of all prior existing agreements by adopting Protocol No. 13 to the European Convention on Human Rights. Protocol No. 13, supra note 45. Now ratified by thirty-seven European states, Protocol No. 13 boldly provides for total abolition of the death penalty in all circumstances including wartime or imminent threat of war. Protocol No. 13, supra note 45, arts. 2 and 3. See also Ratification of International Treaties, supra note 45. Seven more countries have signed Protocol No. 13, but have not yet ratified it. Ratification of International Treaties, supra note 45. Recall that the United Kingdom ratified Protocol No. 13 in 2003, in the midst of the ongoing war on terror and the conflict in Iraq. See supra notes 36-38 and accompanying text for a discussion of the practical foreign relations implications of the U.K.’s timely ratification. Protocol No. 13 markedly exceeds previous international agreements such as Protocol No. 6 in scope because there is no wartime exception. Compare Protocol No. 6, supra note 45, with Protocol No. 13, supra note 45. At first blush, Protocol No. 13’s novel call for total abolition certainly seems most significant of the four international agreements. However, in reality it does not impel nearly as much actual change as Protocol No. 6 does within Europe because the Council of Europe does not require new European Union members to sign on to Protocol No. 13. Protocol No. 13, supra note 45. Essentially, Protocol No. 13 merely codifies the already-existing state of law within most Council of Europe member States, while Protocol No. 6 actually requires retentionist countries to make affirmative changes to their capital punishment policies. Schabas, supra note 36, at 418-19.

[51]. Steiker, supra note 35, at 127 (suggesting that by requiring adherence to Protocol No. 6 as a prerequisite to joining the European Union, Western Europe essentially bribes Eastern Europe to abandon capital punishment and prevents abolitionist countries from backsliding); Warren, supra note 45, at 319-20 (describing Protocol No. 6’s abolitionism as “a potent lever exerted on human rights practices throughout the European sphere of influence”). See also Nora V. Demleitner, Is There a Future for Leniency in the U.S. Criminal Justice System?, 103 Mich. L. Rev. 1231, 1256 n.88 (2005) (noting that the European Union applied “substantial pressure on Turkey to relinquish use of the death penalty, and ratify Protocol 6”). For a critical view that European abolition of capital punishment is evidence that European countries are less democratic than the U.S., see Joshua Micah Marshall, Death in Venice, New Republic, July 31, 2000, at 14 (arguing that elitists in positions of political power throughout Europe have improperly trumped the desires of the people, who would prefer to reinstate the death penalty in most surveys).

[52]. See discussion supra note 49 (describing the potential loopholes in the language of Protocol No. 6’s wartime reservation).

[53]. See Demleitner, supra note 51.

[54]. A notable and intentional omission in this section of the comment is Massachusetts’ Governor Romney’s proposal dubbed the “foolproof” death penalty bill. For an in-depth presentation and examination of the Romney bill, see infra Parts III-IV.

[55]. Elliot, supra note 30; Steve Mills, George Ryan’s Final Campaign; Facing his Corruption Trial, Ex-Governor Tries to Shape his Legacy, Chi. Trib., Sept. 11, 2005, at C1.

[56]. Id.

[57]. Richard Harrington, The Art of Multitasking, Wash. Post, Sept. 9, 2005, at T9. “Illinois has imposed a moratorium on the death penalty that continues to this day. Why? Because they put 25 people on death row and it turned out that 13 of the 25 were innocent. That is 50% plus.” Joshua Dressler, The Wisdom and Morality of Present-Day Criminal Sentencing, 38 Akron L. Rev. 853, 865 (2005).

[58]. Illinois’ seemingly alarming error rate during this period was actually lower than the national average. James S. Liebman et al., Capital Attrition: Error Rates in Capital Cases, 1973-1995, 78 Tex. L. Rev. 1839, 1854 (2000).

[59]. Mills, supra note 55.

[60]. Id. Perhaps the extent of the proposed changes simply immobilized the startled legislature. Faced with the incredible failure rate in terms of accurate capital sentences, Governor Ryan for one certainly felt that a moratorium was a swift fix in contrast to trying to repair a badly torn system. See id.

[61]. Id.; Pam Belluck, Push in Massachusetts for a Death Penalty, N.Y. Times, Sept. 23, 2003, at A14.

[62]. See infra text accompanying notes 63-69.

[63]. State v. Marsh, 278 Kan. 520, 525, 102 P.3d 445, 452 (2004) (4-3 decision), rev’d sub nom, Kansas v. Marsh, 126 S. Ct. 2516 (2006).

[64]. Id. at 535, 102 P.3d at 458. Recall that Woodson and Gregg forbade states from enacting laws that impose mandatory death sentences, but upheld state laws that give jurors case-by-case discretion in deciding whether to apply capital punishment. See supra notes 25-28.

[65]. Marsh, 278 Kan. at 534-35, 102 P.3d at 457-58; Kan. Stat. Ann. § 21-4624(e) (2005).

[66]. The Supreme Court granted certiorari, heard arguments, and issued a ruling on the constitutionality of the Kansas statute this term. Marsh, 126 S. Ct. 2516. In its appeal, the state of Kansas asserted that finding the Kansas death penalty statute unconstitutional would have a domino effect, invalidating the death penalty statutes of other states as well, including Arizona and Idaho. Petition for Writ of Certiorari at 10, Kansas v. Marsh, 125 S. Ct. 2516, No. 04-1170 (2005). Indeed, the states of Arizona, Alabama, Colorado, Georgia, Idaho, Louisiana, Mississippi, Montana, Nevada, South Carolina, South Dakota, Tennessee, Texas, Virginia, and Washington have all filed briefs as Amici Curiae in support of Kansas. Amici in support of Petitioner, Kansas v. Marsh, 125 S. Ct. 2516, No. 04-1170 (2005). See also Report Cards for Kansas Judges?, Wichita Eagle (Kan.), Dec. 26, 2005, at B3 (reporting that state residents and legislators are angry with Kansas judges over the state high court’s ruling that overturned capital punishment). One way to explain the potent reaction in Kansas may be that a judicial death penalty moratorium is tougher for the public to swallow than a legislative one such as in Illinois, because of the countermajoritarian difficulty. On the other hand, it might simply be a matter of political affiliation, especially in light of New York’s relatively mild response to a similar judicial moratorium. Kansas is generally a politically conservative state compared to Illinois and especially compared to notoriously-liberal New York. For excellent maps and cartograms (maps that have been resized to account for population) that chart the political leanings of American states and counties based on the 2004 presidential election, see Michael Gastner et al., Maps and Cartograms of the 2004 US Presidential Election Results, November 17, 2004,

[67]. People v. LaValle, 3 N.Y.3d 88, 118-19, 817 N.E.2d 341, 358-59 (2004); N.Y. Crim. Proc. Law § 400.27 (McKinney 2004). The statute’s “deadlock instruction” informed the jury that if they could not unanimously sentence the defendant to death or to life in prison without parole, then the court would automatically impose a lesser penalty. LaValle, 3 N.Y.3d at 116-17, 817 N.E.2d at 356-57. The court held that this instruction tempted jurors to arbitrarily choose a sentence, out of fear that their difference of opinion would lead to the defendant’s eventual release under a lesser penalty. Id. at 118-19, 817 N.E.2d at 357-59. The LaValle court also found that the New York legislature was aware of the danger of coercive verdicts when it enacted § 400.27 in 1995. Id. at 120, 817 N.E.2d at 359. In fact, the court quoted a state senator who had directly raised the issue during debate:

How do you avoid the problem of a jury that is hung up on the issue of either life in prison without parole or the death penalty of putting additional pressure on the jurors, knowing that if they failed to agree they are going to face a penalty that is less than either of the two penalties that they are currently in dispute over?


