PAPER FOR AMERICAN LAW INSTITUE: CAROL STEIKER AND JORDAN STEIKER;
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Background: The American Law Institute dropped its support of the death penalty in 2009 after its members perused a paper written by Carol Steiker, Harvard Law School, and Jordan Steiker. University of Texas Law School. One of the major reasons the Institute cited for dropping this support was the likelihood, especially given the availability and reliability of DNA testing, that some persons sentenced to death will later, and perhaps too late, be shown to have not committed the crime for which they were sentenced. One of the sections of the influential paper raises the treatment of "innocence" by America's criminal justice system, as follows:
"Just as McCleskey effectively precludes challenges to racial discrimination in capital sentencing (at least challenges based on patterns of outcomes over time), the Court’s doctrine also makes virtually no place for constitutional consideration of claims of innocence.
In Herrera v. Collins, the Court rejected petitioner’s claim of actual innocence as a cognizable constitutional claim in federal habeas review.
The Court held that while claims of actual innocence may in some circumstances open federal habeas review to other constitutional claims that would otherwise be barred from consideration, the innocence claims themselves are not generally cognizable on habeas.
The Court assumed – without deciding – that a “truly persuasive” showing of innocence would constitute a constitutional claim and warrant habeas relief if no state forum were available to process such a claim.
But, the Court found that Herrera’s claim failed to meet this standard.
More recently, the Court has suggested just how high a threshold its (still hypothetical) requirement of a “truly persuasive” showing of innocence would prove to be.
In House v. Bell, the petitioner sought federal review with substantial new evidence challenging the accuracy of his murder conviction, including DNA evidence conclusively establishing that semen recovered from the victim’s body that had been portrayed at trial as “consistent” with the defendant actually came from the victim’s husband, as well as evidence of a confession to the murder by the husband and evidence of a history of spousal abuse.
The Court held that this strong showing of actual innocence was the rare case sufficient to obtain federal habeas review for petitioner’s other constitutional claims that would otherwise have been barred, because no reasonable juror viewing the record as a whole would lack reasonable doubt.
But even this high showing was inadequate, concluded the Court, to meet the “extraordinarily high” standard of proof hypothetically posited in Herrera.
Unlike innocence, the problem of inadequate counsel has been
squarely held to undermine the constitutional validity of a conviction.
Despite the fact that “effective assistance of counsel” is a recognized constitutional right, the scope of the right and the nature of the remedy have precluded the courts from being able to ensure the adequacy of representation in capital cases.
Perhaps in response to repeated accounts of extraordinarily poor lawyering in capital cases, this daunting standard of proof suggests that even if the Court does eventually hold that some innocence claims may be cognizable on habeas, such review will be extraordinarily rare.
Thus, the problem of dealing with the possibility of wrongfu convictions in the capital context (like the problem of dealing with patterns of racial disparity) has been placed in the legislative rather than the constitutional arena.
The reliance on the political realm to deal with the issue of wrongful convictions is less troubling than such reliance on the issue of racial disparities, because there is far more public outcry about the former rather than the latter issue. But the problem of wrongful convictions in the capital context has proven to be larger and more intractable than might have been predicted.
The large numbers of exonerations in capital cases may be due in part to the fact that many of the systemic failures that lead to wrongful convictions are likely to be more common in capital than other cases. Moreover, courts have been resistant both to providing convicted defendants with plausible claims of innocence the resources (including access to DNA evidence) necessary to make out their innocence claims, and to granting relief even when strong cases have been made. Finally, larger- scale reforms that might eliminate or ameliorate the problem of wrongful convictions are often politically unpopular, expensive, or of uncertain efficacy. (See section on “Erroneous Conviction
The entire paper by Carol Steiker and Jordan Steiker can be found by clicking on Google search - at the following address - and then scrolling to the bottom where it is included as "Annex B."
http://www.google.ca/search?q=%22report+to+the+ALI+concerning+capital+punishment%22+steiker&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a
Harold Levy...hlevy15@gmail.com;
