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42 Tulsa L. Rev. 277 (2006-2007)
Is It Constitutional to Executive Someone Who Is Innocent (And If It Isn't, How Can It Be Stopped following House v. Bell)

handle is hein.journals/tlj42 and id is 285 raw text is: IS IT CONSTITUTIONAL TO EXECUTE SOMEONE WHO IS INNOCENT (AND IF IT ISN'T, HOW CAN IT BE STOPPED FOLLOWING HOUSE V. BELL)? David R. Dow,* Jared Tyler,** Frances Bourliot,*** Jennifer Jeans**** We begin with a question that might seem ridiculous: does the Constitution prohibit the execution of someone who is actually innocent? Remarkably, this question remains open. In this article, we discuss how a death row inmate who has strong evidence of actual innocence can gain legal relief in postconviction proceedings on those grounds in the aftermath of the Supreme Court's decision in House v. Bell. 1 Much of our analysis is applicable to all criminal cases, not just death penalty cases. In certain respects, however, death penalty cases are unique. Several states provide for special procedural rules in capital cases, and the so-called death is different doctrine generates a more robust set of constitutional claims for capital defendants and death-sentenced inmates than for other actors in the criminal justice arena.2 Consequently, although much of our analysis may well have broader application, our focus is on capital cases. The general issue we are addressing concerns a death-sentenced inmate who identifies new evidence that, viewed in the context of all the evidence, suggests that he3 is innocent of the crime (as distinguished from innocent of the sentence).4 Necessarily, * University Distinguished Professor, University of Houston Law Center. I am grateful to the University of Houston Law Foundation for financial support. The argument also benefited from the opportunity to address this issue at the National Innocence Network Conference at the University of Washington School of Law and from conversations and e-mail exchanges with Nina Morrison at the Innocence Project in New York. In addition, the material presented in Appendix A and Appendix B was collected and analyzed in cooperation with the Texas Appleseed Foundation and Texas StandDown. ** Staff Attorney, Texas Defender Service. *** Research Fellow, Texas Innocence Network. **** Staff Attorney, Nevada Legal Services. 1. 126 S. Ct. 2064 (2006). 2. See e.g. Gardner v. Fla., 430 U.S. 349 (1977); Woodson v. N.C., 428 U.S. 280 (1976). Justice Scalia has been on a mission to jettison this basic idea. E.g. Atkins v. Va., 536 U.S. 304, 352-53 (2002) (Scalia, J., dissenting). 3. We use the masculine pronoun throughout this article because nearly all death row inmates are men. 4. Because a death penalty trial is actually two trials-the jury determines whether the defendant committed a death-eligible crime at the first trial and, assuming the defendant was found guilty of a death- eligible offense at the first trial, determines whether the defendant should be sentenced to death at the second trial-it is possible for a death row inmate to be guilty of the offense but improperly condemned to death. It is therefore possible, though semantically clumsy, for someone to be innocent of a sentence. See e.g. Sawyer v. Whitley, 505 U.S. 333 (1992).

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