[68]. Marnie Eisenstadt, 10 Years Later; Death Penalty On the Books, Off the Agenda, Post Standard (Syracuse, N.Y.), Sept. 25, 2005, at A1.

[69]. Id.; Death Penalty News, supra note 43, at 6.

[70]. Most scholars agree that the system is indeed inarguably flawed. See, e.g., Kenneth Williams, The Death Penalty: Can it be Fixed?, 51 Cath. U. L. Rev. 1177 (2002) (identifying major problems that plague the imposition of the death penalty including racist application, incompetent counsel, inaccessibility of DNA testing, reliance on eyewitness testimony and jailhouse informants, and prosecutorial misconduct).

[71]. See, e.g., Second Optional Protocol, supra note 45, at pmbl. (“The States Parties to the present [p]rotocol, [b]elieving that abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights . . . [c]onvinced that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life . . .”)

[72]. See, e.g., S. & H.R. 3834, 184th Gen. Ct., Reg. Sess. (Mass. 2005) [hereinafter Romney’s Death Penalty Bill] (proposing to reinstate the death penalty in Massachusetts pursuant to a “no doubt” standard that requires the presence of scientific evidence); Elizabeth R. Jungman, Beyond All Doubt, 91 Geo. L.J. 1065 (2003) (arguing in favor of a “beyond all doubt” standard as a viable partial solution to the problem of unconstitutional erroneous executions); Judge Leonard B. Sand & Danielle L. Rose, Proof Beyond All Possible Doubt: Is There a Need For a Higher Burden of Proof When the Sentence may be Death?, 78 Chi.-Kent L. Rev. 1359 (2003) (arguing in favor of raising the requisite standard of proof for death penalty imposition in order to mitigate execution of innocent people).

[73]. See, e.g., Robert Sherrill, Death Trip: The American Way of Execution, The Nation, Jan. 8, 2001,

[74]. “[O]ur narrowing jurisprudence . . . seeks to ensure that only the most deserving of execution are put to death . . . .” Atkins v. Virginia, 536 U.S. 304, 319 (2002); The Honorable Diane P. Wood, Our 18th Century Constitution in the 21st Century World, 80 N.Y.U. L. Rev. 1079, 1100 (2005) (“[The] Court . . . has steadily narrowed the circumstances under which the death penalty may be imposed . . . .”). See also Carol S. Steiker & Jordan M. Steiker, Should Abolitionists Support Legislative “Reform” of the Death Penalty? 63 Ohio St. L.J. 417, 418-19 (2002) (characterizing the last twenty-five years of Supreme Court death penalty jurisprudence as “reformist regulation”), and Joseph Margulies, Tinkering Through Time: A History of America’s Experiment with the Death Penalty, 92 Geo. L.J. 369, 399-400 (2004) (book review) (arguing that Furman and Gregg, taken together, set the Supreme Court on a path of “perpetual tinkering” with the system of capital punishment).

[75]. From 1977 to 1985, an average of five and a half persons were executed in the U.S. per year. U.S. Department of Justice Bureau of Justice Statistics, Executions, (last visited Nov. 4, 2005). From 1987 to 1994, that number jumped to an average of about twenty-three and a half persons per year. Id. From 1994 to 2005, the average shot up to sixty-five executions per year, with a spike of ninety-eight and a half executions in 1999, the highest number since 1951. Id. Increased crime cannot be blamed for the rising use of capital punishment, since the violent crime rate has in fact steadily fallen, at least in the past five years. Robert S. Mueller, III, Director, Federal Bureau of Investigation, Preliminary Semiannual Uniform Crime Report: January–June 2005 1 (2005), (tracking violent crime rates from 2001 through 2005, including murder, forcible rape, robbery, and aggravated assault). The increase in capital punishment despite falling violent crime can potentially be reconciled with the Supreme Court’s continual narrowing trend. See supra note 74 and accompanying text. Perhaps America is more comfortable now than ever with a narrowly tailored death penalty, and so we feel increasingly comfortable utilizing it. However, the fact that legislatures and courts cry out for further reforms suggests that this explanation cannot suffice. Alternatively, an overall societal shift toward conservativism over the last decade or so could be to blame for increased use of the death penalty, despite a narrowed application and a narrowed pool of eligibility due to falling crime.

[76]. Franklin E. Zimring, The Contradictions of American Capital Punishment 202 (2003) (“Sooner or later, both the executioner and the vigilante tradition will leave the American scene . . . .”).

[77]. [W]e worry that reforming our current practices of capital punishment may be analogous to replacing the electric chair with lethal injection; the reformed practice is unquestionably better (fairer, more humane) than the one rejected, but the choice to reform also carries the distinct possibility that it will normalize the underlying practice and avert the very critical gaze that gave rise to the reforming impulse, thus delaying, or even permanently preventing, full-scale abolition of capital punishment.

Steiker & Steiker, supra note 74, at 418.

[78]. Coker v. Georgia, 433 U.S. 584, 592 (1977) (White, J., plurality opinion); Enmund v. Florida, 458 U.S. 782, 797 (1982). The Coker Court held that a death sentence for the crime of rape was excessive and disproportionate, even in light of aggravating circumstances, and thus a violation of the Eighth Amendment. Coker, 433 U.S. at 598-99. Georgia’s death penalty statute at issue in Coker required the presence of at least one aggravating circumstance in order for juries to even have the option to impose a death sentence. Id. at 598. For rape, the jury had to find either that (1) the rapist had a prior conviction for a capital crime, (2) the rape occurred during commission of another capital crime, or (3) the rape was shockingly egregious. Id. at 598-99. In Coker, the defendant had raped his victim during an armed robbery in her home just hours after he had escaped from prison. Id. at 587. Considering those details, the jury found the presence of two aggravating circumstances and sentenced the defendant to death. Id. at 591. Coker’s new narrowed interpretation of the Eighth Amendment forbade States from imposing capital punishment on a criminal who “does not take human life.” Id. at 598. Five years after Coker, the Supreme Court narrowed the scope of the death penalty even further, prohibiting capital punishment for second-degree felony murder. Enmund, 458 U.S. at 787-88. In Enmund, the Court invalidated the death penalty for the unintentional killer on both retributive and utilitarian grounds. Id. at 798-801. It concluded that the threat of death can serve as a deterrent only for premeditated and deliberate murderers who make a “cold calculus” before deciding to act. Id. at 799. A death sentence is simply an overly severe punishment for the unintentional killer, and does not properly avenge his victim. Id. at 801. Scholars and researchers remain divided as to whether even intentional murderers ever make the sort of “cold calculus” that takes capital punishment into account. See generally Allan D. Johnson, The Illusory Death Penalty: Why America’s Death Penalty Process Fails to Support the Economic Theories of Criminal Sanctions and Deterrence, 52 Hastings L.J. 1101, 1116-20 (2001). To be fair, examination of the death penalty’s deterrent effect has produced mixed results, though most modern research indicates that capital punishment does not have a deterrent effect. See id. at 1116-20; Michael L. Radelet & Ronald L. Akers, Policy and Perspective: Deterrence and the Death Penalty: The Views of the Experts, 87 J. Crim. L. & Criminology 1 (1996).

[79]. Angelyn L. Miller, Constitutional Law: Can a Convicted Rapist Be Sentenced to Death for Raping a Child Under Twelve Years of Age?, 37 Washburn L.J. 187, 192 (1997).

[80]. Coker, 433 U.S. at 593. The Court has consistently looked to American conceptions of decency as articulated in the Coker Court’s use of the words “this country,” but Justices disagree as to whether international practice is also relevant in determining what constitutes prevailing public opinion. See case cited infra. Whether the Supreme Court should look to international law remains highly contentious even in today’s globalized world. Compare Thompson v. Oklahoma, 487 U.S. 815, 830-32 (1988) (O’Connor, J., plurality opinion) (noting the significance of international practice in ascertaining public opinion and determining that the Eighth Amendment prohibited execution of a fifteen-year-old defendant), with Stanford v. Kentucky, 492 U.S. 361, 369 n.1 (1989) (5-4 decision) (finding international practice totally irrelevant to the U.S. Constitution, and chastising the Thompson plurality for relying on it). See also Roper v. Simmons, 543 U.S. 551, 575-78 (2005) (5-4 decision) (referring extensively to international practice in determining that the death penalty for offenders under eighteen years of age is unconstitutionally disproportionate punishment), and Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002) (6-3 decision) (noting in a footnote that the world community added support for the conclusion that executing the mentally retarded violated the Eighth Amendment). It is part of the strategy of defense attorneys and abolitionists to introduce international law in death penalty cases through amicus briefs. See generally Harold Hongju Koh, Paying “Decent Respect” to World Opinion on the Death Penalty, 35 U.C. Davis L. Rev. 1085, 1112 (2002). International law can only bolster their position because the rest of the developed world is solidly aligned against capital punishment, in contrast to fluctuating domestic law and opinion. Id. at 1109-29.

[81]. Thompson v. Oklahoma, 487 U.S. 815, 830-31 (1988) (O’Connor, J., plurality opinion); Stanford v. Kentucky, 492 U.S. 361, 369 n.1 (1989).

[82]. Thompson, 487 U.S. at 838.

[83]. Stanford, 492 U.S. at 380.

[84]. Id. at 376, 380. Justice Scalia, writing for the majority in Stanford, seized the opportunity to make it very clear that he believed American standards of decency were alone dispositive, stating: “The practices of other nations…cannot serve to establish the first Eighth Amendment prerequisite, that the practice is accepted among our people.” Id. at 369 n.1.

[85]. Penry v. Lynaugh, 492 U.S. 302, 340 (1989). The Court acknowledged that the defendant John Paul Penry possessed the mental capabilities of a six-and-a-half year-old. Id. at 308. Nonetheless, the Court held that as long as juries considered mental retardation as a mitigating factor, they may appropriately impose a death sentence without violating the Eighth Amendment. Id. at 340.

[86]. Atkins v. Virginia, 536 U.S. 304, 321 (2002).

[87]. Id. at 315-16. The Atkins Court further determined that neither retributive nor utilitarian purposes justified executing the mentally retarded. Id. at 319-20. With regard to the retributive concern that a murderer must receive his “just deserts,” the Atkins Court noted that the “lesser culpability of the mentally retarded offender” was inconsistent with imposing the “most extreme sanction available to the State . . . .” Id. at 319. In terms of deterrence, the Court identified the mentally handicapped as incapable of making a premeditated calculus. Id. at 319-20. Their diminished capacity left them unable to process consequences, and thus the threat of death could not play a role in controlling their behavior. Id. at 318-20. In addition to the retributive and deterrence concerns, the Atkins court highlighted another reason that the mentally handicapped were uniquely unsuited for capital punishment. Id. at 320. Although mental retardation was formally considered a mitigating factor, the Court noted that it was actually a double-edged-sword. Id. at 321. The presence of mental retardation often meant that a jury would find future dangerousness an aggravating factor. Id. Moreover, the mentally handicapped could not convince juries of other mitigating factors, since they typically made terrible witnesses and offered little help to their counsel. Id. at 320-21.

[88]. Id. at 313-17.

[89]. Id. at 316 (The Court noted that only five states had actually carried out executions on the mentally handicapped since Penry.).

[90]. See discussion supra note 16 (suggesting that the Court relies on enacted laws to gauge public opinion because polls can be easily manipulated).

[91]. 543 U.S. 551 (2005).

[92]. Id. at 578. Considering the heinous facts of Roper, it is almost surprising that the Supreme Court was able to find the defendant less culpable than adult murderers. Seventeen-year-old Christopher Simmons detailed to friends his plan to commit burglary and murder. Id. at 556. He stated that he intended to break and enter a home, tie up his victim, and throw the victim off a nearby bridge. Id. He assured his cohorts that they would get away with the scheme because they were minors. Id. Sure enough, Simmons did break into the victim’s home, bound her with duct tape and electrical wire, and threw her from a railroad trestle. Id. at 556-57. Simmons later bragged about the premeditated killing. Id. at 557. Clearly, Simmons was not a sympathetic defendant.

[93]. Id. at 564-65. The Court’s language arguably represents a subtle departure from Atkins and its forerunners because it injects a subjective standard as the final word on what the norms of dignity require. See Alford, supra note 42, at 5 . The objective evidence of national opinion merely serves as a guide for the Court, which will substitute its own opinion for the nation in determining the scope of the Eighth Amendment. Roper, 543 U.S. at 567.

The beginning point is a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question. This data gives us essential instruction. We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles.

Id. at 564 (emphasis added). See Alford, supra note 42, at 5 (contrasting language in Roper with previous cases and arguing that there is a subtle difference). For an argument that the national consensus standard should be abolished altogether, Jason Mazingo, Roper v. Simmons: The Height Of Hubris, 29 Law & Psychol. Rev. 261, 283-87 (2005).

[94]. Roper, 543 U.S. at 564-65.

[95]. Id. at 564.

[96]. Id. at 565.

[97]. Id. at 565-66.

[98]. Id. at 567.

[99]. Id. at 567-68. In typical Atkins fashion, the Roper Court went on to identify the diminished capacity of youth as a factor that weighed against imposition of the death penalty from both retributive and utilitarian standpoints. Id. at 571. In terms of retribution, the Court branded juveniles as immature, susceptible to peer-pressure, subject to transitory personality traits, and thus undeserving of the state’s worst punishment. Id. at 569-71.

Whether viewed as an attempt to express the community’s moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult. Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity.

Id. at 571. In terms of deterrence, the Court summarily dismissed the idea that a teenage murderer makes any sort of cost-benefit calculus that takes capital punishment into account. Id. at 571-72. But in the same breath the Court found life imprisonment sufficiently daunting for a young person, thereby assuming that punishment does have a deterrent effect on the teenage criminal. Id. at 572. Again, the Court seems to be inconsistent and dismissive, making logical inductions that do not seem warranted based solely on the evidence.

[100]. See id. at 575-78. Much has been made of the Roper court’s emphasis on international practice. E.g., Alford, supra note 42 (devoting entire article to analyzing the constitutional comparativism aspect of the Supreme Court’s decision in Roper). See also discussion supra note 45.

[101]. Atkins v. Virginia, 536 U.S. 304, 317 n.21 (2002) (recognizing that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.”); Thompson v. Oklahoma, 487 U.S. 815, 830 & n.31 (1987) (O’Connor, J., plurality opinion) (noting the practices of “other nations that share our Anglo-American heritage, and by the leading members of the Western European community,” and observing that “[w]e have previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual.”); Enmund v. Florida, 458 U.S. 782, 796-97 n.22 (1982) (noting that “the doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe.”); Coker v. Georgia, 433 U.S. 584, 596 n.10 (1977) (White, J., plurality opinion) (“It is . . . not irrelevant here that out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue.”); Trop v. Dulles, 356 U.S. 86, 102-3 (1958) (Warren, J., plurality opinion) (“The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.”).

[102]. See, e.g., Atkins, 536 U.S. at 317 n.21 & 322.

[103]. Roper v. Simmons, 543 U.S. 551, 622-30 (2005) (Scalia, J., dissenting) (“In many significant respects the laws of most other countries differ from our law-including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself.”).

[104]. Id. at 622.

[105]. Id. at 622-23.

[106]. Id. at 623.

[107]. Compare Roper, 543 U.S. at 561-67 (discussing in dicta the lack of evidence of a national consensus for the rate of abolition of the death penalty for juveniles), with Atkins, 536 U.S. at 312-17 (discussing in dicta strong empirical evidence of a national consensus for the rate of abolition of the death penalty for the mentally retarded).

[108]. For a discussion of how Saddam Hussein’s recent execution could catalyze that political showdown, see Schabas, supra note 36, at 417-18.

[109]. Roper, 543 U.S. at 575-78 (“The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”). Scalia was unimpressed with the majority’s qualification. “The Court’s parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. ‘Acknowledgment’ of foreign approval has no place in [this Court’s] legal opinion . . . unless it is part of the basis for the Court’s judgment—which is surely what it parades as today.” Id. at 628 (emphasis omitted).

[110]. This would not be the first time the Supreme Court has acknowledged the relevance of a progressively globalized world in constitutional construction. E.g., Grutter v. Bollinger, 539 U.S. 306, 308 (2003) (holding that increased diversity in law school is a legitimate goal that does not violate the Fourteenth Amendment because diversity has become necessary for success in “today’s increasingly global marketplace”).

[111]. Roper, 543 U.S. at 617-30 (Scalia, J., dissenting) (“[A]ll the Court has done today, to borrow from another context, is to look over the heads of the crowd and pick out its friends.”).

[112]. Franklin E. Zimring, Op-Ed., A Death Knell for the Death Penalty?; Supreme Court’s Decision Concerning Those Under 18 Could Clear Path for Law’s Abolishment, Newsday (N.Y.), Mar. 4, 2005, at A49.

[113]. Id.

[114]. Roper, 543 U.S. at 575.

[115]. Id. at 577.

[116]. See, e.g., Williams, supra note 70; Holland, supra note 17.

[117]. See supra Parts I-II.

[118]. Facts and Figures, supra note 29. See Atkins v. Virginia, 536 U.S. 304, 319 (2002) (describing capital punishment as the most severe punishment suitable only for severe cases). This figure is not unusual. Nine prisoners were exonerated from death row in 2003, four in 2002, and five in 2001. Jungman, supra note 72, at 1065. Research puts the error-rate in capital trials at a whopping 68% between 1973 and 1995. Liebman, et al., supra note 58, at 1849-52 (“The ‘overall error rate’ is the frequency with which capital judgments that underwent full inspection were overturned at one of the three stages due to serious error.”) (emphasis omitted).

[119]. Facts and Figures, supra note 29.

[120]. See, e.g., Stephanie Armour, Wrongly Convicted Walk Away With Scars, USA Today, Oct. 13, 2004, at 1A (describing Ray Krone’s release from death row due to innocence).

[121]. See generally Michael L. Radelet, et al., In Spite of Innocence: Erroneous Convictions in Capital Cases 273-75 (1992) (admitting that it is impossible to pin down the precise number of innocents that have been executed, but arguing that evidence of twenty-three probable wrongful executions, coupled with hundreds of exonerations, demonstrates “virtual proof” that some innocent persons have been put to death).

[122]. Id. at 273.

[123]. Nation in Brief, Wash. Post, Apr. 10, 2002, at A24.

[124]. Don Sevrens, Case Files; DNA in the Courtroom, San Diego Union-Tribune, July 27, 2003, at G1.

[125]. Id.

[126]. Id.

[127]. In Krone’s first trial, the jury convicted him and sentenced him to death. See id. After three years on death row, Krone’s attorney won him a new trial and the jury convicted him again, this time to life in prison. See id.

[128]. Armour, supra note 120; Pat Cahill, After 10 Years, DNA Wins Wrongly Convicted Man Freedom Back from Death Row, Republican (Mass.), Nov. 5, 2005, at E1.

[129]. Sevrens, supra note 124.

[130]. Id.

[131]. Nation in Brief, supra note 123.

[132]. Sevrens, supra note 124. Those who have been wrongly convicted and imprisoned have no legal right to their former jobs once they have been exonerated. Armour, supra note 120. Furthermore, former inmates find that new employers attach a stigma to anyone who has been in prison, regardless of the reliability of the conviction. Id. Before his conviction, Ray Krone worked for the U.S. post office in Phoenix, Arizona. Id. He now travels to tell his story and speaks out against capital punishment. Id. Those who are wrongfully convicted and later released also do not usually receive financial compensation for their detention. Torsten Ove, State Doesn’t Give Dime To The Innocent; Only 20 States Compensate Those Wrongfully Jailed, Pittsburgh Post-Gazette, Aug. 7, 2005, at A1. Only twenty states provide varying amounts for each year spent wrongly incarcerated, and President Bush only just raised the federal rate from a flat $5,000 to $100,000 per year for wrongful capital convictions. Id.

[133]. See generally Eckroth, supra note 13. The lingering innocence problem, despite multitudinous judicial and legislative reforms, is a clue that capital punishment may not be fixable at all. Examination of the proposed reforms meant to solve the remaining innocence problem further belies the notion that a foolproof death penalty is possible at all. See infra Part IV.B.

[134]. Holland, supra note 17.

[135]. Id.

[136]. Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting from denial of certiorari).

[137]. See Holland, supra note 17. See also Atkins v. Virginia, 536 U.S. 304, 317 n.21 (2002).

[138]. Charles Lane, O’Connor Expresses Death Penalty Doubt; Justice Says Innocent May Be Killed, Wash. Post, July 4, 2001, at A1. Justice Ginsberg, too, has publicly expressed concern over capital punishment’s failings, though not regarding the problem of executing the innocent. Id. In a speech in Washington in 2001, Justice Ginsberg highlighted the reality of inadequate defense counsel in many capital trials, stating: “I have yet to see a death case, among the dozens coming to the Supreme Court on the eve of execution petitions, in which the defendant was well represented at trial.” Id.

[139]. Id.

[140]. Id.

[141]. See id. (referencing the death penalty as a recently-resurfacing political issue).

[142]. Id. See also Stanford v. Kentucky, 492 U.S. 361, 380-82 (1989) (O’Connor, J., concurring), and Roper v. Simmons, 543 U.S. 551, 587-607 (2005) (O’Connor, J., dissenting).

[143]. Brown v. Sanders, 126 S. Ct. 884, 894 (2006) (holding that a California jury’s consideration of an invalid special circumstance was harmless error because the jury could properly consider the circumstances as aggravating factors); State v. Holmes, 361 S.C. 333, 605 S.E.2d 19 (S.C., 2004), cert. granted, 126 S. Ct. 34 (2005) (asking whether the state’s rules regarding presenting evidence of another’s guilt deprives a defendant of his due process rights to present a complete defense, vacated and remanded, 126 S. Ct. 1727 (2006)); House v. Bell, 386 F.3d 668 (6th Cir., 2004), cert. granted, 125 S. Ct. 2991 (2005) (asking what are appropriate standards of proof for granting new hearings to capital defendants claiming actual innocence based on new DNA evidence, rev’d and remanded, 126 S. Ct. 2064 (2006)); State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004), cert. granted, 125 S. Ct. 2517 (2005) (appealing decision that struck down Kansas’ death penalty statute, which had allowed execution when mitigating and aggravating circumstances are in equipoise, rev’d and remanded, 126 S. Ct. 2516 (2006)); State v. Guzek, 336 Or. 424, 86 P.3d 1106 (2004), cert. granted, 544 U.S. 998 (2005) (asking whether evidence of guilt or innocence can be presented at sentencing phase), vacated and remanded, 546 U.S. 517 (2006).

[144]. State v. Guzek, 336 Or. 424, 86 P.3d 1106 (2004), cert. granted, 544 U.S. 998 (2005), vacated and remanded, 546 U.S. 517 (2006).

[145]. Brief for Petitioner State of Oregon at i, State v. Guzek, 336 Or. 424, 86 P.3d 1106 (2004) (No. 04-928).

[146]. Oregon v. Guzek, 546 U.S. 517 (2006).

[147]. See generally Romney’s Death Penalty Bill, supra note 72 (proposing to reinstate the death penalty in Massachusetts pursuant to a “no doubt” standard that requires the presence of scientific evidence); Jungman, supra note 72 (arguing in favor of a “beyond all doubt” standard as a viable partial solution to the problem of unconstitutional erroneous executions), and Sand & Rose, supra note 72 (arguing in favor of raising the requisite standard of proof for death penalty imposition in order to mitigate execution of innocent people). The American Law Institute likewise suggested that capital punishment should be excluded in the presence of any residual or lingering doubt, though the Institute took no position on the desirability of the death penalty overall. Model Penal Code § 210.6(f) (1962). Not all scholars agree that a “beyond all doubt” schema is the best option, and some have proposed other alternative reforms. See, e.g., Symposium, Rethinking the Death Penalty: Can We Define Who Deserves Death?, 24 Pace L. Rev. 107 (2003). One speaker at this symposium argues that proof to absolute certainty is an impossibility and proposes instead proof beyond a reasonable doubt and to a moral certainty, with the aggravating factors outweighing the mitigating factors. Id. at 173-74. It is not really clear how the speaker’s new formulation is actually different from Romney’s proposal. It is refreshing that the speaker acknowledges up front that proof to an absolute certainty is impossible. However, Romney himself acknowledged as much, dubbing his standard “virtual certainty”; a level of sureness accurate enough to preclude execution of innocents. Jennifer Fenn, Romney Seeks Error-Proof Death-Penalty Legislation; Bill Faces Uphill Battle in the House, Lowell Sun (Mass.), Sept. 24, 2003, at Today’s Headlines (quoting Governor Romney). Romney’s standard would not, in fact, assuredly protect the innocent, but it is not evident how the speaker’s proposal would do any better. It seems like the speaker does not actually improve the suggested absolute proof reforms, but only more accurately describes them. Since 100% certainty is unattainable, even the most confident jury would only ever be convinced beyond a reasonable doubt and to a moral certainty. It seems that this state of utmost confidence would also naturally include more aggravating factors than mitigating factors. It just is not clear what the speaker’s proposal adds to the equation. It merely acknowledges that no juror can ever be absolutely sure, and identifies the reality of the closest, next-best alternative just as Romney has done.

[148]. Romney’s Death Penalty Bill, supra note 72. See, e.g., Raphael Lewis, Romney Files Death Penalty Bill; Measure Sets Out Tight Restrictions, Boston Globe, Apr. 29, 2005, at A1 (referring to the legislation as Romney’s “‘foolproof death penalty law’”).

[149]. Lewis, supra note 148.

[150]. Zimring, supra note 112.

[151]. Romney’s Death Penalty Bill, supra note 72, at § 2. Massachusetts is currently one of fourteen U.S. states that has no capital punishment statute. Lewis, supra note 148. The state Supreme Judicial Court abolished the Massachusetts death penalty law in 1984, and no execution has occurred in Massachusetts since 1947. See Scott Ehlers, State Legislative Affairs Update, Champion (Wash. D.C.), July 29, 2005, at 40.

[152]. Romney’s Death Penalty Bill, supra note 72, at § 10 (emphasis added).

[153]. Id.

[154]. Id. at § 1. It also includes video and audiotapes, tool marks, tire tread, other physical pattern or impression evidence, and “other categories of scientific evidence.” Id. The Krone and Leskie stories illustrate that forensic evidence, while strong, is not infallible. See supra notes 1-12 and accompanying text. See also supra notes 123-132 and accompanying text.

[155]. Romney’s Death Penalty Bill, supra note 72, at §§ 11, 23.

[156]. Fenn, supra note 147. Romney insists that his bill would preclude errors in capital punishment trials, to the extent humanly possible. “There can be no guarantee but one can reach the point, I presume, which I’ll call a virtual certainty a level of certainty that assures that we would not ever execute the innocent.” Id.

[157]. In terms of the technology alone, DNA matches, for example, are extremely reliable. Hilary S. Ritter, It’s the Prosecution’s Story, but They’re Not Sticking to It: Applying Harmless Error and Judicial Estoppel to Exculpatory Post-Conviction DNA Testing Cases, 74 Fordham L. Rev. 825, 849 (2005).

[158]. For details of the Leskie case, see supra notes 1-12 and accompanying text.

[159]. Richard C. Dieter, Executive Director, Death Penalty Information Center, Testimony on Costs of the Death Penalty and Related Issues at the New York State Assembly: Standing Committee on Codes, Judiciary, and Correction (Jan. 25, 2005) (noting that the exact figures vary, but all studies agree that a capital punishment system is much more expensive than a system in which the maximum penalty is life imprisonment).

[160]. Romney’s Death Penalty Bill, supra note 72, at § 11.

[161]. Id. at §§ 12, 23.

[162]. Jonathan Saltzman, DAs Rap Governor’s Death Penalty Plan, Boston Globe, May 4, 2004, at A1. Keating based his estimate on other states with capital punishment, such as Texas and Idaho. Id. However, considering the novel and multitudinous safeguards the Romney bill imposes, Keating’s estimate could very well be at the extreme low end.

[163]. Id.

[164]. California, for example, in 2005 was over $25 billion in debt. News Release, Phil Angelides, California State Treasurer, State Treasurer Angelides Unveils “California Debt Clock” in Chico, Warning Against More Borrowing to Paper Over Deficits (Aug. 31, 2005), [hereinafter California Debt Clock]. Governor Schwarzenneger’s budget, signed in 2005, had a built-in deficit of around $5 billion. See id. In 2005, the state of California spent $4 billion just repaying the state’s debt, which is more than it spends on the entire University system per year. Id. According to the U.S. Treasurer, the current federal public debt is over $8.5 trillion. U.S. Department of the Treasury, Bureau of the Public Debt, The Debt to the Penny, Oct. 24, 2006, [hereinafter U.S. Public Debt].

[165]. Saltzman, supra note 162.

[166]. Id.

[167]. Id. State Prosecutor Keating says that the $6.8 million budget covers about 19,000 criminal complaints handled by his office every year. Id.

[168]. Lewis, supra note 148.

[169]. Seth Effron & Raphael Lewis, Romney Warns of Theocracy Danger, Oct. 11, 2005, Boston Globe, at B1 (claiming that Massachusetts’ surplus for the last fiscal year was $1.2 billion); Sridhar Pappu, The Holy Cow! Candidate, Atlantic Monthly, Sept. 1, 2005, at 106 (putting the 2004 surplus at $700 million by Governor Romney’s estimate).

[170]. See California Debt Clock, supra note 164; U.S. Public Debt, supra note 164.

[171]. See James R. Acker, When the Cheering Stopped: An Overview and Analysis of New York’s Death Penalty Legislation, 17 Pace L. Rev. 41, 178 (1996); John J. Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan. L. Rev. 791, 795 (2005); Thomas Kleven, Is Capital Punishment Immoral Even if it Deters Murder?; 46 Santa Clara L. Rev. 599, 625 (2006).

[172]. See e.g., Karen E. Crummy, Crime Plans Called Vague, Mayor Hopefuls’ Strategies Weighed, Denver Post, May 30, 2003, at B1; Don Finefrock, Penelas: Boost County Police Budget, Miami Herald, Sept. 1, 1999, at B4; Alice Mannette, Event Features More Than 50 Authors, Daily News Leader (Staunton, Va.), Oct. 21, 2004, at 7G; Prepared Statement of Mel Martinez, Secretary Before The Senate Committee On Banking, Housing And Urban Affairs, Fed. News Service, June 12, 2003.

[173]. For an in-depth discussion of historical judicial reliance on fingerprint evidence, despite its flaws, see generally Simon A. Cole, Grandfathering Evidence: Fingerprint Admissibility Rulings from Jennings to Llera Plaza and Back Again, 41 Am. Crim. L. Rev. 1189 (2004).

[174]. Blaine Harden, FBI Faulted in Arrest of Ore. Lawyer; Study by Forensic Experts Cites Mistakes in Fingerprint Identification, Wash. Post, Nov. 16, 2004, at A2.

[175]. Jennifer L. Mnookin, Editorial, The Achilles’ Heel of Fingerprints, Wash. Post, May 29, 2004, at A27.

[176]. Harden, supra note 174.; Mnookin, supra note 175 (quoting U.S. officials).

[177]. Harden, supra note 174.; Jonathan Saltzman, SJC to Hear Arguments on Banning Fingerprint Evidence, Boston Globe, Sept. 5, 2005, at A1; Mnookin, supra note 175.

[178]. Mnookin, supra note 175.

[179]. See id. (noting a similar mistake made in Massachusetts). See also Saltzman, supra note 177.

[180]. Tamara F. Lawson, Can Fingerprints Lie?: Re-weighing Fingerprint Evidence In Criminal Jury Trials, 31 Am. J. Crim. L. 1, 24 n.79 (2003).

[181]. See Saltzman, supra note 177. See also Jennifer L. Mnookin, Editorial, A Blow to the Credibility of Fingerprint Evidence, Boston Globe, Feb. 2, 2004, at A14.

Cowans was recently released after startling revelations made it clear that he was not the shooter. DNA tests on clothing left near the crime scene and on a saliva specimen from the glass did not match Cowans’ DNA. The prosecution still insisted it had the right guy – after all, his fingerprint was on that glass. But when that fingerprint was reanalyzed by experts, it turned out not to match Cowans after all.

[182]. Commonwealth v. Patterson, 445 Mass. 626, 626-28, 840 N.E.2d 12, 14-15 (2005).

[183]. Id. The prosecutor’s case against Patterson had been based largely on four partial prints found on the victim’s vehicle. Id. at 627, 840 N.E.2d at 14. No single partial print alone could be reliably matched to the defendant’s fingers. Id. at 627-28, 840 N.E.2d at 14-15. However, the medical examiner had assumed that the prints were made simultaneously, and thus had collectively analyzed them to compile a total print that identified Patterson. Id. at 627, 840 N.E.2d at14.

[184]. Id. at 627-28, 645-54, 840 N.E.2d at14-15, 26-32.

[185]. Steve Mills & Maurice Possley, Texas Man Executed on Disproved Forensics;
Fire that Killed His 3 Children Could Have Been Accidental, Chi. Trib., Dec. 9, 2004, at C1.

[186]. Steve Mills, Texas May Have Put Innocent Man to Death, Panel Told; Nobody Would Listen, Lawyer, Expert Say, Chi. Trib., Apr. 20, 2005, at C7.

[187]. Mills & Possley, supra note 185.

[188]. Id.

[189]. Mills, supra note 186.

[190]. See generally id.

[191]. See Scott Gold & Lianne Hart, Inmate Freed After 17 Years on Death Row, L.A. Times, Oct. 7, 2004, at A14.

[192]. Id.

[193]. Id.

[194]. Id. Willis told police that he had run from the burning house after attempting to wake his housemates, but police found no burn marks on the soles of his feet. Id. They also thought it was suspicious that Willis and his cousin, who was also his close friend, managed to escape the house while the three women inside did not. See id.

[195]. Amended Order Granting Petition for Writ of Habeas Corpus, Willis v. Cockrell, No. P-01-CA-20, 2004 WL 1812698, at *1 (W.D. Tex. Aug. 9, 2004).

[196]. Gold & Hart, supra note 191.

[197]. Id.; Mills & Possley, supra note 185, accord Mills, supra note 186.

[198]. Gold & Hart, supra note 191.

[199]. Silla Brush, Free and Clear: ‘I’m not Bitter’ Justice Unlocks Ernest Willis’ Death-Row Cell After 17 Years, Dallas Morning News, Oct. 6, 2004, at 1A; Gold & Hart, supra note 191.

[200]. Gold & Hart, supra note 191.

[201]. See generally id.; see generally Mills & Possley, supra note 185; see generally Mills, supra note 186.

[202]. See generally Gold & Hart, supra note 191; Mills & Possley, supra note 185; Mills, supra note 186.

[203]. Gregg v. Georgia, 428 U.S. 153, 182-83, 187 (1976).

[204]. Carol S. Steiker & Jordan M. Steiker, A Tale of Two Nations: Implementation of the Death Penalty in “Executing” Versus “Symbolic” States In the Unites States, 84 Tex. L. Rev. 1869, 1875 (2006).

[205]. See supra notes 123-132 and accompanying text.

[206]. Sevrens, supra note 124.

[207]. Id.

[208]. Ritter, supra note 157, at 849.

[209]. I focus this section on human errors in DNA evidence because DNA evidence is least subject to scientific error and is most often thought to be infallible. Of course, less accurate types of evidence are also subject to human error, political pressure, and perjury. See e.g. Edward Humes, Fingerprint Evidence Not Good Science, Scholar Says, Orange County Reg., Oct. 27, 2004 (asserting that human errors and mix-ups in analyzing fingerprint evidence may occur as often as one in five matches).

[210]. Lawson, supra note 180, at 4-5 n.10 (quoting Simon Cole, Fingerprints Not Infalliable, Nat’l L.J., Feb. 23, 2004, at 22).

[211]. See supra notes 1-12 and accompanying text.

[212]. Id.

[213]. Maurice Possley et al., Scandal Touches Even Elite Labs; Flawed Work, Resistance to Scrutiny Seen Across U.S., Chi. Trib., Oct. 21, 2004, at C1.

[214]. Id.

[215]. Id. By 1993, DNA testing had become more routine in labs across the country, compared to its virtual non-existence in 1982 when the jury convicted Washington. Id.

[216]. Id.

[217]. Id.

[218]. Id.

[219]. Maria Glod & Michael D. Shear, DNA Analysis Incorrect In Murder; Audit Cites Pressure From Gilmore before Man was Pardoned, Wash. Post, May 7, 2005, at B1.

[220]. Possley et al., supra note 213.

[221]. Id.

[222]. Id.

[223]. Steve Mills, Top Lab Repeatedly Botched DNA Tests; Audit: Errors Pass Reviews In Virginia Death Row Case, Chic. Trib., May 8, 2005, at C8. Disturbingly, Ban is now a member of the panel that determines national DNA testing standards. Id.

[224]. Possley et al., supra note 213.

[225]. Id.

[226]. Glod & Shear, supra note 219.

[227]. Christina Nuckols, DNA Lab Review Finds Only One Major Error, Virginian-Pilot, (Norfolk, Va.) Sept. 17, 2005, at B3.

[228]. Scott Allen, Pathologist Tackles the Crisis in State Crime Labs, Boston Globe, Aug. 15, 2005, at C3.

[229]. Nuckols, supra note 227.

[230]. Allen, supra note 228.

[231]. Id.

[232]. Ron Browning, Crime Lab Probe Nets No Charges, Ind. Lawyer, Feb. 9, 2005, at 24.

[233]. Id.

[234]. Tina Daunt & Steve Berry, LAPD Says Evidence Destroyed; Crime: Authorities No Longer Have DNA Samples in at Least 1,100 Sexual Assault Cases, A Report Says. Ignorance of Updated Law is Blamed, L.A. Times, July 30, 2002, at 1.

[235]. Mary Foster, Katrina May Have Washed Away DNA Evidence (Feb. 3, 2006), available at

[236]. Steve McVicker, Crime Lab’s Standards Called ‘Figment'; Convict’s Lawyer Questions Truth Past Testimony, Houston Chron., Aug. 2, 2004, at B1. Although the trial was a rape prosecution and not a capital trial, the same implications carry over to the death penalty arena. That the head of a crime lab would commit perjury underscores the possibility that innocent defendants could make it past a jury conviction and onto death row without having committed the crime for which they are condemned. Again, this story is especially disconcerting because it involves the Texas crime labs, whose evidence sends far more people to death than any other state in the country. See Elliot, supra note 30 (stating that Texas possesses a relentless execution system).

[237]. McVicker, supra note 236.

[238]. “I think state’s attorneys in this case and anywhere in the country can live with the death penalty or live without the death penalty. What we find difficult to abide by is a death penalty scheme with an impossible burden of proof.” Daniel C. Vock, Prosecutors Speak Against ‘No Doubt’ in Death Penalty, Chi. Daily L. Bull., May 4, 2005, at 1; H.B. 2704, 94th Gen. Assemb., Reg. Sess. (Ill. 2005). The ‘no doubt’ bill passed the House in March 2005, but was defeated by the Senate Rules Committee. Sean Collins-Stapleton, Letter to the Editor, No Doubt Law Would Save Innocent; A Person Should Not Be Sentenced to Death Unless There is No Doubt of Guilt, Chi. Sun Times, May 29, 2005, at 42.

[239]. Vock, supra note 238.

[240]. Id. For another angle of criticism toward the “no doubt” proposals, see Erik Lillquist, Absolute Certainty and the Death Penalty, 42 Am. Crim. L. Rev. 45, 46 (2005) (arguing that the absolute certainty instruction will in fact have little or no effect on outcome of cases, and arguing instead for changes in jury selection and methods of instructing jurors) and Erik Lillquist, Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability, 36 U.C. Davis L. Rev. 85, 176, 194-95 (2002) (arguing that “beyond reasonable doubt” standard is preferable because of its flexibility).

[241]. William Paley, The Principles of Moral and Political Philosophy, 173 (1821). Contra Samuel Romilly, Observations on the Criminal Law of England, 75 (1813) (“Nothing is more easy than thus to philosophize and act the patriot for others . . . .”).

[242]. There are a handful of people who have spent time, in some cases many years, on death row, for crimes they genuinely did not commit . . . . Many will claim that even one innocent person put to death is an intolerable number, but those who make that argument are demanding an impossibility—a perfect system. Such errors are episodic, not epidemic, and merit the most rigorous review, precisely as occurs in 21st century capital jurisprudence.

Joshua Marquis, The Myth of Innocence, 95 J. Crim. L. & Criminology 501, 519-21 (2005). Marquis criticizes the focus on innocence in death penalty debates. Id. at 508, 521. He asserts that the number of wrongful executions is overstated by abolitionists, though he does admit that some number of innocents, however minimal, will inevitably be erroneously executed. Id. at 517.

[243]. See Kris Axtman, What’s Behind Decline in Death Sentences, Christian Sci. Monitor, Nov. 22, 2004, at 3 (suggesting that Marquis believes the benefits outweigh the risks). Marquis arrives at his conclusion with no resort to case law or Constitutional precedent, which is odd considering his legally-schooled position as a prosecutor in Oregon. See Marquis, supra note 242, at 508. His article also unfairly paints abolitionists as purely emotion-driven, moral ivory-tower types. See id. at 505, 521. Marquis claims that unbiased, reasonable intellectual honesty should be at the heart of meaningful debate, but he himself uses hyperbole throughout his entire article to criticize abolitionists as wealthy “glitterati” “folk hero[es]” who “relish[] the comparison to those who fought slavery in the 19th century.” Id. at 501, 503, 511. They are “prepared to allow ten guilty men to walk free in order to spare one innocent,” and live in an “alternate universe . . . that . . . hurls doe-eyed innocents onto death row through the malevolent machinations of corrupt cops and district attorneys . . . .” Id. at 509, 518. Marquis’ outlandish criticisms are truly ironic considering his conclusion that death penalty opponents’ credibility is weak because they are “reckless with the truth.” Id. at 521.

[244]. See generally Marquis, supra note 242.

[245]. Id. at 502, 518-20. Marquis’ figure of approximately thirty innocent death row exonerees is lower than most sources estimate. See Radelet et al., supra note 121, at 17 (stating that 416 cases of wrongful convictions exist).

[246]. See generally Marquis, supra note 242.

[247]. Herrera v. Collins, 506 U.S. 390 (1993).

[248]. Id. at 393.

[249]. Id. at 398.

[250]. Id.

[251]. Id. at 408 n.6. This does not necessarily mean that the Court found the question exceedingly contentious; it is a fundamental canon of constitutional construction that the Court not decide constitutional questions unless unavoidable. E.g., Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944) (“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality…unless such adjudication is unavoidable.”).

[252]. Herrera, 506 U.S. at 408 n.6.

[253]. Id. at 393.

[254]. Id. at 393, 398.

[255]. See id. at 418-19 (stating that petitioner’s evidence is insufficient to invoke the constitutional claim).

[256]. Id. at 398.

[257]. Id. at 399 (quoting Patterson v. New York, 432 U.S. 197, 208 (1977)) (internal quotation marks and citations omitted). The Court here cited to Patterson v. New York for the proposition that due process has an end limit. Id. Patterson, however, involved a second-degree murder and not a capital case. Patterson, 432 U.S. at 198. Where the punishment is most severe, the Court acknowledged that it has consistently required a heightened standard of due process. See, e.g., Beck v. Alabama, 447 U.S. 625, 637 (1980).

[258]. Herrera, 506 U.S. at 399 (“In capital cases, we have required additional protections because of the nature of the penalty at stake.”).

[259]. Id.

[260]. Id. at 419 (O’Connor, J., concurring, joined by Kennedy, J.); Id. at 430-31 (Blackmun, J., dissenting, joined by Stevens, J., and Souter, J.).

[261]. Id. at 419.

[262]. Id. at 437.

[263]. Id. at 431-32 (“I think it is crystal clear that the execution of an innocent person is ‘at odds with contemporary standards of fairness and decency’….Executing an innocent person epitomizes ‘the purposeless and needless imposition of pain and suffering.’”) (internal citations omitted).

[264]. Id. at 436-37.

[265]. Samuel Alito is predicted to accelerate the Court toward the right on the capital punishment issue. Alito Hearings Will Test Domestic Spying Program’s Political Resonance, White House Bull., Jan. 3, 2006. Since O’Connor was somewhat unpredictable—she voted to uphold capital punishment for the mentally retarded and juveniles, but indicated in Herrera that even one wrongful execution would be unconstitutional—this could shift the balance of the Court toward upholding the punishment even in light of an erroneous execution. See Herrera, 506 U.S. at 419. However, a shift from Herrera assumes that Justice Roberts would take Justice Rehnquist’s place among the four justices in Herrera who did not indicate that erroneous executions are categorically unconstitutional. Such assumption is not necessarily warranted. Roberts did recently vote with the conservative majority in a technical question holding a California jury’s consideration of invalid special circumstances in a death penalty sentencing phase harmless error. Brown v. Sanders, 126 S. Ct. 884, 894 (2006). However, Brown was a highly technical procedural question, by no means defining Roberts’ official stance on the many tough questions surrounding capital punishment. Plus, before becoming a judge, Roberts did pro bono work on death penalty appeals, which could suggest a more liberal stance toward capital punishment than his predecessor. Tony Mauro, Death Penalty Disquiet Echoes Earlier Time; Supreme Court Issues Batch of Conflicting Decisions, 185 N. J. L.J. 287 (2006).

[266]. The Supreme Court will only take up the issue after hard, scientific evidence proves in a particular instance that the U.S. has in fact executed an innocent person. Many thought that the recent post-execution DNA tests for Virginian Roger Keith Coleman would be that catalyst, but the tests instead proved that Coleman was guilty. DNA Testing Proves Executed Va. Prisoner’s Guilt, Fox News, Jan. 13, 2006,,2933,181542,00.html. Actually, the likelihood of ever finding scientific proof of a wrongful execution might be harder than it seems. DNA samples are often retained, but some prosecutors and state attorney generals have fervidly opposed post-execution testing for various reasons. See Laurence Hammack, Coleman’s Prosecutors Welcome DNA Testing, Roanoke Times, Feb. 29, 2004, at B1 Opponents of the test in the Coleman case asserted that prosecutors as well as the victim’s families deserve finality; that the governor should have “let sleeping dogs lie.” Id. (noting that the two lawyers who actually prosecuted Coleman eventually withdrew their opposition to post-execution testing). But the real reason that prosecutors often oppose DNA tests after execution is likely more pragmatic than principled. Post-execution DNA testing is expensive and could be unwieldy if laws required it in all capital convictions. More importantly, capital punishment supporters know that even a single indisputably wrongful execution would call the entire system into question.

[267]. Roper v. Simmons, 543 U.S. 551, 575-78 (2005); Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002).

[268]. Roper, 543 U.S. at 575.

[269]. Recall that some justices already made their opinions clear in Herrera that executing an innocent violates the Constitution. Herrera v. Collins, 506 U.S. 390, 419 (1993) (O’Connor, J., concurring, joined by Kennedy, J.); Id. at 430-31 (Blackmun, J., dissenting, joined by Stevens, J., and Souter, J.).

[270]. Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackman, J., dissenting from denial of certiorari).

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